Declaration with permanent injunction or cancellation of documents .
The case revolves around a dispute over ownership of a plot of land. The plaintiff filed a suit seeking declaration that he is the rightful owner of the plot described in the plaint. He claimed that he never appointed anyone as his attorney and did not transfer the property to the defendants. However, the defendants argued that the plaintiff's attorney had transferred the plot to one of the defendants, who then sold it to another defendant, the petitioner.
The trial court initially dismissed the suit, but the plaintiff appealed. The appellate court accepted the appeal and decreed the suit in favor of the plaintiff. However, the petitioner contested the decision in a revisional court, arguing that the judgment was wrongly based on a precedent that didn't apply to the case.
The court ultimately ruled in favor of the petitioner, stating that the plaintiff failed to provide sufficient evidence to challenge the validity of the documents transferring ownership. It was noted that the plaintiff himself produced a copy of the registered power of attorney, indicating that he had knowledge of its existence. Therefore, the court upheld the dismissal of the suit, suggesting that if the plaintiff wanted to challenge the document, he should have done so through a suit for cancellation under the Specific Relief Act.
s
Respondents
Tariq Daud and others
For the petitioner:
Hussain
For the respondents:
09 May 2024
Date of Hearing:
ORDER
Amin-ud-Din Khan. J. Through this petition filed under Article
issued to the other side by this Court. We have
2.
heard the
through the record with their able assistance.
3.
A notice was
learned counsel for available contesting parties and gone
A suit was filed by respondent No. 1/plaintiff for declaration that
the head-note of
the plaint. As per pleadings in
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
he be declared owner of the suit plot fully described in
the plaint, plaintiff never appointed
185(3) of the Constitution of Islamic Republic of Pakistan, 1973 leave
has been sought against the judgment dated 25.09.2023 whereby Civil
Revision No. 1153-P of 2019 filed by the petitioner was dismissed.
Civil Petition No.3877 of2023
civil revision.
the suit was filed.
defendants as his attorney nor he transferred the suit property in their
favour through any document. The alleged transfer of property in favour
of defendants is wrong, without authority, forged, fictitious and due to
conspiracy of the defendants. Initially the suit was filed against
defendant Nos. 1 85 2. After filing of written statement by the defendants
of the suit, defendant No. 3 was also impleaded stating that through the
documents attached with the written statement plaintiff came to know
that property was transferred in favour of defendant No. 3, who
transferred in favour of other defendants. The suit was contested. The
learned trial court framed the issues and invited the parties to produce
their respective evidence. Both the parties produced their oral as well as
documentary evidence. Learned trial court was pleased to dismiss the
suit vide judgment and decree dated 12.11.2013. The appeal was
preferred by the plaintiff/respondent No.l against the judgment and
decree of dismissal of his suit. The learned first appellate court was
pleased to accept the appeal vide judgment and decree dated 9.10.2019
and decreed the suit. The learned High Court also agreed with the
findings recorded by the learned first appellate court and dismissed the
4. Learned counsel for the petitioner argues that the learned
revisional court has wrongly relied upon the judgment of this Court
which is absolutely not applicable to the facts of the case in hand and
therefore, the learned revisional court reached to a wrong conclusion.
States that initially defendant No.3 was not impleaded, in whose favour
attorney of the plaintiff transferred the plot, from whom
petitioner/defendant No.l purchased the said plot. After the said
purchase, a house was constructed and during that period no objection
was raised by the plaintiff and after completion of his house dishonestly
Civil Petition No.3877 of2023
5.
6.
power of
Learned counsel for respondent No. 1 supported the judgment
passed by the appellate court as well as revisional court whereas
learned counsel for respondent Nos. 2 to 5 has supported the
arguments advanced by the learned counsel for the petitioner and
supported the judgment passed by the trial court.
Despite the fact that as per pleadings of the plaintiff himself after
eyAmining the documents in the office of City Development and
Municipal Department, he came to know about the power of attorney
and the transfer documents. He did not implead defendant No. 3 as the
series of the facts suggest that defendant No. 2 was attorney of the
plaintiff-respondent and he transferred the suit plot in favour of
defendant No. 3 through registered Sale Deed and thereafter, defendant
No. 1 purchased the said plot from defendant No. 3. Plaintiff has not
specifically challenged any of the above said documents. He has
generally denied the appointment of the attorney and further execution
of sale deeds by his attorney. For challenging a document we are clear
in our mind that there must be specific pleadings. In the instant case as
the plaintiff has stated that he never appointed anyone as his attorney,
meaning thereby that he is denying whole of the document i.e.
attorney on his behalf in favour of defendant No. 2 which includes that
he never signed or thumb marked the document, he never appeared
before the Registrar for registration of the said document. In that
eventuality his case is that no such registered document exists on his
behalf in the registration book kept under the Registration Act whereas
we have noticed that as PW-1 a Record Keeper from Sub-Registrar office
i.e. Registry Moharrir was produced by the plaintiff-respondent himself
who brought the record of registration of document No. 1984 dated
28.4.2007 a power of attorney by plaintiff in favour of defendant No.2
and a true and correct copy of said document got exhibited as
Civil Petition No.3877 of2023
produced before the Court.
7.
were
Exh.PWl/1. This witness was cross-examined by the learned counsel
for defendant No.l to 3 and in the cross-examination he has stated that
it contains the signatures of executor of document as well as witnesses
which are correct and further stated that one of the witnesses is Rizwan
Dawood whose father’s name is Dawood Khan. Further stated that
nothing of the sort that power of attorney was subsequently cancelled
moved for cancellation of the same had been
by the plaintiff upon crossno request was made by the learned counsel for the plaintiff to permit
him to cross-examine the witness, refers Article 134 of the Qanun-eShahadat Order, 1984 that the person who produced the record cannot
be cross-examined. We are afraid that in the instant case the plaintiff
to produce the record as well as got
or any application was
When questioned to the learned counsel for plaintiff/respondent
No.l that when the said witness was produced by the plaintiff himself
of the said document as
has produced this witness as
exhibited in his statement copy of the said power of attorney as
Exh.PW-1/1 and further not raised any objection that learned counsel
for respondent Nos.l to 3 cross-examined the said witness. It is
admitted that the document, power of attorney which was challenged
through the suit, the record of registration was got summoned by the
plaintiff himself and the copy thereof was got exhibited as Exh.PW-1/1
and he got exhibited the Photostat copy
Exh.PW-1/1 being a registered document when original record was also
before the Court, the presumptions attached to the said document
fully attached to the said document and further that when the plaintiff
himself got exhibited the copy of the registered power of attorney as
Exh.PW-1/1 and further that when the learned counsel for defendant
Nos.l to 3 cross-examined the said witness and no objection was raised
exa
5
Civil Petition No.3877 of2023
by the plaintiff himself. In these circumstances, one of the witnesses
who is real brother of the plaintiff, non-production of the said witness is
not defective in the light of Article 79 of the Qanun-e-Shahadat Order,
1984.
In the instant case we are clear in our mind that plaintiff-
8.
that he did not appoint defendant No. 2
failed
sale deed in favour of defendant No. 1/the petitioner arises. Plaintiff
failed to plead and produce evidence that why he has not raised any
respondent who has not specifically challenged the execution and
registration of power of attorney in his pleadings when his case is that
he has seen said document in the office of City Development and
Exh.PWl/1 rather he himself proved the existence of registered power
of attorney by him in favour of defendant No. 2, no question of any
illegality in the transfer of the suit plot by his attorney in favour of
defendant No.3 and then transfer of suit plot through another registered
petitioner before this Court. When plaintiff-respondent failed to prove
as his general attorney and
Municipal Department, further he himself produced the copy of said
document as Exh.PW-1/1 and failed to discharge initial onus of
to rebut the presumptions attached with the document
negation of the registration of the document, it was very easy and
simple for the plaintiff to get his signatures and thumb impression
upon the impugned document compared with his sample signatures
and thumb impressions but he has not opted to initiate this legal
process. In these circumstances, when plaintiff failed to discharge
initial onus, no question of shifting of onus upon the vendee/defendant
or Attorney who has fully supported that he being validly constituted
attorney of the plaintiff, sold the plot to defendant No. 3 who was
initially not made party to the suit and was subsequently made party
and further defendant No. 3 sold the plot to defendant No. 1 the
Civil Petition No.3877 of2023
by
the
of
house
construction
regard
with
objection
to
petitioner/defendant No.l upon the suit plot.
We are further of the view that when registered power of attorney
9.
1877 and not a suit for declaration filed under section 42 of the Act.
10.
court dismissing the suit will hold the field.
In these circumstances, the findings recorded by the learned trial
accordance with the record.
by plaintiff in favour of defendant No. 2 proved, plaintiff
having the right to challenge the suit document through filing a suit for
cancellation of document under section 39 of the Specific Relief Act,
Islamabad
09 May 2024.
Mazhar Javed Bhatti
APPROVED FOR REPORTING.
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