SHER SAMAND KHAN vs ADDITIONAL DISTRICT JUDGE, BHAKKAR and 3 others

' MUHAMMAD AFZAL LONE, J.---This judgment shall dispose of C.P. 589/L/92 and C.P. 593/L/92, as the same property is the subject-matter thereof.

2. The facts are that Mst. Sher Khanum respondent owned the land measuring 286 Kanals, 9 Marlas in village Behal Daggar, Tehsil and District Bhakkar. Zafar Ali Khan respondent, acting as her Attorney on the strength of deed of general power of attorney dated 6-5-1980, out of the said land, sold away an area measuring 186 Kanals, 1 Marla to his brother Sardar Ali Khan and 100 Kanals to Allah Bakhsh respondent. Mst. Sher Khanum filed a suit for declaration that the deed of power-of- attorney was a forged document. Consequently a challenge was also thrown to the validity of two sale deeds and the mutations sanctioned on the foundation thereof. She claimed to be the owner of the land. The suit was filed by her through her attorney and husband namely Sakhi Gul Khan, which was dismissed by. The trial Court. However, the plaintiff's first appeal was accepted and the suit decreed in her favour. The petitioner's revision before the High Court was dismissed in limine on 2-5-1992. This dismissal is under challenge in C.P. No.593/L/92.

3. The facts leading to the institution of the other petition are that the land transferred to Sardar Ali Khan was later on alienated by him by way of sale to the petitioner. It is contended that a dispute arose between the parties which was referred to Arbitration and the Arbitrator's award made rule of the Court vide Civil Court's judgment dated 15-9-1983. Mst. Sher Khanum through her husband filed an application under section 12(2), C.P.C. For cancellation of the said decree. It was disallowed by the trial Court, but on revision the learned Additional District Judge accepted the same vide his order dated 18-2-1992, against which the petitioner's writ petition was dismissed in limine on 18-3- 1992. He now seeks leave to appeal from the High Court's order.

4. Both the First Appellate Court as well as the High Court for good reasons rendered a concurrent finding that the deed of power-of-attorney is a forged document. This finding, in the course of hearing of these petitions, has not been seriously contested before us, and what is emphatically argued is that the husband of Mst. Sher Khanum did not hold any power-of-attorney from her; that as no such document was filed in the Court, the suit was not competently filed.

5. From the perusal of the record we find that this objection is not reflected in the written statement and no issue was framed in this behalf. Had the petitioner raised this plea in the written statement, the respondent might have placed the deed in question on the trial Court's file. This contention was also raised before the High Court, but was turned down; with which we are not persuaded to differ.

The transactions are also hit by the rule laid down by this Court in Fida Muhammad v. Pir Muhammad Khan (PLD 1985 SC 341).

6. As regards the other petition, the learned counsel's grievance is that the petitioner purchased the land from Sardar Ali Khan about 2/1-2 years after its acquisition by the latter, the transaction was routed through Arbitration proceedings and award made rule of the Court in accordance with the law. The submission is that, in the circumstances of the case, the application under section 12 (2), C.P.C. Was misconceived.

7. There is no substance in these submissions. Since the decree of the Civil Court, as held by the High Court, was procured by fraud and misrepresentation the matter fell within the mischief of section 12 (2) ibid. In any case, the suit of Mst. Sher Khanum having been decreed, with which the High Court did not interfere, the proceedings culminating in the High Court's order brought under challenge in C.P. 589/L/ 92 are merely consequential in character.

' Both the petitions having been found without merit, are dismissed and the leave prayed for refused.