JUDGMENT SHEET

IN THE LAHORE HIGH COURT AT LAHORE.

(JUDICIAL DEPARTMENT)

R.F.A.No.217 of 2013.
Dr. Ashiq Hussain Ghauri & another
Vs.
Mansoor Ali Poonawala, etc

JUDGMENT

DATE OF HEARING: 08-05-2014.

APPELLANTS BY: Mr. Muhammad Nawaz Kasuri,
Advocate.
RESPONDENT No.1 BY: Miss Shamsa Noor Virk,
Advocate along with respondent
No.1.
RESPONDENT No.2 BY: Mr. Aamir Mehmood, Advocate.
RESPONDENTS No.3-4 BY: Malik Noor Muhammad Awan,
Advocate.

AMIN-UD-DIN KHAN, J. Through this appeal, appellants

have challenged the judgment & decree dated 17.11.2012 passed

by the learned Civil Judge 1st Class, Lahore, whereby the suit

filed by the appellants-plaintiffs was dismissed.

2. Briefly, the facts as leading to this appeal are that on

07.10.2006 appellants-plaintiffs filed a suit for declaration,

cancellation of documents and permanent injunction. The written

statement was filed and suit was contested. Learned trial court

framed the issues and invited the parties to produce their

respective evidence. Both the parties produced oral as well as

documentary evidence in support of their versions. After the

completion of trial, learned trial court vide judgment & decree

RFA No.217 of 2013. 2

dated 17.11.2012 dismissed the suit. Hence, this appeal by the

plaintiffs-appellants.

3. Learned trial court vide order dated 03.02.2009

framed the following issues:-

1. Whether general power of attorney dated

08.08.1994 in favour of defendant No.1 and the sale
deed dated 22.11.1994 in favour of defendants No.3
& 4 are a result of fraud against the facts and liable
to be declared in effective qua the rights of the
plaintiff? OPP

2. Whether the plaintiff is entitled to the decree for

declaration, cancellation of documents and
permanent injunction as prayed for? OPP

3. Whether the suit has been filed malafidely and to

harass and blackmail the defendants? OPD 3 & 4.

4. Whether the defendant No.3 has become the

absolute and sole owner of the property after
purchasing the share of the defendant No.4? OPD 3
& 4.

5. Whether the suit is hopelessly barred by limitation?

OPD 3 & 4.

6. Whether the suit is not maintainable in its present

form? OPD 3 & 4.

7. Whether the plaintiffs have not come to the court

with clean hands? OPD 3 & 4.

8. Whether the defendant is also entitled to receive

value of his improvements made on the suit
property? OPD 3 & 4.

9. Whether the suit is bad for mis-joinder and non-

joinder of necessary parties? OPD 3 & 4.

10. Whether the plaintiff has no cause of action and

locus standi to file the suit? OPD 3 & 4.

11. Whether the plaintiffs have concealed the material

and relevant facts from the court? OPD 3 & 4.
RFA No.217 of 2013. 3

12. Whether the suit is dismissed in view of preliminary

objection No.12? OPD 3 & 4.

13. Relief.

Learned trial court decided issue No.1 against the plaintiffs.

Issue No.2 was also decided against the plaintiffs on the basis of

findings on issue No.1. Issues No.3 and 8 were decided as not

pressed. Issue No.4 was decided in favour of defendants No.3

and 4. Issue No.5 which is with regard to the limitation was also

decided in favour of defendants No.3 and 4 and against the

plaintiffs. Issues Nos.6, 7, 10, 11 and 12 were decided against the

plaintiffs on the basis of findings on issues No.1 and 2. Issue

No.9 was decided against defendants No.3 and 4 on the basis that

no evidence has been produced.

4. Learned counsel for the appellants argues that in

September, 2005 plaintiffs came to know that the suit plot has

been transferred in the names of defendants No.3 and 4,

therefore, defendant No.1 was contacted who refused to give any

detail to the plaintiffs as there was a power of attorney executed

in favour of defendant No.1 by the plaintiffs in the year 1990;

that when thorough probe was made, plaintiffs came to know

that the power of attorney which was executed in the year 1990

in United Kingdom, was got registered with Sub Registrar

Lahore in the year 1994 and on the basis of that power of

attorney suit plot was got transferred in the names of defendants

No.3 and 4 and subsequently defendant No.4 also surrendered

RFA No.217 of 2013. 4

her rights in favour of defendant No.3 and now defendant No.3

claims to be the full owner of suit plot. Learned counsel argues

that power of attorney which was given in the year 1990, under

section 26 of the Registration Act, 1908 could have been

registered with Sub Registrar within four months and the same is

shown to have been registered in the year 1994 i.e. after four

years of the execution of power of attorney, therefore, its

registration is against the law and on the basis of said power of

attorney further transfer of property is illegal. Learned counsel

argues that the findings recorded by the learned trial court are

absolutely against the law. Learned counsel for the appellants has

mainly argued on the point that registration of power of attorney

in Pakistan after four years from the date of its execution as the

same was executed in United Kingdom in the year 1990, was

defective and as such all the superstructure on the basis of said

power of attorney falls on the ground. Learned counsel for the

appellants has mainly pressed this legal point before us.

5. On the other hand, learned counsel representing

respondent No.1 has stated that he was validly appointed

attorney of appellants-plaintiffs and on the basis of power of

attorney he has rightly transferred the suit property in favour of

defendants No.3 and 4 through registered sale deed.

6. Learned counsel representing respondent

No.2/Housing Society states that respondent No.2 has rightly

transferred the suit property in the names of defendants No.3 and

RFA No.217 of 2013. 5

4, therefore, the findings recorded by the learned trial court are in

accordance with law.

7. Learned counsel for respondents-defendants No.3 &

4 argues that power of attorney is admitted one, whereupon the

duty was validly paid in Pakistan and there is no defect in the

said document; that the findings recorded by the learned trial

court are in accordance with law; that a huge building consisting

upon double story has been erected over the suit plot after its

purchase and that the plaintiffs or their representative who is

resident of Lahore never raised the objection and as such the suit

has dishonestly been filed. Prays for dismissal of this appeal.

8. We have heard the learned counsel for the parties at

full length and also gone through the record minutely with their

able assistance.

9. We have noticed that the pivotal point for

determination in this appeal is that whether the registration of

power of attorney, which was executed in United Kingdom in the

year 1990 the execution of which is admitted one, was necessary

in Pakistan for sale of suit property and what period is provided

for registration of a document which has been executed out of

the country.

10. Learned counsel for the appellants has referred

section 26 of the Registration Act, 1908, which is as follows:

“Section 26: Documents executed out of the

Provinces etc: When a document, purporting to
RFA No.217 of 2013. 6

have been executed by all or any of the parties out

of Pakistan, is not presented for registration till
after the expiration of the time hereinbefore
prescribed in that behalf, the registering officer, if
satisfied-
(a) that the instrument was so executed; and
(b) that it has been presented for registration within
four months after its arrival in Pakistan.
may, on payment of the proper registration-fee,
accept such document for registration.”

The copy of power of attorney has been produced as Ex.P-4 by

the plaintiff. This power of attorney is specifically with regard to

the suit property and irrevocable by the plaintiffs in favour of

defendant No.1, which was executed in United Kingdom on 30th

November, 1990 and authenticated by the solicitors, oath

commissioner as well as representatives of the Federal

Government in the Embassy of Pakistan at London. The duty

was paid on this power of attorney in Pakistan and noted by the

Sub Registrar at Sr. No.3283 on 08.08.1994.

11. The relevant sections to resolve the controversy in

issue are Sections 32 and 33 of the Registration Act, 1908, which

are also reproduced herein:

“32. Persons to present document for

registration. Except in the cases mentioned in
section 89, every document to be registered under
this Act, whether such registration be compulsory
or optional, shall be presented,

(a) by some person executing or claiming under the

same, or, in the case of a copy of a decree or order,
claiming under the decree or order; or
RFA No.217 of 2013. 7

(b) by the representative or assignee of such person; or

(c) by the agent of such a person, representative or

assignee, duly authorized by power-of-attorney
executed and authenticated in manner hereinafter
mentioned.

33. Powers-of-attorney recognizable for

purposes of section 32. (1) For the purposes of
section 32, the following power-of-attorney shall
alone be recognized, namely:-

(a) if the principal at the time of executing the

power-of-attorney resides in any part of Pakistan in
which this Act is for the time being in force, a
power-of-attorney executed before and
authenticated by the Registrar or Sub-Registrar
within whose district or sub-district the principal
resides;

(b) if the principal at the time aforesaid resides in

any other part of Pakistan in which this Act is not in
force, a power-of-attorney executed before and
authenticated by any Magistrate;

(c) if the principal at the time aforesaid does not

reside in Pakistan, power-of-attorney executed
before and authenticated by a Notary Public or any
Court, Judge, Magistrate, Pakistani Consulate or
Vice-Consul, or representative of the Federal
Government:
Provided that the following persons shall not be
required to attend at any registration-office or Court
for the purpose of executing any such power-of-
attorney as is mentioned in clauses (a) and (b) of this
section, namely:-
(i) persons who by reason of bodily infirmity are
unable without risk or serious inconvenience
so to attend;
(ii) persons who are in jail under civil or criminal
process; and
(iii) persons exempt by law from personal
appearance in Court.

(2) In the case of every such person the Registrar or

Sub-Registrar or Magistrate, as the case may be, if
satisfied that the power-of-attorney has been
voluntarily executed by the person purporting to be
the principal, may attest the same without requiring
RFA No.217 of 2013. 8

his personal attendance at the office or Court

aforesaid.

(3) To obtain evidence as to the voluntary nature of

the execution, the Registrar or Sub-Registrar or
Magistrate may either himself go to the house of the
person purporting to be the principal, or to the jail in
which he is confined, and examine him, or issue a
commission for his examination.

(4) Any power-of-attorney mentioned in this

section may be proved by the production of it
without further proof when it purports on the face of
it to have been executed before and authenticated by
the person or Court hereinbefore mentioned in that
behalf.”

The execution of power of attorney is not denied. The only

alleged defect highlighted by the learned counsel for the

appellants that same was got registered in Pakistan after four

years of its execution in abroad. We have dilated upon this point

and a specific question was posed to the learned counsel for the

parties.

“Whether power of attorney executed in United Kingdom,

authenticated by the representative of Federal Government
in U.K was further required to be registered with Sub
Registrar in Pakistan?

12. Learned counsel for the parties advanced general

arguments on this point. As per learned counsel for the

appellants while referring section 26 of the Registration Act,

1908 that it was necessary that same be registered in Pakistan

within four months from the date of its execution. As per learned

counsel for the respondents it was not required registration with

Sub Registrar in Pakistan.

RFA No.217 of 2013. 9

13. We have thoroughly examined this question.

Section 33 of the Registration Act is relevant with regard to the

point in issue in this case. According to Clause (c) of Sub

Section (1) of Section 33 of the Registration Act, power of

attorney in question which was authenticated by the

representative of Federal Government in U.K was a valid power

of attorney for presentation of sale deed and for registration

before Sub Registrar. The only requirement of power of attorney

executed abroad and authenticated in accordance with Clause (c)

of Sub Section (1) of Section 33 is that the duty required under

the law is to be paid in Pakistan and the same has admittedly

been paid in Pakistan in the year 1994. The Sub Registrar has

endorsed the payment of duty and noted the power of attorney in

his record, therefore, it was a valid power of attorney on the basis

of which the suit property had been sold in favour of

respondents-defendants No.3 and 4. The execution of power of

attorney is not denied, its authentication by solicitor, oath

commissioner and the representative of Federal Government of

Pakistan at London has also not been disproved and the case

pleaded by the appellants in their plaint that after execution of

power of attorney a cheque issued by their agent was dishonored,

therefore, the relationship of faith of principal upon the attorney

was no more left. It is not the case of appellants that they ever

revoked that power of attorney and further it is also not denied

that the alleged power of attorney was not irrevocable. We are of

 RFA No.217 of 2013. 10

the view that if an irrevocable power of attorney is issued in

favour of agent, it is between the lines that there is no interest of

principal in the property about which power of attorney has been

given. It means that there is no interest of principal left in the

property about which an irrevocable power of attorney has been

given. In the circumstances of this case, when the power of

attorney was given in the year 1990 and duty was paid in

Pakistan in the year 1994, it was a valid power of attorney which

also has the presumptions contained under Article 95 of the

Qanun-e-Shahadat Order, 1984, on the basis of which the

property has been transferred in favour of defendants No.3 and 4.

The transaction whereof has been confirmed by respondent No.1,

who appeared before the Court today. In this view of the matter,

the findings on issue No.1 recorded by the learned trial court

against the appellants-plaintiffs are absolutely in accordance with

law. The findings of learned trial court on the point of limitation

are correct, as irrevocable power of attorney is of the year 1990

and the suit property has been transferred on the basis of this

power of attorney through registered sale deed registered on

22.11.1994 and the suit has been filed on 07.10.2006. No other

issue has been agitated before us. Consequently, we see no force

in this appeal. It is hereby dismissed with costs throughout.

(FAISAL ZAMAN KHAN) (AMIN-UD-DIN KHAN)

JUDGE JUDGE
Qurban*
Approved for Reporting