PLJ 2001 SC 291
[Appellate
Jurisdiction]
Present:
munir A. sheikh and mian
muhammad ajmal, JJ. ABDUL RAHIM-Petitioner
versus
MUKHTAR AHMAD and 6
others-Respondents C.P.L.A. No. 1084-L/2000, decided on 6.11.2000.
(On appeal from the judgment of the Lahore High Court, Multan Bench Multan dated
20.3.2000 passed in C.R. No. 430-D/86)
Transfer of Property
Act, 1882 (IV of 1882)--
—S. 54-Constitution
of Pakistan
(1973), Art. 185(3)--Sale executed by respondent (attorney) on basis of irrevocable power of attorney- Petitioners
suit challenging validity of power of attorney executed by him in favour of respondent and sale executed by such
respondent on basis of the same were
decreed by trial Court but such finding was reversed by Appellate Court as also by the High
Court-Validity-Power of attorney executed
"by petitioner in consideration of Rs. 20,000/- was irrevocable which he admittedly had received from
respondent-Sale-deed executed by
Attorney in favour of vendees was for consideration of specified amount which showed that there was no substantial
difference between the consider of
power of attorney and that of sale-deeds-Concurrent findings of two Courts below being based on
evidence on record did not suffer from misreading or non-reading of
evidence-Evidence of a witness could
not be brushed aside only because of his relationship, if otherwise the same was disinterested and credible-Leave to
appeal was refused in circumstances. [Pp.
292 & 293] A, B
1994 SCMR 818; 1997 SCMR 1811. Mr. M. Shamshir Iqbal
Chughtai, ASC for Petitioner. Ch. Attaullah, ASC for Respondents Nos. 1 to
6. Date
of hearing: 6.11.2000.
judgment
Munir A. Sheikh,
J.-This petition for leave to appeal is directed against the judgment of the Lahore High Court, Multan
Bench, Multan dated 20.3.20000 through which Civil Revision No.
436-D/86 filed by the petitioner has
been dismissed.
2. The suit filed by the petitioner challenging the
validity of the power of attorney
executed by him in favour of Mukhtar Ahmad Respondent No. 1 and also the sale executed by Respondent No.
1 in pursuance thereof in favour of Respondents Nos. 2 to 6, was decreed
through judgment dated 31.3.1982 by
the trial Court In appeal filed by the respondents, the findings recorded by the trial Court, on reappraisal of
evidence, were reversed by the First
Appellate Court through judgment dated 6.5.1986 and it was held that irrecovable general power of attorney was given by
the petitioner to Respondent No. 1 in
lieu of consideration of Rs. 20,000/-. The petitioner filed Civil Revision No. 436-D/86 before the Lahore
High Court, Multan Bench, Multan,
which has been dismissed through impugned judgment dated 20.3.2000, against which leave to appeal has been
sought.
3.
The respondent in order to discharge onus to prove the
power of attorney
has not only produced the receipt and its marginal witness but has also examined expert witness who reported that
the disputed thumb impressions on the receipt and the power of attorney tally with his
specimen thumb
impressions obtained by the Court The evidence of expert witness is corroborated
by Mukhtar Ahmad respondent.
4.
Learned counsel for the petitioner submits that Faiz Ali
DW-2 is close
relative of Mukhtar Ahmad respondent, therefore, his evidence could not be
relied upon. Learned counsel relied upon Shumal Begum vs. Gulzar Begum (1994 SCMR 818) and Faqir
Muhammad vs. Pir Muhammad (1997 SCMR1811).
5.
We are afraid, the argument of the learned counsel has no
merit as
the evidence of a witness cannot be brushed aside only because of bis relationship if
otherwise it is disinterested and1 credible. In the first quoted judgment, it was held
that in case of gift, it was necessary that the decision should be made by
the principal as to in whose favour the same was to be made and the attorney
could not exercise power in favour of person of his own choice. The
principle laid down in this judgment does not apply to the facts and
circumstances of the case in hand as the attorney did not execute any gift without the decision of the
principal in this case. The second judgment is on the question that in case the
attorney wants to sell the land to any person closely related to him, he
shall have to consult the principal. This principle, in our view, would also
not be applied where the power of attorney was executed in lieu of
consideration with a clear understanding that
the land had been sold to the attorney. The sale-deeds executed by the attorney to the two vendees are for a
consideration of Rs. 33,000/- and as there
is no substantial difference between the consideration of the power of attorney
that of the sale-deeds, for, it appears that the petitioner must be in the need of money and had received the payment
from the attorney, as such, the power
of attorney in the present case was irrevocable having been executed after receipt of Rs. 20,000/- as
consideration, therefore, the judgments
referred by the learned counsel are not applicable to the facts and circumstances of the instant case.
6. For the foregoing
reasons, the concurrent findings of two immediate Courts below on a pure question of
fact have not been shown to have suffered from mis-reading or non-reading of any
material piece of evidence. This petition, therefore, has no merit, which is dismissed
and leave refused.
(A.A. J.S.) Leave refused.
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