Civil Revision No.2871 of 2011, heard on 22nd May, 2019.
(a) Specific Relief Act (I of 1877)—
—-S. 42—Qanun-e-Shahadat (10 of 1984), Art. 114—Limitation Act (IX of 1908), S. 3—Suit for declaration—Limitation—Estoppel, principle of—Applicability—Scope—General power of attorney—Judicial record—Presumption of correctness—Suit property was transferred through general attorney which was not challenged by the principal during his life time—Contention of plaintiffs was that impugned mutation and subsequent transactions were based on fraud and misrepresentation—Suit was decreed by the Trial Court but Appellate Court dismissed the same—Validity—Predecessor-in-interest of plaintiffs survived for fifteen years after attestation of impugned mutation but he did not assail the same during his life time—If any authority was not conferred upon the agent but subsequently it was acknowledged by the principal then it carried value in the eye of law—Conduct of predecessor-in-interest was sufficient to prove that he was not claiming the ownership of suit property—Principle of estoppel was applicable in the present case—Judicial record had presumption of correctness and did not require any proof—Decision of Court of competent jurisdiction could not be equated as at par with the statement of witness—Present suit had been filed after twenty eight years and same was time barred—Any suit instituted beyond the statutory period was to be dismissed—Jurisdiction of Court would depend on law of limitation—If proceedings before the Court were beyond the scope of limitation then it could not assume jurisdiction—Plaintiffs had failed to point out any illegality or irregularity in the impugned judgment and decree passed by the Appellate Court—Revision was dismissed, in circumstances.
Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others PLD 1983 SC 68; Muhammad Ramzan v. Lahore Development Authority, Lahore 2002 SCMR 1336; Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964; Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330; Kala Khan and others v. Rab Nawaz and others 2004 SCMR 517; Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Ghulam Abbas and others v. Mohammad Shafi through LRs and others 2016 SCMR 1403 and Nasir Fahimuddin and others v. Charles Philips Mills and others 2017 SCMR 468 rel.
(b) Limitation Act (IX of 1908)—
—-S. 3—Any suit, appeal or application instituted, preferred or made beyond statutory period was to be dismissed.
(c) Civil Procedure Code (V of 1908)—
—-S. 96 & O. XLI, R. 33—Variation between judgment of Trial Court and First Appellate Court—Effect—Judgment of First Appellate Court would be given preference over the judgment of Trial Court.
Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617; Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs and others 2013 SCMR 1300 and Amjad Ikram v. Mst. Asya Kausar and 2 others 2015 SCMR 1 rel.
(d) Words and phrases—
—-‘Ratification’—Connotation.
The expression “ratification” means the making valid of an act already done. This principle is derived from the latin maxim “ratihabitio mandato aequiparatur” meaning thereby a subsequent ratification of an act is equivalent to a prior authority to perform such act.
Fakhar-uz-Zaman Akhtar Tarar for Petitioners.
Najam Iqbal for Respsondents Nos. 9 to 24.
Atif Mohtashim Khan and Razia Begum for Respondent No.2(b).
Date of hearing: 22nd May, 2019.
JUDGMENT
CH. MUHAMMAD MASOOD JAHANGIR, J.—Undoubtedly, Sadhu son of Janku was owner in possession of the suit land, which through Muhammad Hussain, general attorney of the former vide Mutation No. 1074 dated 08.05.1973 was transferred to Ghulam Jillani, respondent No.1. Although, Sadhu survived till 15.10.1988, but the said alienation was never disputed, however after about 13 years of his death, his son, Niamat Ali and grandson, Muhammad Bashir instituted suit for declaration to assail the general power of attorney as well as said mutation and subsequent transfers being fake, forged, fictitious and result of fraud. The beneficiaries of the impugned mutation resisted the suit on factual and legal grounds; that sale vide mutation No.1074 was pre-empted by one Sona Khan and during its proceedings, Sadhu himself appeared and acknowledged the agency deed as well as the transaction, as such petitioners were not only estopped by the conduct of their predecessor, rather they had no locus standi to institute the suit and that suit was badly time barred. After settling of issues, collecting and appreciating the evidence, though the suit was decreed by the learned Trial Court, yet its judgment was reversed and suit was dismissed by the learned Appellate Court vide impugned judgment.
2. Mr. Fakhar-uz-Zaman Akhtar Tarar, Advocate for the plaintiffs inaugurally submitted that by examining official witnesses (PW1&2), it was successfully established that fake, forged, fictitious and fabricated general power of attorney was maneuvered by Muhammad Hussain, who collusively transferred the suit land to respondent No.1 vide basic mutation No.1074, but learned lower Appellate Court not only ignored their credible and unrebutted evidence, rather twisted it to reverse the comprehensive decree of its subordinate court. He added that evidence recorded in other file of pre-emption suit could not be shifted and relied upon in the file in hand to base its decision. He further emphasized that mutation proceedings were not judicial in nature, which did not happen to confer title and when its genuineness was challenged, burden squarely lies on the beneficiaries to prove the actual transaction, but despite the fact that not an iota of evidence was brought on record in this regard, the learned lower Appellate Court erred in law to perpetuate it. He lastly pleaded that subject documents being product of collusiveness, fraud and impersonation could be challenged at any point of time, especially whenever its entry was repeated in the revenue record, which afforded fresh cause of action, but through the impugned judgment, the learned Appellate Court omitted to consider the well-established principle of law to this effect as well.
In Contra, Mr. Najam Iqbal Balal, Advocate for the contesting respondents Nos.9 to 24 submitted that after the registration of general power of attorney, the original mutation was attested on 08.05.1973 and soon thereafter the transaction of sale was pirated through a suit for pre-emption, which was not only in the complete knowledge of the vendor from the day of inception of the said suit, rather he appeared as DW and acknowledged the execution of agency deed besides sale through the afore-noted mutation, hence if at the most the execution of the power of attorney was not proved, even then the vendor had ratified the same in his life by his own act. He further added that attested copy of judgment and decree passed in the pre-emption suit was brought on record without any objection, which having strong presumption of correctness was duly noticed by the learned Appellate Court that decree passed in the pre-emption was in the complete notice of the petitioners from the day of filing of the suit under this petition, but it was not assailed through collateral remedies or in the suit in hand, hence it being admitted became final and was rightly relied upon. He lastly emphasized that the basic mutation was attested in 1973, whereas the suit was instituted after 28 years by the son and the grandson of the original vendor, who had no locus standi as well as estopped to call these in question having not been assailed by their predecessor, moreover, the suit was badly time barred, hence nothing wrong was committed by the learned lower Appellate Court in reversing the findings of learned Trial Court.
3. Arguments heard and record perused.
4. No doubt, plaintiffs brought some tangible evidence on record to prove that general power of attorney was fakely managed for the alienation of suit land, but it was also a hard fact that the original transaction settled by the agent on the basis thereof was never disputed by its principal, who while appearing during proceedings of the suit for pre-emption admitted the construction of agency deed as well as alienation made in favour of respondent No.1 through the agent, whereas Sadhu despite surviving for years and years himself did not question his statement recorded in the pre-emption suit or the judgment (Exh.D30) passed thereunder, whereas some part of it being relevant is reproduced hereunder:-
“Defendant in order to prove the sale price shown in the Mutation produced 2 witnesses Sadho son of Janko appeared as PW2. He is the person who sold the land in question to defendant Ghulam Jillani He deposed that he had executed General power of attorney to one Muhammad Hussain son of Chaudhri Pir Bakhsh for the sale of the suit property who sold the same to defendant for Rs.9000 and also stated that this is the actual amount which he received through his general attorney but plaintiffs failed to put any question in cross-examination.
It was also admitted position that pre-emption decree was promptly incorporated in the revenue record vide mutation No.1107 of 1977 (Exh.D18). A glance over plaint filed by the petitioners reflected that they were also aware of the said decree, but till today through collateral remedies or even by the lis in hand, its setting aside was not sought for. So it being unchallenged, unrebutted and especially part of judicial record attained strong presumption of correctness and did not require its anymore proof. See Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others (PLD 1983 SC 68), Muhammad Ramzan v. Lahore Development Authority, Lahore (2002 SCMR 1336) and Fayyaz Hussain v. Akbar Hussain and others (2004 SCMR 964). The final decision of the court of competent jurisdiction cannot be equated at par with statement of some witness, so Article 57 of the Qanun-e-Shahadat Order, 1984 will not come into play.The emphasis of Mr. Tarar that Sadhu was impersonated in the said proceedings was fallacious. Had the decree been challenged, only then such an objection could be raised and on account of mere oral assertion, a document arising out of judicial proceedings could not be rebutted.
5. There is much substance in the argument of Mr. Najam Iqbal Balal, Advocate for respondents Nos.9 to 24 that Sadhu while appearing in the pre-emption suit validated general power of attorney as well as subsequent transfer, who rightly referred Section 196 of the Contract Act,1872 to strengthen his said argument and its bare reading affirmed that if any authority was not conferred upon the agent, but subsequently it was acknowledged by the principal, then it carried value in the eye of law. The expression “ratification” means the making valid of an act already done. This principle is derived from the latin maxim “ratihabitio mandato aequiparatur” meaning thereby a subsequent ratification of an act is equivalent to a prior authority to perform such act. It is for this reason, the ratification assumes an invalid act which is retrospectively validated. As such the moment agency deed and the transaction struck on its basis was ratified by Sadhu in his life, the chapter was closed for all times to come.
Apart from what has been discussed so far, Sadhu, predecessor-in-interest of petitioners, survived for 15 years after the attestation of subject mutation, but during all this period, he neither asked the beneficiary to vacate the property nor impugned the mutation through initiation of any proceedings, meaning thereby that he himself acknowledged through his conduct and silence that the property had already been sold by him in favour of respondent No.1 and, therefore, he had no concern, right or interest therein. Obviously in such facts and circumstances, his conduct was sufficient to prove that he was not claiming the ownership of
The other aspect of the case was that the disputed mutation was attested in the year 1973, whereas the suit in hand was instituted in 2001 after an elapse of almost 28 years and the same was badly time barred. There is unanimity of the view among the superior courts that because of the mandatory nature of section 3 of the Limitation Act, 1908, the court before which any suit, appeal or application is instituted, preferred or made beyond the statutory period is obliged to dismiss the same. The jurisdiction of a court is always dependent on law of limitation. If the proceedings before the court are propelled beyond the scope of limitation, it cannot assume jurisdiction. There is no second opinion that law of limitation, which is statute of repose, is intended to quit title and to bar, stale and water logged disputes must be stringently followed and the courts cannot desist from applying the said law. After the expiry of prescribed period, the door of justice is closed and no plea of scarcity, anguish, ignorance or mistake can be availed. So the learned lower appellate court was perfect to declare that the suit was filed beyond the prescribed period of limitation.
6. It is also recognized till now that in case of variation between the judgments of learned Trial Court and the learned lower Appellate Court, the findings of the latter must be given preference in the non-existence of any persuasive reason to the contrary as has been held by the apex Court in the judgments reported as Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617), Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs and others (2013 SCMR 1300) and Amjad Ikram v. Mst. Asya Kausar and 2 others (2015 SCMR 1). The learned counsel for petitioners is unable to point out any irregularity or illegality as well as misreading and non-reading of evidence committed by the learned lower Appellate Court while passing the impugned judgment, which is not open to any exception by this Court in exercise of revisional jurisdiction, hence this Civil Revision being devoid of any merit is dismissed accordingly. No order as to costs.
ZC/N-22/L Petition dismissed.