Barmala Khan Vs Usman Ghani

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, D.I.KHAN BENCH

(Judicial Department)

CR No. 127 of 2015

JUDGMENT

Date of hearing 08.02.2016

Appellant-petitioner Barmala Khan by Mr. Muhammad Ismail Warrarkhel Advocate

Respondent Usman Ghani Ayaz etc by Mr. Zia ur Rehman Qazi Advocate

MUHAMMAD GHAZANFAR KHAN, J.- Through the instant revision petition, the petitioner has called in question the judgment and decree dated 07.5.2015 rendered by learned Additional District Judge-I, D.I.Khan vide which the appeal filed by respondents No.2 to 4 was accepted, the judgment and decree dated 30.11.2011 of learned Civil Judge-IV, D.I.Khan was set aside and resultantly, the suit of petitioner was dismissed.

2.The brief fact giving rise to the instant revision petition are that the petitioner filed a suit against respondents No.2 to 4 for declaration and mandatory injunction to the effect that he is the sole owner in possession of land, fully detailed in the heading of plaint, on the strength of mutation No.2441 dated 17.02.2001 and respondent No.1 was not appointed as general

attorney on his behalf in respect of the disputed property, therefore, registered deed No.1556 dated 25.10.2000 is not the general power of attorney on behalf of petitioner in favour of respondent No.1 and respondent No.1 by posing himself as the general attorney, transferred land mutations No.2506 dated 17.02.2001 No.2519 dated 16.4.2001 which are wrong, against law and facts and based on fraud and thus ineffective upon his rights and liable to cancellation.

3.The suit was contested by respondents No.2 to 4 by submitting their written statement. The learned trial Court framed the required issues from the pleadings of the parties. The parties produced their respective evidence as they wished to adduce. After hearing the arguments of learned counsel for the parties, the learned Civil Judge- IV, D.I.Khan decreed the suit of petitioner vide judgment and decree dated 30.11.2011.

4.Dissatisfied with the judgment and decree dated 30.11.2011, respondents No.2 to 4 filed an appeal.

The learned Additional District Judge-I, D.I.Khan accepted the appeal, set aside the judgment and decree dated 30.11.2011 and dismissed the suit of petitioner vide judgment and decree dated 07.5.2015, hence the instant revision petition by petitioner.

5.I have heard the arguments of learned counsel for the parties and have gone through the record with their valuable assistance.

6.The controversy between the parties is that whether the power of attorney in favour of respondent No.1 Usman Ghani Ayaz by petitioner Barmala Khan has validly been executed and any transaction on the basis of that power of attorney including mutations No.2506 and 2519 was struck? The execution of power of attorney was specifically denied by petitioner in his plaint, however, at the time of recording evidence, the said petitioner/ plaintiff never appeared before the Court as his own witness, rather he appeared through his attorney, who is his real son. It is admitted fact that at the time of execution of impugned power of attorney, the son of petitioner namely Ashiqullah was minor. He is neither witness to power of attorney nor any transaction has ever taken place in his presence. So, apparently, there is no evidence on the record to corroborate the version of petitioner advanced in the plaint. Secondly, the power of attorney on the basis of which the said attorney appeared on behalf of petitioner is placed on file as Ex.P.W.4/1.

The perusal of this document shows that it was specifically meant for proceedings to set aside ex-parte

decree and not to defend the main suit, meaning thereby that there is nothing on record to show that the petitioner has produced any evidence regarding authenticity of his claim. In case of Feroz Khan and others. Vs. Mst.

Waziran Bibi (1987 SCMR 1647, it was held that:- “In the circumstances the High Court was justified in drawing an adverse inference against Adalat Khan and Feroz Khan for not appearing in the witness box in support of their assertions of fraud and non-payment of consideration and thus offer themselves for cross-examination to the opposite party.”

Similarly, in case of Mst. Farhat Begum and others. Vs.

Said Ahmad Shah and others (2002 CLC Peshawar 1956), it was held that:-

“Since the transaction of sale was oral between Nawabzada Col. Muhammad Khalid Khan and Syed Ahmad Shah, therefore, it was incumbent upon Nawabzada Col. Muhammad Khalid Khan to have appeared in person and denied not only that he did not transact any sale in favour of Said Ahmad Shah but should have also denied the receipt of sale consideration and factum of handing over possession to him.”

However, in this case, though opportunity was given to petitioner/plaintiff to prove his case, but he did not appear himself before the Court, rather defended his right through attorney who was not authorized to defend the main suit. In such a scenario, the case cannot be decided

in vacuum and it would be just and proper to remand the case.

7.For the reasons mentioned above, the instant revision petition is accepted, the impugned judgments and decrees of the Courts below are set aside and the case is remanded to learned trial Court with the directions to decide the same afresh after affording fair opportunity to petitioner/plaintiff to prove his case as alleged in the plaint. It will not be out of place to mention here that respondents No.2 to 4 shall also have the right to rebut the evidence so produced by petitioner/plaintiff.

Announced.

Dt:08.02.2016.

Habib/* JUDGE