Sale through unregistered power of attorney | Can you sell property with Power of Attorney in Pakistan? What is the latest Supreme Court Judgement for Power of Attorney? What are the rules of Power of Attorney in Pakistan? Is Power of Attorney valid after death in Pakistan

**کیس کی کہانی:**

فاضل-الرحمن نے 1955 میں پلاٹ کے لیے درخواست دی، جسے 1960 میں الاٹ کیا گیا۔ 1966 میں انہوں نے پلاٹ پر عمارت بنانے کی اجازت حاصل کی، لیکن مالی مشکلات کی وجہ سے عمارت نہیں بنائی۔ 1982 میں انہیں معلوم ہوا کہ پلاٹ کو کسی اور کے نام منتقل کر دیا گیا ہے، اور انہوں نے 1983 میں اس منتقلی کے خلاف مقدمہ دائر کیا۔

پلاٹ کی منتقلی کے وقت، محمد شفی کو ایک غیر رجسٹرڈ مختار نامہ کے تحت پلاٹ منتقل کیا گیا۔ فاضل-الرحمن نے اس وکالت نامہ کی قانونی حیثیت کو چیلنج کیا۔

عدالتوں نے مختار نامہ کو ناقص قرار دیتے ہوئے، فاضل-الرحمن کی ملکیت کی تصدیق کی اور مقدمہ ان کے حق میں فیصلہ کیا۔ بعد میں، سپریم کورٹ نے پیٹیشنرز کی درخواست کو مسترد کر دیا اور فاضل-الرحمن کے قانونی وارثوں کو جائیداد واپس کرنے کا حکم دیا، جبکہ پیٹیشنرز کو جائیداد خالی کرنے کے لیے 90 دن دیے۔

جی ہاں، سپریم کورٹ نے فیصلہ دیا کہ فاضل-الرحمن کے قانونی وارثوں کو جائیداد واپس مل جائے۔ عدالت نے پیٹیشنرز کی درخواست کو مسترد کرتے ہوئے، اور مقدمے میں پیٹیشنرز کی طرف سے پیش کردہ مختار نامہ کی قانونی حیثیت کو مسترد کرتے ہوئے، اصل مالک کے قانونی وارثوں کو پلاٹ پر قانونی ملکیت کا حق تسلیم کیا۔

عدالت نے پیٹیشنرز کو جائیداد خالی کرنے کا حکم دیا اور 90 دن کی مدت دی تاکہ وہ جائیداد کو قانونی وارثوں کے حوالے کر سکیں۔ اس طرح، قانونی وارثوں کو ان کی جائز ملکیت واپس مل گئی۔

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction

Present:

Mr. Justice Syed Hasan Azhar Rizvi

Mr. Justice Aqeel Ahmed Abbasi

Civil Petition No. 520-K of 2024

(Against the judgment dated 02.05.2024 of

the High Court of Sindh at Karac

Syed Pervaiz Hussain and another

... Petitioners

Versus

Zikr-ur-Rehman and others

... Respondents

For the Petitioner:

For the Respondent:

N.R.

Date of Hearing:

15.07.2024.

ORDER

AQEEL AHMED

ABBASI,

J.-

Petition for leave to appeal has been filed against the impugned

judgment dated 02.05.2024 and decree dated 10.05.2024 passed

by the learned Single Judge of the High Court of Sindh in Ilnd

Appeal No. 179 of 2021 whereby the learned Single Judge has

been pleased to dismiss the said appeal filed against the

judgment dated 15.03.2021 and decree dated 19.03.2021 passed

by the trial Court in Suit No.673 of 1996 (old Suit No.322 of

1983) (Re: Fazalur Rehman versus Karachi Development Authority

and others) and the order in Civil Appeal No. 104 of 2021 passed

by the learned District Judge Karachi-Central vide judgment

dated 02.08.2021 and Decree dated 09.08.2021 has been duly

affirmed.

Civil Petition No. 520-K of2024

predecessor-in-interest of respondents No.l to 10, namely, Fazalur-Rehman had instituted a Suit bearing No.322 of 1983 before

the High Court in respect of subject property, which later on was

transferred to learned trial Court on account of change in

renumbered as Suit No.673 of 1996 (subject suit). In the suit it

to 10 that he had filed an application dated 02.10.1955 for

allotment of occupancy right in respect of subject plot, which,

after payment of all dues, and completion of other codal

formalities, was allotted in his favour vide allotment order dated

28.06.1960 and thereafter, formal registered lease alongwith site

plan was also issued in his favour at Sr. No.2286, pages 123 to

126 volume 309 of Book No.l additional by the office of SubRegistrar Camp Liaquatabad Karachi on 26.06.1966 whereafter

building plan for construction of house was also approved by the

concerned authority vide letter dated 28.04.1967. However, due

to shortage of funds he could not construct the house thereon;

whereas, on 02.11.1982 he came to know from KDA office that

subject plot had been sold to someone on the basis of alleged

power of attorney, consequently, he moved an application to KDA

wherefrom, he was informed that it is a civil matter and could

only be adjudicated by a Civil Court. Finally, as stated above, he

transferred to trial Court on account of change in pecuniary

jurisdiction, where the said suit was decreed on merit vide

Civil Petition No. 520-Kof2024

judgment dated 02.08.2021 and decree dated 09.08.2021. Civil

Appeal No. 104 of 2021 was filed thereagainst by the appellants

dismissed vide judgment dated 02.08.2021. Petitioners assailed

the judgment in appeal by filing IInd Appeal No.179 of 2021

before learned Single Judge of the High Court, however, through

impugned judgment dated 02.05.2024, both the orders of two

Courts have been upheld and the IInd Appeal has also been

dismissed and, hence instant CPLA has been filed to set aside

the impugned judgment as well as the judgment and decree

passed in the suit and 1st appeal.

Learned counsel for the petitioners was confronted to

point out any factual error or legal infirmity in the concurrent

findings of facts and law of the two Courts below and the learned

Single Judge of the High Court, which could justify filing of

instant civil petition for leave to appeal. In response to such

query learned counsel for the petitioners has mainly argued that

the Courts below have erred in law and fact while discarding the

documentary evidence produced by the petitioners in support of

which was duly Notarized, therefore, there was legal presumption

as to the execution of such power-of-attorney in terms of Article

95 of the Qanun-e-Shahadat Order, 1984, according to which

authenticated, by, a Notary Public, or any Court, Judge, Magistrate,

Pakistani Consul or Vice-Consul, or representative of the Federal

before the learned District Judge, Central, Karachi which was

“the Court shall presume that every document purporting to be a

their claim, particularly, the execution of power-of-attorney

Civil Petition No. 520-K of2024

according to the learned counsel, this aspect of the matter has

been ignored by all the three Courts. Whereas, reliance has been

placed on the minority decision in the case of Dr. Muhammad

Javed Shafi v. Syed Rashid Arshad and others (PLD 2015 SC

212), regarding onus of proof of execution of power-of-attorney,

authenticated by Notary Public. Per learned counsel, reliance has

also been placed on alleged report of handwriting expert of police

department dated 06.04.2006 according to which the specimen

signatures of the plaintiff in the suit, namely, Fazal-ur-Rehman

10.07.1992. It has been further argued by the learned counsel

petitioners that the predecessor-in-interest of the

for the

petitioners being bona fide

purchaser had acquired right and title

in the subject property on the basis of registered conveyance

deed. According to learned counsel, the burden of proof of nonexecution of power-of-attorney would be on the person who

asserts the same as forged which burden could not be discharged

by the respondents, therefore, all the Courts below have erred in

law and fact while decreeing the suit of predecessor-in-interest of

Respondents No.l

conveyance deed dated 15.01.1980 in favour of Abida Begum

(deceased defendant No.4 and the mother of petitioners) in

respect of subject plot i.e. A-321 (measuring 200 sq. yards),

support of his contentions, learned counsel for the petitioner has

were obtained in the year 2006 who, as

Block-N, North Nazimabad, KDA, Scheme No.2, Karachi. In

Government, was so executed and authenticated”. However,

also placed reliance on the cases of Allah Bakhsh and others v.

Civil Petition No. 520-K of2024

Bakhsha and others (2003 SCMR 1011) and Syed Khursheed AH

Jaffery v. Jamiluddin Siddiqui (1993 CLC 2511).

We have heard the learned counsel for the petitioners,

perused the record and the case law relied upon by the learned

counsel in support of his contention.

The impugned judgment of the High Court as well as

the order of the 1st Appellate Court and the judgment and decree

of the trial Court reflect that the learned trial Court and the

Appellate Court, after detailed scrutiny and examination of the

requisite issues, have reached to the conclusion that pursuant to

02.10.1955 for allotment of occupancy

right in a plot of land in KDA Scheme No.2, North Nazimabad,

Karachi which was registered at serial No.4997, receipt No.5802

on 08.10.1995, a residential plot No.A-321 (measuring 200 sq.

yards) in Town Expansion Scheme No.2 in North Nazimabad was

respondents No.l to 10 namely, Fazalur Rehman. However, the

dispute arose when the subject property was got transferred in

favour of the predecessor-in-interest of the petitioners, namely,

Abida Begum on the basis of general power-of-attorney dated

19.02.1977 in favour of Respondent No. 12-Muhammad Shafi,

who according to learned counsel for the petitioners, on the basis

of said irrecoverable general power-of-attorney, executed subnamely, Agha Ahmed from whom Mst. Abida Begum, defendant

the application filed on

No.4, had purchased the subject plot on payment of sale

evidence, produced by the parties, and while framing the

general power-of-attorney in favour of Respondent No. 13,

allotted by ballot in favour of predecessor-in-interest

Civil Petition No. 520-K of2024

consideration and such conveyance deed was registered in her

favour on 15.01.1980. Whereas the predecessor-in-interest of

respondents No. 1 to 10/plaintiff in the suit had challenged the

said conveyance deed on the ground that he had not executed

any general power-of-attorney in favour of Muhammad Shafi

(respondent No. 12) as such any sub-general power of attorney

has no value in the eyes of law.

It is pertinent to note that admittedly, the basic

general power-of-attorney dated

19.02.1977

allegedly executed by predecessor-in-interest of respondents No.l

to 10, namely, Fazal-ur-Rehman in favour of Muhammad Shafi

has neither been registered nor the said document could be

proved in terms of Article 79 of the Qanun-e-Shahadat Order,

1984 which provides that if a document is required by law to be

attested, it shall not be used as evidence until two attesting

witnesses at least, have been called for the purpose ofproving its

execution, if there be two attesting witnesses alive and subject to

the process of the Court and capable of giving evidence. The

petitioners could not produce the Notary Public or the attesting

witnesses of the alleged power-of-attorney, the execution of

which has been expressly denied by the predecessor-in-interest

of respondents No.l to 10 nor even examined the respondents

No. 12 and 13 (alleged attorney and sub-attorney), therefore,

presumption as to authenticity of the same in terms of Article 95

of the Qanun-e-Shahdat Order, 1984 as argued by the learned

counsel for the petitioners is not attracted in the instant case. It

is also pertinent to observe that any tangible immovable property

Civil Petition No. 520-K of2024

of the value of one hundred rupees and upwards, cannot be

transferred except through a registered document in terms of

Section 54 of the Transfer of Property Act, 1882, whereas as per

Registration Act, 1908 the documents of which registration is

compulsory include (a) instrument of gift of immovable property:

and (b) other non-testamentary instruments which purport or

operate to create, declare, assign, limit or extinguish, whether in

present or in future, any right, title or interest, whether vested or

contingent ofthe value of one hundred rupees and upwards, to or

in immovable property. In the case in hand, there is no registered

power-of-attorney, therefore, presumption of correctness can not

be attached in terms of Section 49 of the Registration Act, 1908.

counsel

for

the

petitioners

The

learned

was

confronted to assist the Court as to whether in the absence of

any registered document, whose registration was compulsory,

any immovable property can be transferred on the basis of

general

power-of-attorney,

which

purported

unregistered

otherwise has not been produced or exhibited in terms of Article

79 of the Qanun-e-Shahadat Order, 1984, as neither the alleged

attorney/sub attorney or the Notary Public and the attesting

produced by the predecessor-in-interest of the petitioners, the

learned counsel for the petitioner could not submit any response

hereinabove. Since the basic document that is the alleged general

power-of-attorney dated 19.02.1977 was not registered and has

been held to be a forged document by the three Courts below

nor could deny the factual and legal position as discussed

witnesses of such alleged general power-of-attorney were

Civil Petition No. 520-K of2024

through concurrent findings recorded to this effect, therefore, the

burden was shifted upon the beneficiary of such alleged power of

attorney, which could not be discharged by predecessor-ininterest of the petitioners. The petitioners could not make out a

case requiring this Court to disturb the aforesaid factual and

legal position of three Courts below, whereas the reliance placed

by the learned counsel for the petitioners on the aforesaid

judgments is also misconceived. Admittedly, petitioners are not

in possession of original allotment and lease in respect of subject

plot, therefore, could not establish their claim on the basis of

subsequent power of attorney nor could produce the chain of title

documents, including the basic allotment and lease in favour of

predecessor-in-interest of respondents No.l

Fazalur Rehman. Since the basic document i.e. alleged general

power-of-attorney dated 19.02.1977 has been declared to be of

conveyance or sale deed is also of no legal effect.

Accordingly, we do not find any substance in the

instant petition which, for the reasons to be recorded later

separately, was dismissed vide short order dated 15.07.2024 and

these are the reasons for our short order of even date. At this

juncture, learned counsel for the petitioners had prayed that

sometime may be granted to the petitioners to vacate the subject

the

no legal value, therefore, any subsequent document, execution of

petitioners was acceded to and accordingly, 90 days’ time was

premises, as the executing Court is proceeding with

execution and will issue writ of possession against

petitioners. Such request of the learned counsel for

Civil Petition No. 520-Kof2024

granted to the petitioners to handover the vacant peaceful

possession to respondents No.l to 10 (legal heirs of Fazalur

Rehman) vide short order in the following terms

recorded

reasons

Above petition for leave to appeal is dismissed in the

above terms.

Judge

Karachi:

15.07.2024.

‘

Approved

for Reporting’

(Zubair)

petitioners.

separately, this petition is

direction to the petitioners to vacate the premises in

question within a period of 90 days and handover

the vacant peaceful possession to respondents No.l

-10 (legal heirs ofFazal-ur-Rehm

For more information call us 0092-324-4010279 Whatsapp Dear readers if u like this post plz comments and follow us. Thanks for reading .as you know our goal is to aware people of their rights and how can get their rights. we will answer every question, so we need your help to achieve our goal. plz tell people about this blog and subscribe to our youtube channel and follow us at the end of this post.