IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT
Mr. Justice Maqbool Baqar
Mr. Justice Munib Akhtar
Mr. Justice Qazi Muhammad Amin Khan
( V
CIVIL APPEAL NO. 221/2018
(Against the judgment dated 28.11.2017 of
the Lahore High Court, Mutton Bench passed
in RSA No. 8/1998)
Haq Nawaz etc.
Versus
Appellant(s)
Ban aras etc. 
Respondent(s)
For the Appellant(s)
Respondent Nos. 1-7
For Respondent No.8-10
Date of Hearing
Moulvi Anwar-ul-Haq, ASC
Ex-Parte
Mr. Anwar Mobiri Ansari, ASC
15.09.2021
ORDER
Magbool Bagar, J. Assailed through the above appeal
was the judgment of the Lahore High Court, whereby the respondent
No.8 to 10's regular second appeal against the concurrent
Judgments of the fora below was allowed.
2. The dispute mainly was with regard to the sale of the
land owned by Mst. Channan Jan, the predecessor in interest of
respondents No.] to 7. The impugned sale was affected by Ghulam
Rasool, the predecessor in interest of appellants No.) and 2, who on
14.10.1974, as attorney of Msf. Channan Jan, transferred the land in
favour of his sons, the appellants Nos.] and 2, through oral sale
mutation No. 61.
3. The mutation, upon being challenged by Mst. Channan
Jan, 
was 
cancelled 
by 
the 
concerned 
Assistant
Commissioner/collector on 30.4.1975. The appeal filed by the
appellants No.] and 2 against the said cancellation was dismissed
by the concerned Additional Commissioner on 25.10.1975. However
instead of pursuing the matter before the revenue hierarchy any
further, the appellants No.] and 2 on 30.10.1975 filed a suit, seeking
to be declared owners of the suit land on the basis of the aforesaid
oral sale mutation, though the same, as noted above, had already
been cancelled. The said appellants however in the alternative
sought a decree for specific performance of an agreement to sell
dated 02.9.1 974. They claimed that in transferring the suit land in their
favour, Ghulam Rasool, who was their father, and a tenant of Mst.
Channan Jan, in respect of the suit land, acted under and in terms
of a General Power of Attorney executed and registered by Mst.
Channan Jan in his favour on 17.2.1973. According to said
appellants, Ghulam Rasool had on 02.9.1974 entered into an
agreement to sell the suit land with Mst. Channa Jan for a sale
consideration of RS.40,000/-,
4. It is an admitted fact that Mst. Channan Jan was an old
illiterate village dweller, with ill health. The lady was not able to even
move on her own, and had been carried to the Registrar's office for
the execution of the power of attorney by someone. Ghulam Rasool,
the purported attorney, while deposing before the trial Court, also
has not denied the suggestion that she was a parda nashin lady. It
was not even pleaded that she received any independent advice
and/or that contents of the power of attorney were read over and
explained to her before she executed if.
5. Mst. Channan Jan's stance throughout has been that
she appointed Ghulam Rasool, who was her tenant in occupation,
as her attorney, merely to manage the affairs of her land and for
nothing more, and therefore, given the status of the lady, it was
Imperative for the appellants No.] and 2 to have demonstrated and
proved that at the time of the execution of the power of attorney,
she was fully conscious of the fact that the document also contained
power to sell and that the entire document was read out and
explained to her fully and truly, and further that she executed it under
an independent advice. They had also to prove that the lady was
fully aware and conscious of the consequences and implications of
executing the said document. However neither did they prove, nor
even pleaded any of it. It therefore cannot be held that Ghulam
Rasool, was in fact authorized by Mst. Channan Jan to sell the suit
land. The impugned sale/transfer was thus liable to be set-aside on
this ground alone. In any view of the matter, since admittedly, the
power of attorney did not specifically authorized Ghulam Rasool, to
convey the property to his sons, or for that matter to any of his near
ones, nor has he been able to prove that, he was otherwise so
authorized. The impugned sale mutation was liable to be cancelled
as rightly done by the revenue hierarchy. Since long it is well
established that an attorney cannot lawfully make transfer of a
property under agency in his own name, or for his benefit, or in favour
of his associates, without explicit consent of the principal, and in the
event he does so, the principal, under the mandate of section 215 of
the Contract Act, has a right to repudiate such transaction. Msf.
Channan Jan having disowned the subject transaction, the some
was rightly annulled as noted above.
6. In any case the power of attorney, of whatever worth it
was having admittedly been revoked by Mst. Channan Jan through
revocation deed dated 05.9.1974, and thus on 14.10.1974, the date
on which Ghulam Rasool purportedly transferred the suit land, he no
more remained attorney of the lady, and stood denuded of
4
whatever power he purportedly enjoyed thereunder. The transfer of
The suit land by Ghulam 1asool was without authority and was of no
legal effect.
7. Although as noted above, the appellants No.] and 2's
case as initially presented before the trial Court, through their plaint
dated 30.] 0.1975. simply was that their father, being attorney of Mst.
Channan Jan, on 02.9.1974, entered into an agreement to sell the
suit land with them and thereafter transferred the lands in their favour
through mutation No.61 attested on 14.10.1974. There was absolutely
no mention of any sale agreement between their father Ghulam
Rosool and the lady. The plaint was thereafter amended twice firstly
on 04.3.1981 and then on 21.2.1985, however still there was no
mention of any sale between the lady and Ghulam Rasool. It was
only through third amended plaint filed on 03.1.1987, that the said
appellants introduced a new story claiming that Mst. Channan Jan
had in fact orally agreed to sell the land to Ohulam Rasool for an
amount of Rs.40,000I- and it was upon payment of the said sale
consideration amount that she executed the general power of
attorney dated 17.2.1973 in favour of Ghulam Rasool, to enable him
to pay the outstanding dues in respect of the suit land so that
proprietary rights therein may be conferred on her, and the land may
then be transferred accordingly. The story as can be seen from the
forgoing was so introduced, by the appellants No.1 and 2 to enable
them to plead that since the power of attorney was coupled with
interest the same could not have been lawfully revoked. However in
the first place the appellants No.] and 2 could not have been
allowed to set up and plead a case different from what they initially
narrated and pleaded, secondly, this subsequent plea even
otherwise did not inspire confidence, it was merely a vague assertion,
bereft of necessary details. The said appellants did not even
mentioned as to when, where and in whose presence the land was
orally sold to Ghulam Rasool as claimed by them. The alleged
purchase by Ghulam Rasool and the claim that the power of
attorney was executed for consideration also does not find support
even from the written statement tiled by Ghulam Rasool in the case.
Ohulam Rasool has through his written statement which he filed on
03.2.1976 simply conceded the claim of the appellants No.1 and 2 as
set out in their original plaint dated 30.10.1975, which plaint, as noted
earlier, made no mention of any sale in favour of Ghulam Rasool or
of any payment by him to Mst. Channan Jan as a consideration
therefor. Ghulam Rasool in his evidence recorded at an earlier stage
of the trial as PW-4, simply deposed that Mst. Channan Jan had
appointed him as her attorney, and as such he sold the suit land to
the appellants No.1 and 2. However subsequently, after the above
amendment in the plaint, when Ghulam Rasool was examined as
PW-7, he claimed to have purchased the property himself and
having himself paid the agreed sale consideration of RS.40,000/- to
Mst, Channan Jan in presence of witnesses Allah Wasaya (PW-5) and
Allah Dawaya (PW-6), as well as of the son and daughter of Mst.
Channan Jan, namely, Banaras and Khadija, the respondent No.]
and 5 respectively, but he still failed to mention the date and venue
of the purported transaction. Although the said two witnesses who
were cousin brothers of Ghulam Rasool, were examined by the
appellants No.1&2, however their evidence failed to lend any
credence to the appellants' stance, as they contradicted each
other in material details.
8. The appellants No.] and 2 have thus miserably failed to
establish that the suit land was sold by Mst. Channan Jan to Ghulam
S 
6
Rasool and/or that the power of attorney was executed in
consideration of the price of land paid by Ghulam Rasool and/or
that the same was otherwise coupled with interest. The power of
attorney also does not say so. No strings were therefore attached to
the power of attorney that preventing Mst. Channan Jon from
revoking it before Ghulam Rasool acted thereunder, which she did,
before the purported oral sale mutation in favour of the appellants
No.] and 2 was recorded. The said mutation was therefore wholly
without authority, illegal and ineffective and therefore was rightly
cancelled.
9.
As regards the agreement to sell dated 02.9.1974, it may
be noted, that despite the fact that Mst. Ohannan Jan had denied
entering into any agreement with/or selling her suit land to Ghulam
Rasool, and further that neither the relevant roznamcha rupt, nor the
purported sale mutation, makes mention of any written agreement.
However,and despite the fact that the stamp paper does not bear
the name of Ghulam Rasool, and was rather purchased in the name
of someone else. Neither the purchaser was produced nor was the
vendor of the stamp paper examined, or was the relevant register of
the stamp vendor summoned, and more crucially the witnesses
examined in respect of the said agreement did not mention the date
thereof. The above gives credence to the respondents' stance that
the agreement was manipulated subsequently in order to defeat the
consequences of the cancellation of power of attorney and is
therefore of no avail to the appellants.
10.
So for as the contention of the appellants that sale of the
suit property in favour of respondent No.8 to 10 is hit by doctrine of lis
pendens, as envisaged by the provision of section 52 of the Transfer
7
of Property Act, 1882 which provides that a suit land cannot be
transferred by any party to the suit, so as to effect the rights of the
 other party thereto, under the any decree or the order which may
be made in the suit. As noted above, the said restriction is subject to
the outcome of the suit, thus the fate of such sale/transfer depends
upon the outcome of the suit. Whereas in the present case, since
 
purportediqsale in favour of the appellants No.1 and 2 has been held
to be illegal and without authority, they have no locus standi to
object to the sole of the land in favour of respondents No.8 to 10. The
appeal is dismissed.
Islamabad, the 
7511 September, 2027
(ADmit Shjr
APPROVED FOR REPORTING'