Mst. Nighat Sultana alias Kherogai Vs Javed Akhtar and 31 others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

C.R No. 864-P of 2019.

Mst. Nighat Sultana alias Kherogai Vs Javed Akhtar and 31 others Mr. Muhammad Rustam Khan, Advocate, for petitioner. Present: Mr. Fayaz Ahmad, Advocate, for respondent Date of hearing: 30.06.2026.

JUDGMENT

MUHAMMAD NAEEM ANWAR, J.- Through the instant Civil Revision, instituted under Section 115 of the Code of Civil Procedure, 1908 (C.P.C.), the petitioner has called in question the legality, propriety and correctness of the concurrent judgments and decrees rendered by the learned Courts below, i.e., the judgment and decree dated 17.06.2014 passed by the learned Civil Judge-XI, Peshawar, and the judgment and decree dated 29.04.2019 passed by the learned Additional District Judge-XII, Peshawar, whereby Civil Suit No.17/1 instituted by respondent No.2 was decreed, whereas Civil Suit No.47/1 instituted by the present petitioner was dismissed. The petitioner now seeks reversal of both the judgments and decrees, primarily on the grounds that the alleged power of attorney, on the strength whereof her immovable property was purportedly alienated, was never proved in accordance with law; that the original instrument was deliberately withheld from the Court; that no lawful authority to alienate the property was ever established; that no sale consideration was paid to her; and that the entire transaction was vitiated by fraud, misrepresentation and misuse of the alleged authority.

2.The controversy arises out of two connected civil suits involving the same property. Respondent No.2 instituted Civil Suit No.17/1 on 31.10.2009 seeking recovery of possession of four Marla of land forming part of property comprised in Khasra Nos.179, 268/181 and 182 situated in Revenue Estate Swati, along with consequential relief of permanent injunction. His claim was founded exclusively upon Mutation No.2560, attested on 10.05.2009, whereby it was alleged that the petitioner had transferred her proprietary share through her

brother, Javed Akhtar, acting as her attorney under a registered power of attorney. It was alleged that Javed Akhtar, being the duly constituted attorney of the petitioner, had lawfully executed the sale in favour of respondent No.2 and delivered proprietary rights therein. Consequently, respondent No.2 asserted himself to be owner to the extent of four Marla out of the total holding measuring twenty-one Marla and sought recovery of possession from the petitioner. Upon receipt of summons in the aforesaid suit, the petitioner instituted Civil Suit No.47/1 for declaration, cancellation of mutation and permanent injunction. She categorically denied every material assertion advanced by respondent No.2. Her case, in substance, was that she had never executed any power of attorney in favour of her brother Javed Akhtar or in favour of any other person. She specifically asserted that she had never appeared before the Sub-Registrar for execution or registration of any such instrument; that the alleged power of attorney bearing Registration No.45 dated 26.01.1996 was a forged, fictitious and fabricated document; that she had never authorized anybody to alienate her immovable property; that she had never executed any sale deed nor received a single penny towards sale consideration; and that Mutation No.2560 dated 10.05.2009, allegedly entered on the basis of the disputed power of attorney, was illegal, void, collusive, mala fide, without lawful authority and wholly inoperative against her proprietary rights.

3.Since the subject matter of both the suits was one and the same property and the validity of Mutation No.2560 constituted the common issue requiring adjudication, both the suits were consolidated for the purpose of recording evidence and decision. The learned trial Court, after recording evidence produced by both sides, vide consolidated judgment dated 17.06.2014 decreed Civil Suit No.17/1 instituted by respondent No.2 and dismissed Civil Suit No.47/1 filed by the petitioner. Feeling aggrieved, the petitioner preferred an appeal which was also dismissed by the learned Additional District Judge-XII, Peshawar through judgment dated 29.04.2010, and thus maintained the findings recorded by the trial Court, hence, the present Civil Revision.

4.Learned counsel for the petitioner vehemently contended that both the Courts below completely misread the evidence and ignored settled principles governing proof of powers of attorney and alienation of immovable property. It was argued that the petitioner never executed the alleged power of attorney; never appeared before the registering authority; and never authorized her brother Javed Akhtar to transfer her property. It was further contended that the original power of attorney was never produced before the learned trial Court, nor was its execution proved through any marginal witness or other legally admissible evidence. In the absence of proof of execution, the alleged instrument could not legally form the basis of any transfer of title. He went on to say that even according to the respondents, no evidence whatsoever was produced establishing payment of sale consideration to the petitioner. Column No. 13 of Mutation No. 2560 merely shows that a sum of Rs. 800,000/- was paid; however, no receipt, acknowledgment, account statement, independent witness, or any other documentary evidence was produced to establish that the said amount was actually paid. Mere recital in a mutation, it was argued, is not proof of payment of consideration. It was lastly submitted that even assuming the existence of a valid power of attorney, there is absolutely no evidence that the petitioner had specifically authorized the attorney to alienate the suit property or that any prior consent or special permission had been obtained from her before effecting the sale and, thus, according to him, the entire transaction was void ab initio and incapable of conferring any lawful title upon respondent No.2. In support of his submissions, learned counsel placed reliance upon Pervaiz Akhtar v. Mst. Farida Bibi (PLD 2023 SC 628), Maqsood Ahmad v. Salman Ali (PLD 2003 SC 31), Jamil Akhtar v. Las Baba (PLD 2003 SC 494), Fida Muhammad v. Pir Muhammad Khan (PLD 1985 SC 341), Muhammad Yasin v. Dost Muhammad (PLD 2002 SC 71), Mst. Hajyane Bar Bibi v. Abdul Hakeem (PLD 2014 SC 794), Moiz Abbas v. Shahid Hussain (2019 SCMR 74), Sardar Ali v. Khan (2005 SCMR 1583), Nazim-ud-Din vs. Sheikh Zia-ul-Qamar (2016 SCMR 24), and Noor Muhammad v. Mst. Azmat-e-Bibi (2012 SCMR 1373).

5.Conversely, learned counsel appearing for respondent No.2 supported the concurrent judgments of both the Courts below. He argued that the power of attorney was a registered document and, therefore, enjoyed a presumption of genuineness. According to him, Javed Akhtar, admittedly, being the real brother of the petitioner, the execution of the instrument did not require further proof. It was further submitted that respondent No.2 had paid the agreed consideration to Javed Akhtar, who was acting as the duly constituted attorney of the petitioner, and, therefore, payment to the attorney amounted to payment to the principal. Learned counsel also attempted to impeach the credibility of the petitioner by contending that during her cross- examination she displayed ignorance regarding certain contents of her own plaint, thereby rendering her testimony unreliable. According to the respondents, both the Courts below correctly appreciated the evidence and rightly concluded that respondent No.2 had lawfully acquired title through Mutation No.2560.

6.I have heard the learned counsel for the parties at considerable length, perused the record, examined the evidence produced before the Courts below, and given anxious consideration to the submissions advanced.

7.From the pleadings, evidence and rival submissions, the following questions emerge for determination:

 Whether the alleged power of attorney dated 26.01.1996 was proved in accordance with law and whether its execution stood legally established?

 Whether the alleged attorney possessed express authority to alienate the immovable property of the petitioner?  Whether the original power of attorney having not been produced before the Court, secondary evidence could legally be relied upon?

 Whether the respondents established that the petitioner had granted prior consent or special authority for the impugned sale?

 Whether payment of sale consideration amounting to Rs. 800,000/- was proved through reliable and independent evidence?

 Whether Mutation No.2560 could confer lawful title upon respondent No.2 in the absence of proof of authority and proof of consideration?

 Whether the concurrent findings recorded by both the Courts below suffer from misreading, non-reading or erroneous application of settled principles of law warranting interference by this Court in exercise of revisional jurisdiction under Section 115, C.P.C.?

8.The determination of these questions necessarily requires examination of the legal nature of a power of attorney, the extent of authority exercisable by an attorney, the evidentiary value of the alleged instrument, and the legal consequences flowing from failure to prove payment of consideration. These aspects shall now be examined.

9.The entire edifice of respondent No. 2's claim rests upon one foundational document, namely the alleged registered Power of Attorney bearing Registration No.45 dated 26.01.1996 (Ex.PW-3/3), purportedly executed by the petitioner in favour of her brother, Javed Akhtar. It is through this instrument alone that Javed Akhtar is alleged to have acquired authority to alienate the petitioner's immovable property, culminating in the attestation of Mutation No.2560 dated 10.05.2009. It necessarily follows that unless the execution, authenticity and legal efficacy of the said power of attorney are first established in accordance with law, every subsequent transaction founded thereupon, including the impugned mutation, becomes legally unsustainable. The respondents, therefore, carried the initial and continuing burden to prove not merely the existence of the power of attorney but also its due execution, validity and the extent of authority conferred thereunder. This burden never shifted, particularly when the petitioner categorically denied having executed the document or having appeared before the Sub-Registrar for its registration. It is by now a settled principle of law that a power of attorney is not a document creating or transferring title. It merely establishes an agency relationship between the principal and the attorney, authorizing the latter to perform only those acts which are expressly delegated. Since an attorney acts in a representative capacity, the authority claimed must be established through cogent, convincing and legally admissible evidence. The Court cannot presume such authority merely because the document purports to be registered or

because the alleged attorney happens to be a close relative of the principal.

10.Where the execution of the instrument itself is specifically denied by the alleged executant, the document ceases to enjoy unquestioned evidentiary value and must be proved strictly in accordance with the requirements of law. Registration of a document does not dispense with proof of its execution where such execution is specifically disputed. Nor does relationship between the principal and the attorney create any legal presumption that authority to alienate valuable immovable property was in fact conferred. The first and most glaring deficiency in the respondents' case is the non-production of the original power of attorney. The record unmistakably reveals that what was exhibited before the learned trial Court was not the original instrument but only a copy thereof. No satisfactory explanation was furnished regarding the whereabouts of the original document, nor was any foundation laid for the admission of secondary evidence in terms of the provisions of the Qanun-e-Shahadat Order, 1984.

11.It is elementary that where the rights of parties depend upon a written instrument, the best evidence rule requires production of the original document unless its non-production is satisfactorily explained in accordance with law. Secondary evidence is an exception and not the rule. Before a copy of a document can be read into evidence, the party relying thereon must first establish the circumstances bringing the case within one of the legally recognized exceptions permitting secondary evidence. Unless this foundational requirement is fulfilled, the secondary evidence remains legally inadmissible. In the present case, no application seeking permission to lead secondary evidence was filed; no order permitting such evidence was passed; and no evidence was produced to establish that the original power of attorney had been lost, destroyed, withheld by an adverse party or had otherwise become unavailable for reasons recognized by law. Consequently, the learned Courts below committed a manifest legal error in placing implicit reliance upon a copy of the alleged power of attorney without first determining its admissibility.

12.The respondents sought to justify non-production of the original document by asserting that Javed Akhtar, the alleged attorney, had been impleaded as a party but chose not to appear before the Court. This explanation is wholly unpersuasive. The mere absence of Javed Akhtar could neither relieve respondent No.2 of his legal burden nor substitute proof required under the law. If the respondents intended to derive title through an instrument allegedly executed in favour of Javed Akhtar, they were under a legal obligation to produce the best available evidence regarding its execution and contents. Failure of the alleged attorney to enter the witness-box or produce the original instrument inevitably invites an adverse inference under the settled principles governing appreciation of evidence. A party withholding the best available evidence cannot subsequently seek benefit from its own omission. The deficiencies in the respondents' evidence do not end with the non-production of the original instrument. Equally significant is the complete failure to prove its execution. The petitioner categorically denied that she had ever appeared before the Sub- Registrar or executed any power of attorney in favour of her brother. Once such denial was made, it became incumbent upon the respondents to prove due execution through legally recognized evidence. This could have been achieved by producing the original instrument, examining the attesting witnesses, examining the scribe or the registering official, or by leading any other admissible evidence capable of establishing that the petitioner had in fact executed the document voluntarily and consciously. Remarkably, none of these indispensable steps was undertaken. Neither of the marginal witnesses entered the witness-box. The scribe was withheld. The concerned registration official was not examined. Even the alleged attorney, Javed Akhtar himself, abstained from entering the witness-box. Thus, every available source capable of proving execution remained conspicuously absent. The consequence is obvious. The execution of the alleged power of attorney remained wholly unproved.

13.The learned trial Court, however, proceeded on the erroneous assumption that since the document was registered and Javed Akhtar happened to be the petitioner's brother, its execution stood sufficiently

established. The learned appellate Court unfortunately affirmed this approach without independent examination of the governing legal principles. Such reasoning cannot be sustained. Relationship by blood neither dispenses with proof nor enlarges the scope of delegated authority. Equally, registration raises no irrefutable presumption regarding execution where the executant herself denies the document. Registration only establishes that a document has passed through the registration process; it does not conclusively establish that the executant voluntarily executed the instrument or that the authority contained therein is genuine, particularly when allegations of fraud, impersonation or fabrication are specifically raised. The law has always insisted upon strict proof in such cases because alienation of immovable property affects valuable proprietary rights, which cannot be divested on the basis of presumptions or conjectures.

14.There exists another significant circumstance which substantially weakens the respondents' case. The respondents neither pleaded nor proved that after execution of the alleged power of attorney, the petitioner ever ratified the subsequent sale transaction or acknowledged the acts allegedly performed by her brother. On the contrary, immediately upon acquiring knowledge of the mutation, she approached the competent Court seeking declaration of its invalidity and categorically repudiated every act attributed to the alleged attorney. Such prompt challenge is wholly inconsistent with the respondents' plea that the sale had been lawfully executed with the petitioner's knowledge and consent. The law governing powers of attorney has consistently been interpreted with great caution by the august Supreme Court of Pakistan. A power of attorney creates a fiduciary relationship, imposing the highest degree of honesty, loyalty and good faith upon the attorney. It is not an instrument enabling unrestricted disposition of the principal's property. Every act performed thereunder must fall strictly within the authority expressly conferred. Consequently, before recognizing any transfer executed through an attorney, the Court must first satisfy itself regarding:

 the lawful execution of the power of attorney;  the authenticity of the instrument;

 the competency of the principal;

 the extent of authority delegated;

 compliance with statutory requirements governing proof; and  the bona fide exercise of such authority.

Failure to establish any one of these essential ingredients strikes at the very foundation of the transaction. Viewed in the light of the foregoing discussion, this Court has no hesitation in holding that respondent No.2 utterly failed to discharge the burden resting upon him. The original power of attorney was withheld; its non-production remained unexplained; its execution was never proved through competent evidence; no attesting witness or registration official was examined; and the alleged attorney himself abstained from entering the witness-box.

15.The learned Courts below, instead of insisting upon strict proof of the very document through which title was claimed, proceeded upon assumptions unsupported by evidence and thereby committed a serious error of law. The finding that the alleged power of attorney stood proved is, therefore, the product of misreading and non-reading of material evidence and cannot be allowed to stand. The discussion, however, does not conclude the controversy. Even assuming, solely for the sake of argument, that the power of attorney had been duly executed, another equally fundamental question arises: whether the alleged attorney possessed express authority to alienate the petitioner's immovable property and whether the mandatory consent of the principal was ever obtained before the impugned sale. This aspect goes to the very root of the respondents' title and shall now be examined.

16.Assuming, for the sake of argument alone, that the respondents had successfully established the execution of the alleged power of attorney, which, for the reasons already recorded, they have conspicuously failed to do, the controversy still does not end there. The next and more essential question requiring determination is whether the alleged attorney possessed lawful authority to alienate the petitioner's immovable property and whether the impugned transaction

was effected within the limits of such authority. The answer to this question goes to the very root of the respondents' claim because an attorney derives no independent right in the property of the principal. His authority is purely derivative, confined strictly to the powers expressly delegated by the principal, and must be exercised solely for the benefit of the principal. Any act performed beyond the authority conferred, or in disregard of the fiduciary obligations attached to the agency, is legally ineffective and incapable of binding the principal. It is an elementary yet fundamental principle of the law of agency that a power of attorney is to be construed strictissimi juris. The instrument neither enlarges the powers of the attorney by implication nor authorizes acts beyond those expressly entrusted. Where the authority relates to the alienation of valuable immovable property, the Court is required to adopt the strictest standard of judicial scrutiny, for such transactions result in permanent divestment of proprietary rights. A distinction must always be maintained between a general authority to manage property and a special authority to alienate property. The former enables the attorney to perform routine acts of administration, preservation and management, whereas the latter authorizes a complete transfer of ownership. Since the consequences of alienation are irreversible, the authority to sell cannot be inferred from vague or general expressions. It must be explicit, unequivocal and incapable of any doubtful interpretation. The burden of proving such specific authority rests entirely upon the person asserting title through the attorney. The record before this Court is completely barren of any evidence demonstrating that the petitioner ever authorized Javed Akhtar to sell the suit property. More importantly, even the alleged power of attorney, whose copy alone was produced, was never proved so as to enable the Court to examine whether it contained any express clause authorizing alienation of immovable property. The respondents have, therefore, failed at the threshold to establish the very source of the attorney's authority. The learned Courts below unfortunately presumed the existence of such authority merely because the transaction had culminated in a mutation. Such an approach reverses the settled rule of evidence. A mutation does not validate an otherwise

unauthorized transaction; rather, the mutation itself must derive validity from a lawfully executed and duly proved transaction. When the foundation itself remains unproved, every superstructure erected thereupon necessarily collapses.

17.Another equally important legal aspect has escaped the attention of both the Courts below. Even where a power of attorney contains a clause authorizing sale, such authority is not absolute or unbridled. The attorney continues to act as a fiduciary and remains under a continuing obligation to safeguard the proprietary and financial interests of the principal. He cannot treat the property entrusted to him as his own, nor can he exercise the delegated authority for the benefit of third parties or even for his own convenience. Every act of the attorney must satisfy the twin tests of good faith and strict conformity with the authority conferred. Where the principal disputes the very execution of the power of attorney, denies receipt of consideration, challenges the transaction immediately upon gaining knowledge thereof, and alleges fraud or misuse of authority, the Court must subject the transaction to the closest scrutiny. The higher the possibility of abuse, the greater the degree of proof required. This principle is deeply rooted in equitable jurisprudence and has consistently been affirmed by the superior Courts of this country.

18.The record reveals that the petitioner has consistently maintained, from the very inception of the litigation, that she neither executed the alleged power of attorney nor authorized her brother to dispose of her property. She has further asserted that she never received any sale consideration and never consented to the impugned transfer. Despite these categorical assertions, the respondents did not produce a single piece of evidence demonstrating that before executing the alleged sale, the attorney had obtained the petitioner's express approval or acted under any specific instructions issued by her. The complete silence of the record on this crucial aspect is fatal to the respondents' case. It is difficult to conceive that a prudent owner would voluntarily divest herself of valuable immovable property without any evidence of instructions, acknowledgment, receipt of consideration or subsequent ratification. Such omissions assume greater significance

where the alleged attorney is a close relative and the principal herself alleges abuse of confidence. The august Supreme Court has repeatedly emphasized that powers of attorney involving alienation of immovable property cannot be interpreted liberally.

19.In Fida Muhammad v. Pir Muhammad Khan (PLD 1985 SC 341), the Supreme Court authoritatively held that an attorney must act strictly within the authority delegated by the principal and that where the transaction benefits persons closely connected with the attorney or otherwise appears suspicious, the Courts must insist upon clear and satisfactory proof that the alienation was expressly authorized by the principal. Likewise, in Muhammad Yasin and another v. Dost Muhammad (PLD 2002 SC 71), it was reiterated that authority to transfer immovable property cannot be presumed merely from the existence of a power of attorney. The instrument must clearly authorize such alienation, and the attorney is under a continuing obligation to demonstrate fidelity to the interests of the principal. These decisions lay down an enduring principle that the fiduciary character of the attorney's office demands the highest degree of honesty, transparency and accountability. The principle received further elaboration in Jamil Akhtar and others v. Las Baba and others (PLD 2003 SC 494), wherein the august Supreme Court observed that powers of attorney are frequently susceptible to misuse, particularly where elderly, illiterate or absent principals are involved. The Court emphasized that transactions executed by attorneys should never be accepted mechanically but must be examined with great caution to ascertain whether the attorney acted strictly within the authority conferred and solely for the benefit of the principal. Similarly, in Maqsood Ahmad and others v. Salman Ali (PLD 2003 SC 31), the Supreme Court held that a power of attorney creates a fiduciary relationship imposing duties of utmost good faith upon the attorney. Any transaction tainted by want of authority, conflict of interest, abuse of confidence or departure from the terms of the agency cannot be sustained in law merely because it has been reduced into writing or reflected in the revenue record. The legal position has recently been reaffirmed by the august Supreme Court in Pervaiz Akhtar v. Mst. Farida Bibi and

others (PLD 2023 SC 628), wherein it was emphatically held that powers of attorney authorizing transfer of immovable property must receive strict construction and that the Courts must remain vigilant against fraudulent or unauthorized alienations effected under the cloak of agency.

20.The Hon’ble Supreme Court in Pervaiz Akhtar’s case observed that an attorney occupies a position of trust and confidence and is expected to exhibit complete loyalty towards the principal. Where the transaction itself appears doubtful, the burden becomes heavier upon the person relying upon the attorney's act to establish that every legal requirement governing authority, execution and consideration has been faithfully observed. The ratio decidendi emerging from the aforesaid judgments leaves little room for doubt that mere production of a document described as a power of attorney can never, by itself, validate an alienation of immovable property. The Court must independently satisfy itself that:

 the power of attorney was validly executed;

 its execution has been proved in accordance with law;  it expressly authorized the sale;

 the principal knowingly consented to the transaction;  the attorney acted within the limits of authority;  the transaction was bona fide and for the benefit of the principal; and  the consideration was actually paid and duly accounted for.

Failure of any one of these essential requirements renders the transaction legally vulnerable. Applying these well-settled principles to the facts of the present case, it becomes abundantly clear that the respondents have failed to establish any lawful authority empowering Javed Akhtar to alienate the petitioner's property. The original power of attorney remained withheld; its execution was never proved; its contents were never legally established; no evidence was produced to show that it specifically authorized the sale; no proof exists that the petitioner granted prior consent or issued any instructions for the impugned transaction; and there is absolutely no evidence demonstrating that the attorney accounted to the petitioner for the alleged consideration. The entire transaction, therefore, stands unsupported by the very legal foundation upon which respondent No.2

seeks to build his title. Viewed from another perspective, even if the respondents' case were accepted at its highest, the conduct attributed to the alleged attorney falls far short of the fiduciary standards prescribed by law. A fiduciary cannot alienate the principal's property, receive the consideration, abstain from accounting for the same, withhold the original instrument conferring authority, avoid entering the witness-box, and yet expect the Court to presume the legality of his actions. Equity does not countenance such conduct. The law imposes a heavier burden upon fiduciaries precisely because they occupy a position of trust. Courts of law are, therefore, under a corresponding duty to protect the proprietary rights of principals against unauthorized or suspicious alienations. Accordingly, I have no hesitation in holding that the respondents have utterly failed to establish that the alleged attorney possessed lawful authority to transfer the petitioner's immovable property or that the impugned mutation represented a transaction validly executed in exercise of such authority.

21.Assuming, solely for the sake of argument, that the respondents had succeeded in establishing the due execution of the alleged power of attorney and the existence of express authority to alienate the suit property—which, as discussed in the preceding parts of this judgment, they have conspicuously failed to establish—the validity of the impugned transaction would nevertheless remain dependent upon proof of another indispensable ingredient, namely, payment of the sale consideration. Under the settled principles governing transfers of immovable property, execution of an instrument and proof of authority alone do not complete a valid sale. A transfer founded upon valuable consideration necessarily requires satisfactory proof that the agreed consideration was in fact paid to, or lawfully received on behalf of, the vendor. In the absence of such proof, the very substratum of the transaction stands seriously undermined. The respondents assert that respondent No.2 purchased the suit property for a consideration of Rs. 800,000/-, as reflected in Mutation No.2560 dated 10.05.2009. However, a careful examination of the record reveals that this assertion rests solely upon the recital contained in the mutation. Beyond that recital, there is a complete absence of reliable evidence establishing the

actual payment of the alleged consideration. No receipt executed by the petitioner has been produced. No acknowledgment signed by her has been brought on record. No account books, bank transaction, documentary trail or contemporaneous record evidencing payment has been exhibited. No independent witness has been examined to prove that the amount was paid in the presence of respectable witnesses. Even the alleged attorney, Javed Akhtar, who alone could have deposed that he received the amount on behalf of the petitioner and subsequently accounted for it to his principal, deliberately abstained from entering the witness-box. The evidentiary vacuum on this vital aspect is complete.

22.The respondents attempted to contend that payment to the alleged attorney constituted payment to the principal. This argument, however, presupposes the existence of two foundational facts which the respondents have themselves failed to prove: firstly, that Javed Akhtar was lawfully authorized to receive the consideration on behalf of the petitioner; and secondly, that he in fact received the amount and accounted for it to the petitioner. Neither proposition finds support from any legally admissible evidence. Even assuming that an attorney is authorized to receive sale consideration, the law does not dispense with proof of actual payment. A bare assertion by the vendee, unsupported by independent evidence, cannot displace the categorical denial of the principal. The fiduciary character of the attorney's office requires complete transparency in financial dealings. Where the principal specifically pleads that no amount was ever received by her, the burden squarely shifts upon the purchaser to establish, through clear and convincing evidence, not only payment to the attorney but also the attorney's authority to receive the same and his subsequent accounting to the principal. No such evidence has been adduced in the present case.

23.It is equally significant that Column No.13 of Mutation No.2560 merely records that the sale consideration amounted to Rs. 800,000/-. Such recital, by itself, is neither conclusive nor substantive proof of payment. A mutation is primarily a fiscal document maintained for revenue purposes. It neither creates title nor validates a transaction

which is otherwise legally defective. Its entries are relevant only to the extent that they reflect a transaction allegedly taken place; they cannot dispense with proof of the transaction itself when the same is specifically disputed. The superior Courts have consistently held that mutation proceedings are summary in nature and are not intended to determine disputed questions of title. Consequently, where the validity of the underlying transaction is challenged, the mutation loses all independent efficacy and must necessarily stand or fall with the legality of the transaction upon which it is founded. In the instant case, the mutation derives its entire existence from the disputed power of attorney. Once the authority of the attorney remains unproved and payment of consideration is not established, the mutation becomes incapable of conferring any right, title or interest upon respondent No.2. The law regarding proof of sale consideration is no longer res integra.

24.In Mst. Hajyane Bar Bibi v. Abdul Hakeem (PLD 2014 SC 794), the august Supreme Court unequivocally held that where execution of a sale transaction is disputed, mere production of the sale deed or mutation is insufficient to establish its validity. The vendee must affirmatively prove that the agreed consideration actually passed from the purchaser to the vendor. The Court emphasized that payment of consideration is not a mere formality but constitutes an essential ingredient of every sale transaction and failure to establish the same renders the transaction highly doubtful. Likewise, in Moiz Abbas v. Shahid Hussain (2019 SCMR 74), the Supreme Court reiterated that a recital regarding payment of consideration contained in a document does not, by itself, constitute conclusive proof of such payment where the vendor disputes having received the amount. The burden remains upon the vendee to establish actual payment through reliable, cogent and confidence-inspiring evidence. Similarly, in Sardar Ali v. Khan (2005 SCMR 1583), it was held that where payment of consideration is specifically denied, the Court must insist upon satisfactory proof thereof and cannot uphold a disputed transaction merely because the mutation records that consideration had been paid. The principles laid down in these judgments are fully attracted to the facts of the present

case. The cumulative effect of the evidence on record leaves no room for ambiguity. The petitioner has consistently denied having received any amount whatsoever from respondent No.2 or from the alleged attorney. This denial remained unwavering throughout the proceedings. The respondents, despite carrying the legal burden of proof, failed to produce any independent evidence capable of discharging that burden. Their entire case rests upon assumptions, presumptions and the recital contained in the mutation, which, in law, cannot substitute proof.

25.Indeed, the conduct of the respondents further weakens their case. The person alleged to have received the consideration on behalf of the petitioner, namely, Javed Akhtar, did not step into the witness- box. No explanation worth the name has been furnished for withholding his testimony. His non-appearance assumes considerable significance because he was the most material witness to prove not only the receipt of consideration but also the authority under which he allegedly acted. His deliberate abstention from the witness-box warrants drawing an adverse inference against the respondents that, had he been examined, his testimony would not have supported their case. The learned trial Court, however, proceeded on the assumption that since the mutation recited payment of Rs. 800,000/- and respondent No.2 asserted that payment had been made to the attorney, the transaction stood proved. The learned appellate Court affirmed this conclusion without independently examining whether the mandatory legal requirements governing proof of consideration had been satisfied. This approach is legally unsustainable. Both Courts below overlooked the distinction between a recital in a document and proof of the fact recited therein. They also failed to appreciate that where execution of the power of attorney itself is denied and receipt of consideration is categorically disputed, the Court cannot relieve the purchaser of the burden imposed by law merely because a mutation contains a statement regarding payment. Such reasoning amounts to substituting presumption for proof, an approach consistently disapproved by the superior Courts.

26.The appreciation of evidence by both the Courts below further suffers from misreading and non-reading of material evidence. While considerable emphasis was placed upon the relationship between the petitioner and Javed Akhtar, virtually no attention was paid to the absence of proof regarding execution of the power of attorney, the withholding of the original document, the failure to examine material witnesses, the absence of evidence establishing express authority to sell, and the complete lack of proof regarding payment of consideration. The Courts below also failed to appreciate that these deficiencies were not minor irregularities capable of being ignored, rather, they constituted fundamental defects striking at the root of the respondents' title. Each of these circumstances independently rendered the transaction legally vulnerable; collectively, they completely destroyed its evidentiary worth. The settled principle governing civil adjudication is that evidence must be appreciated as an integrated whole and not in isolated fragments. The Court is required to examine whether the entire chain of circumstances forms a coherent and legally sustainable narrative. In the present case, the chain is broken at every material link. The authority of the alleged attorney remains unproved; the original instrument has been withheld; the execution of the power of attorney has not been established; no express authority to sell has been demonstrated; the principal's consent has not been proved; and payment of consideration has remained wholly unsubstantiated. In these circumstances, the mutation could not legally confer any title upon respondent No.2, nor could it furnish a lawful basis for decreeing his suit for possession. Consequently, this Court is constrained to hold that the concurrent findings recorded by the learned trial Court and the learned appellate Court are the result of a manifest misreading and non-reading of the evidence as well as a clear misapplication of the settled principles governing proof of agency, transfer of immovable property and payment of consideration. Findings founded upon assumptions rather than legally admissible evidence cannot be permitted to attain finality merely because they are concurrent.

27.Having held that the respondents failed to prove the execution of the alleged power of attorney, the extent of the authority purportedly

conferred thereunder, the petitioner's prior consent for alienation of her immovable property, and the payment of sale consideration, it now remains to examine whether this Court, in exercise of its revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908, is justified in interfering with the concurrent findings recorded by the Courts below. It is well settled that the revisional jurisdiction of the High Court is supervisory in nature and is intended to ensure that subordinate Courts exercise jurisdiction vested in them in accordance with law. Ordinarily, concurrent findings of fact are not disturbed merely because another view of the evidence may also be possible. However, this rule is not absolute. Where such findings are the outcome of a patent misreading or non-reading of material evidence, an erroneous assumption of law, disregard of settled legal principles, or failure to consider evidence having a direct bearing on the controversy, the High Court would not only be competent but duty-bound to correct the resulting miscarriage of justice. The august Supreme Court of Pakistan, in Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others (2016 SCMR 24), authoritatively held that concurrent findings recorded by the Courts below are not immune from interference where they are based upon misreading, non-reading or erroneous appreciation of evidence. The Court observed that findings which ignore material evidence or are founded upon assumptions rather than legally admissible proof lose the sanctity ordinarily attached to concurrent determinations and become amenable to correction in revisional jurisdiction. Likewise, in Noor Muhammad and others v. Mst. Azmat-e-Bibi and others (2012 SCMR 1373), the august Supreme Court reiterated that concurrent findings do not enjoy absolute finality. Where the conclusions drawn by the subordinate Courts are contrary to the evidence available on record or are based upon an incorrect application of law, interference by the High Court becomes fully justified to prevent perpetuation of an illegality. The ratio decidendi emerging from the aforesaid authorities unmistakably establishes that the doctrine respecting concurrent findings cannot be invoked to shield judgments suffering from fundamental legal

infirmities. The present case is a classic illustration of such an exceptional situation.

28.Both the learned Courts below proceeded on the erroneous assumption that the alleged power of attorney stood proved merely because a copy of a registered document was exhibited. In doing so, they overlooked the cardinal requirement that the original instrument was never produced before the Court, no foundation for secondary evidence was laid, no attesting witness or registration official was examined, and the execution of the document was categorically denied by the petitioner. These defects went to the very root of the respondents' title, yet remained wholly unaddressed. Similarly, both the Courts below completely failed to appreciate that even if the existence of the power of attorney were assumed, there was no legally admissible evidence establishing that the alleged attorney possessed express authority to alienate the petitioner's immovable property or that the petitioner had accorded her prior consent to the impugned transaction. The fiduciary obligations resting upon an attorney and the strict construction required in matters involving alienation of immovable property were also overlooked despite repeated pronouncements of the august Supreme Court on the subject.

29.More importantly, the respondents failed to establish payment of the sale consideration. Notwithstanding this glaring omission, the Courts below treated the recital contained in the mutation as sufficient proof of payment, contrary to the settled law that a mutation neither creates title nor dispenses with proof of consideration where the transaction is specifically disputed. The cumulative effect of these omissions unmistakably demonstrates that the findings recorded by both the Courts below are not the result of a proper judicial appreciation of evidence but are founded upon conjectures, presumptions and an erroneous understanding of the governing legal principles. Material evidence was either ignored altogether or appreciated in a manner inconsistent with the settled jurisprudence laid down by the august Supreme Court. Such findings cannot be permitted to attain finality merely because they are concurrent. The revisional jurisdiction vested in this Court is designed precisely to rectify such

jurisdictional and legal errors. To decline interference despite the existence of patent illegality would amount to endorsing a manifest miscarriage of justice and allowing an unauthorized alienation of immovable property to receive judicial approval without proof of authority or consideration. Such a course would not only undermine the sanctity of proprietary rights but would also erode the fiduciary obligations governing the law of agency. The law has always regarded proprietary rights as valuable civil rights deserving the highest degree of judicial protection. Where an owner specifically denies execution of a power of attorney, repudiates the authority of the alleged attorney, disputes receipt of sale consideration, and promptly challenges the mutation, the Courts are under a corresponding obligation to insist upon strict proof of every foundational fact. Any relaxation of this standard would expose innocent owners to fraudulent alienations carried out under the guise of agency and would defeat the very object of the law requiring written authority and proof thereof. The judicial conscience of the Court cannot be satisfied by upholding a transaction in which:

 the original power of attorney has been withheld;  its execution remains unproved;

 the attorney's authority to alienate the property has not been established;  the principal's prior consent has not been demonstrated;  the sale consideration has not been proved to have been paid; and  the person alleged to have acted as attorney abstained from entering the witness-box to explain the transaction.

Each of these deficiencies independently creates serious doubt regarding the validity of the transaction; collectively, they render the impugned mutation wholly incapable of conferring any lawful title upon respondent No.2.

30.For the reasons discussed hereinabove, this Court has reached the inescapable conclusion that respondent No.2 utterly failed to establish the lawful foundation of his claim. The alleged power of attorney remained unproved; its contents and legal efficacy were never established; the respondents failed to prove that the petitioner had authorized or consented to the alienation of her property; no reliable evidence was produced regarding payment of sale consideration; and

Mutation No.2560, being founded upon an unproved and legally unenforceable transaction, conferred no right, title or interest upon respondent No.2. The judgments and decrees passed by the learned trial Court as well as the learned appellate Court are, therefore, the result of misreading and non-reading of material evidence coupled with a patent misapplication of settled principles of law. Consequently, they cannot be sustained. For the foregoing reasons, this Civil Revision is allowed. The judgment and decree dated 17.06.2014 passed by the learned Civil Judge, Peshawar in Civil Suit No.17/1 and Civil Suit No.47/1, as well as the appellate judgment and decree passed by the learned Additional District Judge-XII, Peshawar, are set aside. Consequently, Civil Suit No.17/1 instituted by respondent No.2 for recovery of possession and permanent injunction is dismissed, while, Civil Suit No.47/1 instituted by the petitioner, Mst. Nighat Sultana alias Kherogai, is decreed.

a. It is declared that the alleged Power of Attorney bearing Registration No.45 dated 26.01.1996, having not been proved in accordance with law, could not confer any lawful authority upon Javed Akhtar to alienate the petitioner's property.

b. Consequently, Mutation No.2560 dated 10.05.2009, together with all subsequent entries, if any, derived therefrom, is declared to be illegal, void, without lawful authority, ineffective and inoperative against the proprietary rights of the petitioner, and the revenue authorities shall treat the same accordingly.

c. The petitioner shall continue to be the lawful owner of the suit property, subject to any lawful rights, if any, established independently in appropriate proceedings.

d. In the circumstances of the case, there shall be no order as to costs.

Announced on 30.06.2026.

Released on 20.07.2026.

Asif Jan Sr.S.S.

JUDGE