Mst. FIRDOS NAZIA AJMAL Versus Mst. IQBAL BEGUM
ORDER
SYED ARSHAD ALI, J.--- Petitioners Mst. Firdos Nazia Ajmal etc. have filed the instant revision petition, challenging the validity of judgment and decree dated 26.04.2017 passed by learned Additional District Judge-VI, Abbottabad, whereby the appeal filed by the petitioners against the judgment and decree dated 21.12.2012 passed by learned Civil Judge-VII, Abbottabad was dismissed.
2. Brief but relevant facts leading to the institution of the present revision petition are that respondent/plaintiff filed a suit for declaration to the effect that she is still owner of the suit property bearing Khasra No.768 measuring 02 kanals 14 marlas situated at Habibullah Colony, Abbottabad. The sale deed bearing Nos.373 and 374 dated 28.04.1995, mutation Nos.7357, 7358 dated 18.07.1995 and mutation No.7595 dated 28.11.1995 whereby the suit property was transferred to the petitioner on the basis of general power of attorney bearing No.938 attested on 22.02.1995 and registered at the office of Sub-Registrar, Karachi are illegal, totally wrong, without consideration, fictitious, forged and ineffective upon the rights of plaintiff and are liable to be cancelled. In relief "Bey" of the plaint, permanent injunction has been sought against the defendants to the effect that defendants be restrained to claim ownership, interfere, make construction or change the nature of the suit property on the basis of fictitious and forged power of attorney. Similarly, in prayer "Jeem" possession of the suit property has been sought by demolishing construction if any made by the defendants during pendency of the suit. It is further alleged in the plaint that she is owner of the property, however, she is residing in Germany since long. When she came to Pakistan on 06th December, 1996 and visited the suit property, she found material lying over there for construction. She was informed that the suit property has been transferred through a forged power of attorney. Further alleged in the plaint that the plaintiff has neither sold the suit property nor has executed any power of attorney in favour of anyone including defendant No.1. The plaintiff has never come to Pakistan at the time of execution of alleged power of attorney. The power of attorney is totally wrong, illegal and fictitious because plaintiff is resident of District Bannu Pakistan and has also citizenship of Germany whereas the power of attorney has been shown attested and registered at Karachi which is ineffective upon the rights of the plaintiff and is liable to be cancelled. She alleged in the plaint that defendant No.1 has committed fraud and forgery by executing the fictitious power of attorney upon which efforts have been made to grab the valuable property of the plaintiff. The plaintiff has not executed any such power of attorney in favour of defendant No.1. The plaintiff has also submitted application to the Sub-Registrar, Abbottabad for registration of criminal case against defendant No.1 upon which an FIR was lodged against defendant No.1 in Women Police Station, Abbottabad.
3. On being summoned defendants Nos.2 to 7 appeared before the learned trial Court and contested the suit by filing their written statement. Defendants Nos.2 to 6 in their written statement have taken the plea that they had settled the transaction with the plaintiff in the year 1994 and she was paid Rs.50,000/- in advance towards the total payment of Rs.7,02,000/- and the remaining amount was paid to the plaintiff through her attorney at the time of execution of the sale deeds. Whereas defendant No.7 claims to be bona fide purchaser of the suit property. In support of her claim, plaintiff produced Registry Muharrir of Sub-Registrar, Abbottabad, who produced copies of sale deed dated 12.5.1997 of land measuring 01 kanal 17 marlas Ex:PW1/1 and sale deed dated 13.05.1997 in favour of Muhammad Nawaz, Mst. Shakeela Nawaz, Mst. Abida Bibi and Muhammad Youaf, whereby 27 marlas land was transferred to them. Both these transactions were executed on the basis of general power of attorney by Mst. Zahida Khalid. Whereas plaintiff herself appeared as PW-4 in support of her claim. Defendants produced Ghulam Daud as DW-1, who is the deed writer, and had scribed the sale deeds in favour of defendants. Mazhar Ali, Head Registration Muharrir of Sub-Registrar, Abbottabad appeared as DW-2, who produced original register Behi No.1 Jild No.251 having entries in respect of deeds from 14.03.1995 to 15.05.1995 which include deed No.373 dated 19.04.1995 (power of attorney). However, he showed his inability to produce attested copy of deed No.938. Abdul Jalil, who is contractor by profession appeared as DW-3, has stated that while he was constructing a house for one Haji Ali Asghar, he had also witnessed the construction of a house by Colonel (R) Muhammad Ajmal Khan at the disputed property whereas Haji Ali Asghar appeared as DW-4, who has stated that Colonel (R) Muhammad Ajmal Khan had purchased the suit property for sale consideration of Rs.3,50,000/- and had raised construction on the same. Colonel (R) Muhammad Ajmal Khan defendant appeared as DW-5. During his examination he produced copy of agreement to sell alleged containing the signature of the plaintiff dated 18.4.1995. Muhammad Ayub, previous Sub-Registrar Abbottabad appeared as DW-6, who has confirmed his signature on the sale deed No.373 dated 19.04.1995. The learned trial Court after hearing learned counsel for parties, vide judgment and decree dated 21.12.2012 decreed the suit in favour of the plaintiff. Aggrieved of the same, the present petitioners filed an appeal before learned District Judge, Abbottabad, which was assigned to learned Additional District Judge-VI, Abbottabad for adjudication. The learned appellate Court vide judgment and decree dated 26.04.2017 dismissed the appeal of the petitioners and maintained the judgment and decree passed by the learned trial Court, hence the instant revision petition.
4. The learned counsel appearing on behalf of the petitioners has argued that in plaint, the respondent No.1 has claimed that at the time of execution of the alleged general power of attorney she was in Germany. However, she could not produce her passport in support of her claim. He further argued that since the respondent No.1 was alleging fraud, therefore, she was supposed to have established the same before the Court that the plaintiff claimed that the impugned deeds were executed through fraud, hence burden was on the respondent No.1/plaintiff, which she could not discharge, therefore, both the Courts below have erred in law by decreeing the suit of respondent No.1/plaintiff. He placed reliance on PLD 1983 SC(AJ&K) 56, 1986 SCMR 306, PLD 1991 Supreme Court 102, NLR 1994 CLJ 230, PLD 1994 Karachi 106, 1996 MLD 1064, PLD 1997 Karachi 6, 1998 CLC 401, 2000 SCMR 1647, PLD 2003 Karachi 45, PLD 2006 Lahore 371, 2007 SCMR 870,2009 SCMR 1256 and 2015 YLR 789.
5. Arguments heard and record perused.
6. The claim of the petitioner/defendant mainly hinges on two documents, firstly receipt dated 18.02.1995 exhibited as Ex.DW-5/1, whereby the plaintiff has allegedly agreed to transfer the suit property to defendants and has received earnest money of Rs. 50,000/- the perusal of the contents of this receipt would show that it an agreement to sell of the suit property by the Plaintiff with the Defendant No.2. Secondly, the irrevocable general power of attorney dated 27.02.1995 registered at the office of Sub Registrar Karachi by the Plaintiff authorizing defendant No. 1 to sell the suit property. Hence, the moot point for determination is whether these two documents were established at the trial by the defendants.
7. First I take Ex.DW-5/1, according to which the plaintiff had undertaken to have received an amount of Rs. 50,000/- as earnest money against the total sale consideration of Rs. 70,2000/- of the land measuring 2 Kanals 14 Marlas situated in Khasra No. 768. This document has been witnessed by Malik Sohail Amjid and Syed Khalid Aman Shah. Hence, from perusal of the contents of this document, it is an agreement to sell therefore, can be safely be held to have been required to be attested under Article 17(2)(a) of Qanun-e-Shahadat Order, 1984. "Order" and as such has been attested by the two witnesses. Since, the defendant relies on this document, therefore was required to have established the same as mandated by Article 79 of the "Order" by producing the marginal witnesses in support of the execution qua the contents of the document. Indeed when the defendant asserts purchasing the property on the basis of agreement to sell and the subsequent power of attorney then it was incumbent upon him to have established the contents of aforesaid two documents by producing marginal witnesses as per the mandate of Article 79 of Order. The provisions of Article 79 of Order are mandatory in nature and non-compliance thereof would obviously render the document inadmissible in evidence. In "Hafiz Tassaduq Hussain v. Muhammad Din PLD 2011 SC 241" the august Supreme Court held:-
"The command of the Article 79 is vividly discernible which elucidates that in order to prove an instrument which by law is required to be attested, it has to be proved by two attesting witnesses, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence. The powerful expression "shall not be used as evidence" until the requisite number of attesting witnesses have been examined to prove its execution is couched in the negative, which depicts the clear and unquestionable intention of the legislature, barring and placing a complete prohibition for using in evidence any such document, which is either not attested as mandated by the law and/or if the required number of attesting witnesses are not produced to prove it. As the consequence of the failure in this behalf are provided by the Article itself, therefore, it is a mandatory provision of law and should be given due effect by the Courts in letter and spirit. The provisions of this Article are most uncompromising, so long as there is an attesting witness alive capable of giving evidence and subject to the process of the Court, no document which is required by law to be attested can be used in evidence until such witness has been called, the omission to call the requisite number of attesting witnesses is fatal to the admissibility of the document. See Sheikh Karimullah v. Gudar Koeri and others (AIR 1925 Allahabad 56). The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order, 1984. (See Ram Samujh Singh v. Mst. Mainath Kuer and others (AIR 1925 Oudh 737). The resume of the above discussion leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 the attestation as required therein is absolute and imperative. And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise."
While dealing with a similar issue in "Mst. Rasheeda Begum v. Muhammad Yousaf 2002 SCMR 1089", the august Supreme Court held:-
Unquestionably, an agreement to sell involves future obligations, therefore, if reduced to writing and executed after coming into force of Qanun-e-Shahadat Order, 1984, it is required by sub-Article (2)(a) of Article 17 thereof to be attested by two male or one male and two female witnesses, as the case may be. The said sub-Article is worded thus:--
"(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law--
(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly;"
The execution of such an agreement to sell is to be proved in accordance with the provisions of Article 79 of Qanun-e-Shahadat Order, 1984 which read as under:--
"If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the executant of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
The defendant did not produce the witnesses of this document, hence the agreement to sell upon which the Petitioners relies could not be established at the trial.
8. Now moving to the general power of attorney bearing No. 938 which is allegedly executed by the respondent No.1/plaintiff in favour of respondent No.2/defendant No.1, whereby defendant No. 1 was illegally authorized to sell the property. General power of attorney which purports to create interest in any immovable property is not only required to be registered under the Registration Act but is also required to be attested by two witnesses as required under Article 17 of the Order. In the present case, the general power of attorney has been allegedly registered at the office of Sub-Registrar, Karachi and this fact has been verified by the Office of Sub-Registrar, Abbottabad from Sub-Registrar, Karachi before attesting the impugned sale deeds. However, in the present case when the plaintiff disputes execution of general power of attorney then the present petitioners being beneficiary were required to have established the contents of the general power of attorney and has also to establish that it was validly executed. Indeed it is settled principle of law that mere registration of a document will not prove its valid execution as the contents of the same are to be established through manner and mode as provided by the Order.
9. The perusal of general power of attorney shows that it has been witnessed by Saleem Qureshi Advocate and Khalid Aman. Some efforts have been made by the petitioners/defendants to show that Khalid Aman is dead, however, the petitioner did not produce the other witness i.e. Saleem Qureshi, Advocate nor has put forward any explanation about non-production of the said witness. In Maqsood Ahmed and others v. Salman Ali PLD 2003 SC 31, it was held by the august Supreme Court that:- "therefore, whenever a document is executed with an authority to the agent to deal with financial matters of the property on behalf of the Principal and also making him responsible for future obligation either to the Principal in respect of the affairs of the property or with third person with whom he is dealing on behalf of the former, the document squarely falls with in the categories of the instrument which are required to be attested by two men or one man and two women in terms of Article 17(2)(a) of the Order and before a court of law contents of document are required to be proved as per the methodology of Article 79 of the Order. Learned High Court dealt with this aspect of the case quite exhaustively with reference to precedent law as well as definition of expression "financial" as per its dictionary meaning and in view of the background of this case noted above."
10. Lastly while addressing the contention of defendant No.7 who claims to be bona fide purchaser of the suit property suffice it to mention that the said defendant No. 7 also derives his title on the basis of the disputed general power of attorney. Since the said power of attorney could not be established and its execution has been denied by the plaintiff then, the defendant No. 7 cannot claim any protection under section 41 of Transfer of Property Act. Neither the alleged transferor i.e. Colonel (R) Muhammad Ajmal and Defendant No. 1, alleged attorney were the ostensible owners, nor they had a valid authority to transfer the property to defendant No. 7. Indeed it is established principle of law that a person cannot transfer to other, title or right better than he himself owns or possesses. Section 41 of the Transfer of Property Act creates an exception to the aforesaid rule. Hence, while availing the protection of section 41, the burden of proof is on beneficiary to establish that all the ingredients of section 41 have been fully complied with. For better understanding the proposition, wisdom can be borrowed from the ratio of judgment in case of "Ghulam Rasool and others v. Noor Muhammad and others 2017 SCMR 81" which provides:-
"We have heard the learned counsel for the parties and find that the rule of bona fide purchaser as enunciated by section 41 ibid is founded upon the principles of equity. The said section reads as under:-
"41. Transfer by ostensible owner.---Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."
The essential ingredients of this section are, (a) that the transferor was the ostensible owner; (b) that the transfer was made by consent express or implied of the real owner; (c) that the transfer was made for consideration; and (d) that the transferee while acting in good faith had taken reasonable care before entering into such transaction. These four imperative/essential ingredients must co-exist in order for a person to take the benefit of the equitable principle, however, merely on account of some error committed by the revenue staff in the revenue record unintentional or deliberate or motivated which excludes the name of the lawful owner of the property therefrom and the property, shown to be in the name of some other person who is not the owner of the whole or a part thereof by itself shall not deprive and denude the true and actual owner from the title of the property and this by no means can be construed that the transfer, to the person claiming protection of the rule of equity ibid by a person who actually is not the owner is being made by consent express or implied of the real owner. This even is not the case of the appellants that the transfer to them was with the consent of two brothers whose names have been illegally and unauthorizedly removed from the column of ownership by the revenue authorities, so as to bring the case within the purview of section 41 ibid. In the instant case as it is an undisputed fact that the property in question was owned by Muhammad Siddique who was survived by four sons (named above) and they all became the joint owners of the property. The entries in the revenue record to that effect were made and are vivid and uncontroverted. How and why the names of the two brothers from the revenue record were removed is absolutely obscure. It is not the case of the present appellants that the said brothers had transferred their share in the joint property (purchased by them) in favour of the other two brothers by any lawful transaction/means i.e. by exchange, gift, sale, relinquishment etc. Thus if the appellants had taken reasonable care in going into the genesis of the ownership, and examining the record in depth, which they as purchasers were required to do so, they would have found out that the property being an inherited property was originally owned by Muhammad Siddique which devolved upon his legal heirs i.e. four brothers jointly and that all these four brothers still continue to be the co-owners of the property; and that the exclusion of Ghulam Muhammad and Jewan's name from the revenue record is not on account of any legal or authorized transaction or mode, rather for either a human error or because of some tainted reason. Be that as it may, the mere omission of Ghulam Muhammad and Jewan's name in the revenue record in no manner can be construed to mean that they had consented either express or implied for the sale in favour of the appellants and that the appellants took reasonable care in good faith, within the contemplation of condition No.(iv) of section 41 ibid. Obviously such unauthorized sale to the extent of their share in the sold property was void and that the case of the appellants do not squarely qualify the test of section 41 and, therefore, they could not take up the plea of bona fide purchaser and their sale could not be protected on that account. Resultantly, this appeal has no merit and is hereby dismissed."
The ratio of the aforesaid judgment fortifies the law laid down in Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53), Muhammad Afzal v. Matloob Hussain and others (PLD 2006 SC 84), Mst. Noor-un-Nisa and another v. Ghulam Sarwar and 6 others (1994 SCMR 2087) and Moulana Riaz ul Hassan v. Muhammad Ayub Khan and another (1991 SCMR 2513).
11. With these observations, this petition is dismissed in limine.
ZC/309/P Revision dismissed.