Stereo. H C J D A 38.

JUDGMENT SHEET
IN THE LAHORE HIGH COURT
RAWALPINDI BENCH RAWALPINDI
JUDICIAL DEPARTMENT

Civil Revision No.103/D/2022

Muhammad Umair Pasha, etc. Versus District Collector, etc.

JUDGMENT
Date of Hearing: 08.11.2022.
Petitioners by: M/s Malik Shahid Mehmood Kandwal,
Advocate and Malik Muhammad Fiaz
Kandwal, Advocate.
Respondents No.1 and Mr. Mushtaq Ahmad Mohal, Additional
2 by: Advocate General.
Ms. Amna Ali, Assistant Advocate
General.
Respondent No. 3 by: Mr. Faisal Kiyani, Advocate
Respondent No. 4 by Ch. Adeel Fraz, Advocate.

Anwaar Hussain, J. Through this single judgment, titled Civil

Revision (hereinafter referred to as “CR No. 103”), along with Civil
Revision No.104-D/2022 (hereinafter referred to as “CR No. 104”) as
well as Civil Revision No. 212-D/2022 (hereinafter referred to as “CR
No. 212”) are intended to be decided.

2. Civil Revisions referred above lay challenge to the findings of

the learned Appellate Court below passed by way of a consolidated
judgment dated 11.12.2021, in three separate appeals under Section 96
of the Code of Civil Procedure, 1908 (hereinafter referred to as
“CPC”). CR No. 103 emanates from the civil suit titled “Naila
Tabassum v. District Collector and others” (hereinafter referred to as
“the declaratory suit”) in which declaration along with possession as
well as permanent and mandatory injunction and cancellation of sale
deed bearing Document No.3610/1 dated 20.12.2018 (hereinafter
referred to as “the impugned sale deed”) pertaining to house
C.R. No.103/D/2022 2

measuring 06 marlas and 249 square feet situated in Model Colony,

Jhelum (hereinafter referred to as “the suit property”) was sought
whereas CRs No.104 and 212 relate to findings of the learned Courts
below in case titled “Naila Tabassum v. Sheraz Ali and others”
(hereinafter referred to as “the recovery suit”) wherein recovery of
household articles, valuing Rs. 3,153,700/-, was prayed for by
respondent No.3/Naila Tabassum, who for facility of reference is
hereinafter referred to as “the plaintiff/respondent”. The learned Trial
Court decreed the declaratory suit and judgment and decree of learned
Trial Court was upheld by the learned Appellate Court below whereas
the recovery suit was dismissed by the learned Trial Court, however,
the learned Appellate Court accepted appeal of the plaintiff/respondent
and decreed the recovery suit as well. The petitioners in CR No. 103,
namely, Muhammad Umair Pasha and Mst. Ayesha Pasha Dar were
defendant Nos.4 & 5 in the declaratory suit and were purchasers of the
suit property and are hereinafter referred to as “the
defendants/purchasers”. Respondent No.4, namely, Sheraz Ali was
defendant No.3 in the declaratory suit and is also petitioner in CR No.
212, who was admittedly given general power of attorney by the
plaintiff/respondent to deal with suit property and is hereinafter referred
to as “the defendant/attorney”. In the declaratory suit, District
Collector, Jhelum as well as Sub-Registrar, Jhelum were also arrayed
as defendants who are respondents before this Court in CR No. 103 and
are hereinafter referred to as “the official respondents”. In the
recovery suit, defendant/attorney was defendant No.1 and
defendants/purchasers were defendants No.2 & 3.

3. Succinctly stated, the plaintiff/respondent in the declaratory suit

claimed that she is owner in possession of the suit property vide
registered sale deed No.443 dated 08.03.1993 and the
defendants/purchasers as well as the defendant/attorney have nothing
to do therewith, with the averments that the defendant/attorney, in
connivance with the official respondents, prepared a general power of
C.R. No.103/D/2022 3

attorney bearing Document No.235/4 dated 27.04.2017 (hereinafter

referred to as “the GPA”) and misused the same for selling the suit
property to the defendants/purchasers through the impugned sale deed
and when the plaintiff/respondent came to Pakistan from Denmark, on
23.01.2019, she immediately got the GPA revoked, through revocation
deed dated 29.01.2019 and, hence, the impugned sale deed, in favour
of the defendants/purchasers is result of fraud and is liable to be
cancelled. The defendants/purchasers filed contesting written statement
with the plea that they are transferees for value and the declaratory suit
has been instituted just to cause harassment to them. The
defendant/attorney also filed a contesting written statement with the
assertion that the plaintiff/respondent took Rs.6,000,000/- from him
and the GPA was accordingly executed in his favour and it was on the
strength of the GPA, which is a duly registered document for
consideration, that he sold the suit property to the defendants/
purchasers and possession was accordingly delivered. In the recovery
suit, the plaintiff/respondent asserted that there were household articles
lying in the suit property, as per list appended with the recovery suit,
which have been illegally taken over by the defendants/purchasers and
despite repeated demands, the same have not been returned. The
recovery suit was also contested by the defendants/purchasers as well
as the defendant/attorney by filing separate written statements.

4. Consolidated issues were framed in both the suits, followed by

recording of the evidence and, vide judgment and decree dated
08.06.2021, the declaratory suit of the plaintiff/respondent was decreed
whereas the recovery suit was dismissed. The said judgment was
assailed by all the parties except the official respondents and same was
upheld in appeal, vide impugned judgment and decree dated
11.12.2021, to the extent of the declaratory decree in favour of the
plaintiff/respondent and was reversed by the learned Appellate Court
below to the extent of the recovery suit by accepting the appeal of the
C.R. No.103/D/2022 4

plaintiff/respondent and the recovery suit was also decreed. Hence, the
instant as well as the connected Civil Revisions have been filed.

5. Learned counsel for the defendants/purchasers submits that

execution of the GPA by the plaintiff/respondent in favour of the
defendant/attorney was never denied and hence, the findings of the
learned Courts below are not sustainable in the eye of law. It is all the
more so when no particulars of fraud have been given in the plaint, in
general, and the averments made in the plaint of the declaratory suit
does not contain a word against the defendants/purchasers in particular.
Adds that the defendants/purchasers are transferees for value and both
the learned Courts below have erred in appreciating the factual matrix
as well as evidentiary resume of the case inasmuch as prior to institution
of the suits, the plaintiff/respondent instituted a suit against the
defendants/purchasers as well as the defendant/attorney (hereinafter
referred to as “the prior suit”), on 02.02.2019, with same relief, with
the averments that one Khurram Shahzad is son of a cousin of the
plaintiff/respondent and on instructions of said Khurram Shahzad, she
executed the GPA in favour of the defendant/attorney who is statedly
the best friend of said Khurram Shahzad and the purpose was to defend
a suit titled “Manzoor Masih vs Naila Tabassum” instituted against her
by one Manzoor Masih pending before the Civil Court, Jhelum
pertaining to the suit property and the GPA has been misused by the
defendant/attorney whereas in the declaratory suit, the
plaintiff/respondent has twisted her stance regarding the role of said
Khuram Shahzad. Further adds that the plaintiff/respondent is
approbating and reprobating inasmuch as on the one hand, she claims
that she is a household lady settled in Denmark for the last 40 years,
prior to the institution of the suits, and is unable to read and write Urdu
language and was unaware of the contents of the GPA whereas, on the
other hand, her entire pleadings are in Urdu and so is the GPA as well
as the revocation deed, which goes on to show that the
plaintiff/respondent is in league with the defendant/attorney and said
C.R. No.103/D/2022 5

Khurram Shahzad, and intends to deprive the defendants/purchasers

from the ownership of the suit property, which she herself has sold to
the defendants/purchasers, through her general attorney (defendant/
attorney).

6. Learned counsel for the defendant/attorney submits that the

defendant/attorney purchased the suit property for value coupled with
the GPA, which is duly registered and on the basis of the same, the suit
property was further sold to the defendants/purchasers and hence, no
fraud was committed.

7. Conversely, learned counsel for the plaintiff/respondent submits

that the learned Appellate Court below has rightly upheld the findings
in the declaratory suit instituted by the plaintiff/respondent and has
rightly reversed the findings of the learned Trial Court in the recovery
suit, to the extent of recovery of household articles lying in the suit
property. Learned Law Officer submits that the matter relates to the
dispute between the private parties and allegation of any connivance of
the official respondents in preparation of the GPA has not been
established and the same, being genuine and registered, carries
presumption of truth, which the plaintiff/respondent failed to rebut.

8. Arguments heard. Record perused.

9. Following are the core issues, which require opinion of this

Court:

i. Whether the plaintiff/respondent was able to prove that

the defendant/attorney obtained the GPA fraudulently in
connivance with the defendants/purchasers and the
official respondents and while exceeding the authority
granted to him under the GPA, has alienated the suit
property in favour of the defendants/purchasers through
the impugned sale deed and therefore, the same is void
ab-initio and not binding on the plaintiff/ respondent and
whether she has discharged the burden to prove the
same? and
C.R. No.103/D/2022 6

ii. Whether the plaintiff/respondent was entitled to get

benefit of being a pardanashin lady and as a
consequence thereof it was for the
defendants/purchasers to prove that they are bonafide
purchasers?

10. The plaintiff/respondent admittedly is an overseas Pakistani

residing in Denmark for the last more than 40 years. She claims that she
is a simple and pardanashin lady, unable to read and write Urdu
language and is also unaware of the niceties of the legal process in
Pakistan and hence, when she was persuaded by her close relative,
namely, Khurram Shahzad to execute the GPA in favour of the
defendant/attorney for pursuing the suit instituted by one Manzoor
Masih, she did so without being conscious and aware of the fact that
power to sell the suit property has also been included in the GPA and
conferred upon the defendant/attorney. In this manner, fraud has been
committed and played upon her and the GPA was misused by the
defendant/attorney. It is with such assertions that the declaratory suit
was instituted whereas the recovery suit was instituted with the
averments that when the possession of the suit property was given by
the defendant/attorney to the defendants/purchasers, valuables such as
furniture, electronics etc., worth Rs.3,153,700/- were lying in the same
that have been taken over illegally by the defendants/purchasers.

11. Before rendering the opinion in the matter, it will be imperative

to reproduce consolidated issues framed by the learned Trial Court,
which read as under:

“CONSOLIDATED ISSUES

1. Whether plaintiff Naila Tabassum is owner of the suit house

while registered sale deed No.3610 dated 20.12.2018,
executed in favour of defendants No.4 & 5, by defendant No.3
through general power of attorney No.235 dated 27.04.2017
is result of fraud, misrepresentation and collusiveness of
defendants, hence same is liable to be cancelled? OPP
C.R. No.103/D/2022 7

2. Whether defendants No.4 & 5 have illegally occupied the suit

house? OPP

3. If issue No.1 & 2 are proved in affirmative, whether plaintiff

Naila Tabassum is entitled to get the decree of declaration,
cancellation of registered sale deed No.3610 dated
20.12.2018, recovery of possession alongwith permanent and
mandatory injunction as prayed for? OPP

4. Whether plaintiff Naila Tabassum is entitled to recover

household articles as per list annexed with connected plaint
of suit title Naila Tabassum VS. Sheraz Ali etc or
Rs.31,53,700/- as alternative price? OPP

5. Whether plaintiff has no cause of action to file instant suit as

well as connected suit title Naila Tabassum VS. Sheraz Ali
etc? OPD

6. Whether defendants No.4 & 5 are bona-fide purchaser of the

suit house through registered sale deed No.3610 dated
20.12.2018? OPD No.4 & 5.

7. Whether the suits of plaintiff title “Naila Tabassum VS.

District Collector etc” and “Naila Tabassum vs. Sheraz Ali,
etc” are false and frivolous, hence, same are liable to be
dismissed with special cost u/s 35-A CPC? OPD.

8. Relief.”

The suits were heard together and as stated earlier, through consolidated
judgment, the learned Trial Court, decreed the declaratory suit whereas
the recovery suit was dismissed. Insofar as dismissal of the recovery
suit is concerned, the glaring contradiction between the statements of
the plaintiff/respondent led the learned Trial Court to render its findings
inasmuch as the plaintiff/respondent in a criminal case got registered
by her, admittedly, claimed the value of the household articles in terms
of Rs.1,000,000/- whereas the same has been inflated to Rs.3,153,700/-
as alternate price of said articles claimed in the recovery suit. While
deciding the appeals preferred by the parties, the learned Appellate
Court upheld the findings of the learned Trial Court to the extent of the
declaratory suit whereas regarding the recovery suit, the findings were
reversed and the recovery suit was also decreed, inter alia, for the
reasons that prior to execution of the impugned sale deed by the
‫‪C.R. No.103/D/2022‬‬ ‫‪8‬‬

‫‪defendant/attorney in favour of the defendants/purchasers, an‬‬

‫‪agreement to sell was executed which contemplated that the suit‬‬
‫‪property was sold along with household articles and hence, the‬‬
‫‪defendants cannot deny that said articles are not lying with them.‬‬

‫‪12.‬‬ ‫‪The nub of the matter is the status of the GPA. Perusal of the‬‬
‫‪record with the able assistance of learned counsel for the parties reveals‬‬
‫‪that the plaint, the revocation deed as well as the appeal are clearly‬‬
‫‪written in Urdu language and hence, the argument of learned counsel‬‬
‫‪for the plaintiff/respondent that she was naive and unaware about the‬‬
‫‪contents of the GPA does not hold water. A copy of FIR No.86/19 was‬‬
‫‪exhibited as Exh-P.5 whereas the copy of the suit titled “Manzoor‬‬
‫‪Masih v. Naila Tabassum” was exhibited as Exh-P.6. Certified copy of‬‬
‫‪the prior suit was also exhibited as Exh-D.2. In the said FIR, the‬‬
‫‪plaintiff/respondent narrated the following story:‬‬

‫"زگارش ےہ ہک ںیم امڈل اکولین ملہج یک راہیشئ و وکسیتن وہں۔ ریما اکی اکمن دعتادی (اسڑےھ ‪6‬‬
‫رمےل) واعق امڈل اکولین ملہج ےہ۔ وج ہک امیتیل اڑاھیئ نیت رکوڑ روےپ ےہ۔ امہ ارپلی ‪2017‬ء ںیم‬
‫دعاتلےسےھجمونسٹالم ہکںیمےن اانپاکمنوظنمرحیسموکرفوتخرکدای ےہاوراعیبہنیھبےلایلےہ۔‬
‫نکیل اب اکمن انم ہن رکوا ریہ ےہ۔ ونسٹ ےنلم رپ ںیم رپاشین وہ یئگ اور اےنپ زعزی رخم زہشاد ےس راہطب‬
‫ایک۔ رخم زہشادریمے رھگ آایگ اوررخم زہشاد ےن اےنپ دوتس ریشاز یلع وک یھبالبای اورارطسح ھجمےس‬
‫دعایتلاکروایئےکےیلاتخمرانہمرحتریرکواایل۔"‬

‫‪However, when the plaintiff instituted the prior suit (Exh-D.2), she‬‬
‫‪categorically stated as under:‬‬

‫" ہی ہک دماع ہیلع ربمن ‪ 1‬ےن اعدی دقمہم ابز وظنمر حیسم )‪ (Professional Litigant‬ےس اسز ابز‬
‫دوعے ونعبان وظنمر انبم انہلئ مسبت وسل وکرٹ ملہج ‪ 2017‬ںیم دارئ رکواای۔ دمہیع‬
‫ٰ‬ ‫رکےت وہےئ اکی‬
‫دوعےذتمرکہےکونسٹدمہیعےکرھگواہعقامڈلاکولینآےئوتدمہیع‬
‫ٰ‬ ‫اسوتقاپاتسکنآیئوہیئیھت۔‬
‫ےناےنپ‪cousin‬ےکےٹیبرخمزہشادودلدمحمااحسقاسنککچاخہصملہجےکاسھتابتیکوترخمزہشاد‬
‫ذموکر ےن دمہیع وک اتبای۔ ہک دماعہیلع ربمن ‪ 1‬ااکس دوتس اور اجےنن واال ےہ۔ دمہیع اےس دقمہم یک ریپوی‬
‫ےکےئلاتخمرانہمدےدے۔دمہیعرپدہنیشن۔امیبراوررمعردیسہوعرتےہ۔رہچکیےکاعمالمتوکہن‬
‫یتھجمس یھت۔ دمہیع ےن رخم زہشاد ذموکر ےک ےنہک رپ دماع ہیلع ربمن ‪ 1‬وک دقمہمیک ریپوی ےک ےئل اتخمرانہم‬
‫دے دای۔ دمہیع اردو ڑپانھ۔ انھکل ہن اجیتن ےہ۔ اتخمر انہم یک ابعرت رخم زہشاد ذموکر اور دماعہیلع ربمن ‪1‬‬
C.R. No.103/D/2022 9

‫ےن ایتر رکوایئ۔ ابعرت دمہیع وک ڑپھ رک انسیئ اور اھجمسیئ ہن یئگ۔ اتخمر انہم اعم ذتمرکہ بس ررٹسجار‬
‫ ےن وظنمر حیسم ےک اسھت اسز ابز رکےت وہےئ اکی یلعج‬1 ‫آسف ملہج ںیم ررٹسج رکوا دای۔ دماعہیلع ربمن‬
‫دوعےدارئرکواایاھت۔احالہکندمہیعوظنمرحیسم‬
ٰ ‫وبسگہنیبموطررپارقارانہمایتررکوارکدمہیعےکالخف‬
‫وکہناجیتنےہاورہنیہدمہیعےناےکساسھتیسکمسقاکوکیئارقارانہمایکاھت۔رخمزہشاداوردماعہیلعربمن‬
‫ الھک روےپ)ےل رک وظنمرحیسم‬5( ‫ روےپ‬500000/- ‫ ےن دمہیعوک کیلب لیم رک ےکدمہیعےس غلبم‬1
‫ئ‬
‫دوعےذتمرکہوظنمر‬
ٰ ‫ وکرحتریرکےکدای۔‬25.5.2017‫انیمصخشوکدی۔سجےنایبنیفلح ومرہخ‬
"‫حیسمےنواسپےلایل۔‬

(Emphasis supplied)

From perusal of the above quoted passage from the FIR as well as the
plaint of the prior suit when put in juxtaposition with the plaint of the
declaratory suit, it is abundantly clear that there is a disconnect in stance
of the plaintiff/respondent inasmuch as, in the prior suit, she clearly
alleged act of blackmailing on part of the defendant/attorney as well
as her own nephew, namely, Khurram Shahzad and subsequently, in
the declaratory as well as recovery suits, produced said Khurram
Shahzad as her own witness in support of her contentions without
rendering any plausible explanation as to why she decided not to
prosecute rather produce him as her own witness when Khurram
Shahzad was allegedly instrumental in introducing the
defendant/attorney to the plaintiff/respondent. Moreover, it is
astonishing that on the one hand, she alleges in the prior suit that
Khurram Shahzad is a blackmailer and has acted in connivance with the
defendant/attorney to her detriment and on the other hand, she has
produced said Khurram Shahzad as her own witness and relied upon
his testimony in the proceedings conducted in the suits. This conduct of
the plaintiff/respondent is quite improbable to be believed upon. Her
stance that she is unable to understand Urdu language also falls on the
ground when she herself stated in the prior suit that the composition
(‫ )عبارت‬of the GPA was written/prepared by the said Khurram Shahzad
who never stated in his statement that no power to sell the suit property
was conferred upon the defendant/attorney and some fraud was
C.R. No.103/D/2022 10

committed in connivance with the official respondents. In fact, in plaint

of the declaratory suit, there is just a single line to the effect that the
GPA was executed in connivance with the official respondents,
however, in the deposition, no such facts were asserted. Even due
execution and registration process was not seriously challenged by the
plaintiff/respondent and hence, it fortifies presumption of due
execution of the GPA and truth attached thereto. Even otherwise, if the
GPA is carefully perused, the same discloses that it was executed by
the plaintiff/respondent which she admitted and based upon the GPA,
after about more than one year and seven months of its execution, the
defendant/attorney alienated the suit property in favour of the
defendants/purchasers much prior to the revocation of the GPA by the
plaintiff/respondent and as such, the GPA has already been acted upon
by her attorney before its revocation. Therefore, the plaintiff/
respondent, being the principal, is bound by the act of the
defendant/attorney.

13. At this juncture, it is worth mentioning that a power of attorney

is written authorization, whereby “the principal” authorizes the agent
to do the acts specified therein on behalf of “the principal” which, when
executed, will be binding on “the principal” as if done by “the
principal” himself. Primary purpose of instrument of such nature is to
assign authority of “the principal” to another person as his agent. In this
regard, case reported as “Imam Din and 4 others v. Bashir Ahmed and
10 others” (PLD 2005 Supreme Court 418) is referred wherein, the
Hon’ble Supreme Court of Pakistan, inter alia, has held as under:

“7. …The power of attorney is a written authorization by

virtue of which the principal assigns to a person as his
agent and confers upon him the authority to perform
specified acts on his behalf and thus primary purpose of
instrument of this nature is to assign the authority of the
principal to another person as his agent. The main object
of such type of agency is that the agent has to act in the
name of principal and the principal also purports to rectify
C.R. No.103/D/2022 11

all the acts and deeds of his agent done by him under the
authority conferred through the instrument.”

14. In the instant case, since the factum of execution of the GPA is
admitted, the plaintiff/respondent, as the principal thereunder, cannot
absolve herself from the acts done by the attorney/defendant on her
behalf under the GPA. It has been the stance of the plaintiff/respondent
that she had not authorized the defendant/attorney to execute the
impugned sale deed and the GPA was only executed for a specific
purpose of contesting a case, which had been instituted at behest of the
defendant/attorney by one Manzoor Masih. The plaintiff/respondent
came to the Court with a specific stance and hence, was required to
prove the case independently and cannot bank upon the weakness of the
statement of the defendants/purchasers. The defendants/purchasers
cannot be called upon to prove the negative thing that the GPA was not
fraudulent rather the plaintiff/respondent was obligated to prove the
same with positive evidence. In addition, needless to mention that as
per Article 129 of Qanun-e-Shahdat Order, 1984 (hereinafter referred
to as “the QSO”), the Court has to draw a presumption regarding
execution and authenticity of a registered instrument such as the GPA.
The plaintiff/respondent admitted that she executed the GPA in favour
of the defendant/attorney but claimed that fraud was played on her. The
plaintiff/respondent while being cross-examined categorically accused
the defendant/attorney (Sheraz) by stating as under:

‫’’ریمے وگااہن ےن اتخمر انہم ہن ڑپاھےہ۔۔۔۔۔۔۔اتخمر انہماک ااٹشمںیم ےن اجری ہن رکواای ےہوج‬
‫ھچکایک ےہریشازیلعےنیہ ایکےہ۔۔۔۔۔۔۔۔۔درتسےہہک ریشازیلعےکالعوہہیقب ارفادںیم‬
"‫ےسیسکوکرفقیدقمہمہنانبایےہ۔‬

(Emphasis supplied)

The collusion in obtaining the GPA has not been attributed to the
defendants/purchasers let alone that the same was proved. Moreover,
even if it is assumed that she had been defrauded by her attorney, the
C.R. No.103/D/2022 12

consequences of the fraud cannot be shifted to the defendants/

purchasers who purchased the suit property on the basis of the GPA,
the execution whereof is admitted by the plaintiff/respondent herself. If
the consequences of a fraud are ever to be faced by someone, it ought
to be the one who made the commission of such fraud possible and not
the one who has no role to play with the commission of such a fraud.
Therefore, the defendants/respondents are not to be blamed for.

15. It is also worth mentioning that the plaintiff/respondent denied

the contents of the GPA on the ground that she is an overseas Pakistani
settled in Denmark for the last more than 40 years and is a simple
housewife having no awareness of the legal formalities in Pakistan. At
this juncture, it is imperative for this Court to address the second core
issue as to whether the plaintiff/respondent was entitled to plead the
defence that she is an elderly and simple lady entitled to protection that
law envisages for a pardanashin lady. Needless to mention that the
burden could have been shifted to the defendants/purchasers, being
beneficiaries under the impugned sale deed executed by an attorney, to
prove the sale transaction and payment made thereunder only if the
plaintiff/respondent had measured up to the status of a pardanashin
lady unable to transact her worldly affairs on account of her seclusion
and privacy from socio-economic conditions of the outer world. In case
reported as “Muhammad Naeem Khan & another v. Muqadas Khan
(decd) thr. LRs & another” (PLD 2022 SC 99), the Hon’ble Supreme
Court of Pakistan held as under:

“8. The denotation and import of phrase “Pardanashin

lady” depicts a woman who heeded stringent and
unyielding canons and ethics of seclusion and privacy and
according to the customs may object to show up in a public
office or have no communication except behind the screen
with any male person save as near relatives……………If
authenticity or trueness of a transaction entered into by a
pardanashin lady is disputed or claimed to have been
secured on the basis of fraud or misrepresentation, then
onus would lie on the beneficiary of the transaction to
C.R. No.103/D/2022 13

prove his good faith and the court has to consider whether
it was done with freewill or under duress and has to assess
further for an affirmative proof whether the said document
was read over to the pardanashin or illiterate lady in her
native language for her proper understanding.”

The Hon’ble Supreme Court further held as under:

“9. The obvious underlying principle is to protect and

save a weak and helpless woman from danger and risk of
an unfair deal, thenceforth, it is to be ensured by the court
in tandem, whether the alleged deal or transaction was
effected by her free will or through coercion/duress or
emotional blackmailing or whether it was simply aimed to
deprive her right or interest in the property or divest her
due share in the inheritance by male members of her
family. The survey and analysis of some judicial
precedents rendered by our courts and pronouncement of
courts from Indian jurisdiction have in fact woven a cloak
of protection for pardanashin ladies, who because of their
ignorance, inexperience of business matters and social
conditions are not able to understand the nature of
business transactions…………………. The question is
whether a lady is pardanashin or not is always a question
of fact which should be specifically pleaded and proved
by some cogent evidence and is not to be used as weapon
or shield to defend the lawsuit under the garb of this plea
at original or appellate stage.”
(Emphasis supplied)

Keeping in sight the above quoted principles laid down by the Hon’ble
Supreme Court, the assertion of the plaintiff/respondent seems to be not
plausible inasmuch as it sounds quite unbelievable and defies common
sense and logic that a lady who is well settled in Europe for the last 40
years and managing the suit property on her own, prior to execution of
the GPA, by frequently travelling back to Pakistan for this purpose, and
signing the documents in English, would be too naive to not even ask
for the contents of a document to be read over to her that admittedly
pertains to the suit property and will not make an enquiry into state of
affairs regarding the suit property particularly when, as per her own
contentions, the purpose to defend the suit titled “Manzoor Masih v.
C.R. No.103/D/2022 14

Naila Tabassum” had been completed for which the GPA was executed
and the GPA was not revoked immediately thereafter. It can be further
noted that even the alleged execution of the GPA for the purpose of
defending the suit titled as “Manzoor Masih v. Naila Tabassum”, as per
her own assertion was on the asking of Khurram Shahzad without the
advice and/or association of her immediate male family members. This
in itself belies her claim of being a pardanashin lady. Similarly, in
terms of Section 60 (2) of the Registration Act, 1908 (hereinafter
referred to as “the Act 1908”), certificate of registration shall be
admissible for proving that the document has been registered in the
manner required under law and is an extension of mandate as provided
under Article 129 (e) of the QSO that officials acts are presumed to
have been performed in regular and legitimate manner. It is also
testament to the fact that endorsement as referred in Section 59 of the
Act, 1908 has occurred in the manner in which it has been mentioned.
Hence, presumption of genuineness is attached to the endorsement
made by office of the Sub-Registrar concerned. It is imperative to note
that the plaintiff/respondent, both in her plaint and also in evidence, did
not speak anything as to what had happened in the office of the Sub-
Registrar more particularly when she was accompanied by the person
of her trust, namely, Khurram Shahzad. There is a complete silence as
to the proceedings before the Sub-Registrar on part of the
plaintiff/respondent, which can prove that any fraud was committed
through connivance of the official respondents.

16. There is also no evidence or even averment to the effect that the
defendants/purchasers through the defendant/attorney had induced the
plaintiff/respondent to sign the GPA and what has been deposed by the
plaintiff/respondent is that she executed the GPA as proposed by her
close relative, Khurram Shahzad whom she is not accusing of any
forgery in the declaratory suit, out of which the present proceedings
have emanated although in the prior suit she labelled him as a
blackmailer. There is no plausible explanation regarding the said
C.R. No.103/D/2022 15

somersault made by the plaintiff/respondent. Moreover, it would be a

very natural reaction for a lady who asserts herself to be not knowing
much about the worldly affairs by communicating it to her
husband/brother/son or other male members of the family that her
property has been subjected to litigation but astonishingly, in the instant
case, she chose Khurram Shahzad for consultation where after accused
him with act of blackmailing but later on produced him as her own
witness. All these attending circumstances go on to show that if at all
there is a fraud played by anyone, the same was by the
defendant/attorney with the support of Khurram Shahzad and not by
defendants/purchasers. Furthermore, the plaintiff/respondent herself
brought on record a report from the Office of District Police Officer,
Jhelum (Exh.P5), perusal whereof reveals that her own witness
Khurram Shahzad submitted an affidavit clearly acknowledging that
the suit property was sold and Rs.6,000,000/- received by the
defendant/attorney as consideration was not paid to the
plaintiff/respondent. Khurram Shahzad deposed in similar terms while
appearing as witness (PW-2). There is nothing on record to rebut the
same. This fact alone indicates that the sale in favour of the
defendants/purchasers is not result of any fraud on part of the
defendants/purchasers, which also contradicts the assertion of the
plaintiff/respondent that the transaction underlying the impugned sale
deed is without consideration.

17. The above discussion clearly establishes that the learned Trial
Court as well as the learned Appellate Court below have given undue
weightage to the fact that the defendants/purchasers could not prove the
payment of sale consideration when they failed to produce Arshad
Khalil, Tehsildar and Abdul Aziz, Lumberdar in whose presence the
defendants/purchasers claim to have paid the money inasmuch as
plaintiff/respondent’s own witness, namely, Khurram Shahzad
categorically acknowledged in his affidavit as per report brought on
record as Exh-P5 that the suit property was sold and Rs.6,000,000/-
C.R. No.103/D/2022 16

were lying with defendant/attorney. It is imperative to note that the

plaintiff/respondent also asserted that the value of the suit property
was around twenty five to thirty million whereas the sale was effected
for Rs.7,685,600/-, without putting forth any evidence that the market
value of the suit property was around rupees twenty five to thirty
million at the relevant time and it was sold on much lesser price
which, had it been established and proved, could have been the only
point on the basis of which it could have been held that the
defendants/purchasers purchased the suit property without good
faith.

18. It is settled principle of law that when a plaintiff comes forward

with the averment regarding fraud, it must be specifically pleaded and
proved beyond all reasonable doubts. On analysis of the above facts and
the law, in this case, in the plaint itself, the plaintiff/respondent has only
asserted fraud played by the defendant/attorney when he was
introduced to the former by her nephew Khurram Shahzad and no
details as to the role of the defendants/purchasers has been mentioned.
All these factors would indicate that there was no element of fraud
which has been proved by the plaintiff/respondent as against the
defendants/purchasers and when she admits execution of the GPA she
cannot seek to set aside the impugned sale deed registered on the basis
of the GPA pleading innocence and ignorance about the contents of the
GPA, which admittedly were prepared by her own witness. Here it is
also imperative to note that no relation or connivance has been
established between the defendant/attorney and the defendants/
purchasers regarding execution of the GPA in favour of the
defendant/attorney. It is also not denied that on the strength of the GPA,
the suit property has been sold to the defendants/purchasers. In
addition, the evidence has to be read as a whole to determine its
preponderance and the minor contradictions in the statements of the
defendants/purchasers or any other weakness thereof cannot be made
basis to deprive them from their lawful rights accrued in their favour
C.R. No.103/D/2022 17

and it was the plaintiff/respondent who was required to stand on her

own legs and prove her case.

19. In the light of the above discussion, this Court finds that there is
error on the part of learned Trial Court as well as the Appellate Court
below in assessing pleadings, oral and documentary evidence available
on record and decreeing the suits of the plaintiff/respondent against the
defendants/purchasers and it is unjustifiable and discordant with the
conscience of justice on part of the learned Courts below to make the
defendants/purchasers suffer the consequence of fraud, if any, in which
they had no contributory role to play and it is the plaintiff/respondent
who contributed, out of her innocence, negligence or otherwise, to the
commission thereof.

20. Having opined that the GPA is an admitted document and was
the basis of the sale of the suit property by the defendant/attorney to the
defendants/purchasers, the plaintiff/ respondent cannot back out as she
has failed to discharge her burden that the GPA was result of any fraud
practiced by the defendants/purchasers, this Court takes up the
controversy forming subject matter of the recovery suit. The judgments
in the recovery suit are at variance. Issue No.4 was the relevant issue in
this regard and onus thereof was on the plaintiff/respondent. In a very
apt manner, the learned Trial Court decided the issue in the following
terms:

“19. Onus to prove this issue was placed upon the

plaintiff. Plaintiff alleged that the household articles as per
list annexed with the plaint are in illegal custody of
defendants. In evidence plaintiff as PW.1 stated that her
household articles as per Exh.P4 are in possession of
defendants No.3 to 5. During cross-examination PW.1
denied from the suggestion that the household articles of
defendants No.4 & 5 are lying in the house. PW.1 admitted
that she lodged FIR regarding household articles and
mentioned the value of articles more than Rs.10,00,000/-.
I would like to reproduce the relevant portion of cross-
examination of PW.1 as under:-
C.R. No.103/D/2022 18

‫الھکےس‬10‫درتسےہہکںیمےناسامنیکابتبافیآیئآررکوایئیھتںیمےناسافیآیئآرںیم‬
‫زادئامتیلوھکلایئےہ۔‬

20. …

21. Plaintiff alleged that household articles as per

Exh.P4 were lying in her house and produced the list. The
list i.e. Exh.P4 shows that the two portion of said house
shows the ground floor consists upon two rooms, one
kitchen and courtyard while ground floor consist upon two
room, one kitchen and one store room. Plaintiff mentioned
same tape recorder in room No.1 & 2 of ground floor.
Similarly, most of articles are written two times as on both
stories. It is mentioned that the unstitch and stitch cloths,
coat, jewellery, shaals, jacket, perfume are lying in room
No.2 and similarly, same sweaters, unstitch clothes, shoes,
purse also lying in room No.3. It is mentioned in Exh.P4,
the washing machine and spinner were lying in the
courtyard alongwith chairs, tables, ups. As per Exh.P4, on
second floor of the house, same articles mentioned.
Admittedly plaintiff used to live abroad and visited
Pakistan after one or two years but there is nothing on the
record to show that the whole articles as per Exh.P4 were
in custody of plaintiff. Plaintiff is residing abroad but left
the washing machine and other articles in courtyard
without care. Moreover, admittedly she was alone and
these huge number of articles could not in use of alone
person. Furthermore, there is nothing on the record to show
that these articles were owned by plaintiff because she
never produced any document of purchasing these articles.
Plaintiff admitted that in FIR, she had written the value of
articles as Rs.10,00,000/- which is self-contradiction. In
these circumstances, plaintiff has badly failed to prove this
issue, hence same is decided against the plaintiff.”

(Emphasis supplied)

With the above analysis of the learned Trial Court in sight, the learned
Appellate Court below has taken a different decision, merely, on the
ground that on behalf of the defendants/purchasers, defendant No.1,
namely, Muhammad Umair Pasha (DW.2) appeared and in his cross-
examination admitted that prior to execution of the impugned sale deed
in their favour, an agreement to sell was signed, which though was
C.R. No.103/D/2022 19

never produced before the Court by either side but a copy was presented
during the investigation carried out by the police officials and the said
agreement reads that the suit property was sold with the household
articles and this aspect alone has persuaded the learned Appellate Court
below to upset the findings of the learned Trial Court. No effort was
made to bring on record the copy of said agreement to sell as secondary
evidence, if the original was not available to establish that any cutting
was made therein while adding the words with furniture (‫ )بمع فرنیچر‬by
the defendant/attorney. Moreover, learned Appellate Court below
ignored that the plaintiff/respondent while appearing as PW.1 clearly
acknowledged the sale but stated that she did not sell the household
articles to the defendants/purchasers. The plaintiff/respondent as PW-1
stated as under:

‫ امہ‬4/5 ‫ اسل ےس واتیفق ےہ۔۔۔۔۔۔۔۔۔۔۔ںیم اتخمر انہم دےنی ےک‬8/10 ‫" ۔ریشاز دماعہیلع ےس‬
‫دوعی دارئ رک ےک واسپ ےل ایل‬
ٰ ‫دوعی ذہا ےس لبق اکی‬
ٰ ‫اپاتسکن آیئ یھت۔ درتس ےہ ہک‬
‫ےندوھہکرفاڈیکاینبدرپاکمندتموعہیرخدیایکےہ۔ریمیرظنںیم‬4-5‫اھت۔۔۔۔۔۔۔۔۔۔۔دماعمہیلع‬
4-5‫ ہنںیہ۔درتسےہہکاکمندتموعہیدماعمہیلع‬Bonafide purchaser 4-5‫دماعمہیلع‬
‫ وس ںیم رخدی ایک ےہ ازوخد اہک ےھجم ملع ہن‬6 ‫ زہار‬85 ‫ الھک‬76 ‫ ےس ابوعلض‬3 ‫ےن دماعہیلع ربمن‬
‫اتخمرانہم اکوکیئوگاہںیمےنشیپہنایکےہ ازوخداہکہکاتخمرانہمےک‬exP2‫ےہ۔۔۔۔۔۔درتسےہہک‬
‫وگاہریمےہنںیہ۔۔۔۔۔۔۔۔۔۔درتسےہہکںیماجدیئاددتموعہییکابتب ینتجدروخاںیتسدیںیہ‬
‫وہاردوںیمںیہ۔۔۔۔۔۔۔۔۔اتخمرانہمےکوتقریمےرمہاہرخمزہشادریشازیلع۔راہجاعمص۔ںیماور‬
‘‘‫زبیونازوموجدےھت۔‬

(Emphasis supplied)

Moreover, the statement of DW.1 (the defendant/attorney) that four

chairs, one table, one sofa and one bed were lying in the suit property
has been mis-read to decree the recovery suit against the
defendants/purchasers inasmuch as he categorically stated that he sold
the suit property without the household articles. The defendant/attorney
stated as under:

‫اسولںےساجاتنوہں۔۔۔۔۔۔۔۔ہیدرتسےھہکاکیدودہعفریمااھبیئ‬08/09‫’’ںیمدمہیعوکرقتًابی‬
‫) الھک روےپ ادا رک ےک دمہیع ےس ہی‬60( ‫’’دمہیع‘‘ وک اریوپرٹ ےس رکیل آای اھت۔۔۔۔۔۔۔۔۔۔ںیم ےن‬
C.R. No.103/D/2022 20

‫ احلص ایک‬ExP2 ‫) الھک روےپ اکمن یک تمیق ادا رکےک‬60( ‫احلص ایک ےھ۔ ںیم ےن ہی‬ExP2
‫) الھک روےپ دےنی اک وکیئ ’’ذرک‘‘ ہن‬60( ‫ ںیم‬ExP2 ‫اھت۔۔۔۔۔۔۔۔ ہی درتس ےھ ہک‬
‫) الھک روےپ ادا‬60( ‫دوعی ںیم دمہیع وک غلبم‬
ٰ ‫ےھ۔۔۔۔۔۔۔۔۔ہی درتس ےھ ہک ںیم ےن اےنپ وجاب‬
‫رکےن ےک ابرے اترخی۔وتق۔ہگج یک ابتب رحتری ہن ایک ےھ۔۔۔۔۔۔۔۔۔۔ہی درتس ےھ ہک اکمن‬
‫ ےس غلبم رتہھچ‬4،5 ‫ ےک وحاےل رک دای اھت ںیم ےن دماعہیلع‬5،4 ‫ دماعمہیلع‬ExP3 ‫دموعہی ںیم ےن ذبرہعی‬
‫الھک ۔اچپیس ھزار ۔ھچ وسروےپووصل رکےک اکمن دتموعہیرفوتخایکاھت۔ ہیادایگیئںیم ےناس دن‬
‫ووصل یک یھت سج دن ررٹسجی رکوایئ یھت۔ ںیم ےن ’’ہی رمق‘‘ لیصحت آسف ںیم ’’روربو‘‘ انجب‬
‫ئ‬
‫دلیصحتار اصبح ووصل کئیے ےھت۔۔۔۔۔۔۔ہی یھب درتس ےھ ہک دمہیع ےن ہن یہ ےھجم اور ہن یہ‬
‘‘‫وکرھگولیاسامنرفوتخہنایکاھت۔‬05،04‫دماعمہیلعربمنات‬

(Emphasis supplied)

The statement of the plaintiff/respondent as PW-1 during the cross-

examination reveals that she came to Pakistan within 04/05 months
after execution of the GPA and there is no explanation as to why she
had not sought revocation of the GPA if the issue with Manzoor Masih
was settled by that time. It is well evident from the above quoted part
of evidence of the plaintiff/respondent that while no association of the
defendants/purchasers was asserted or established with the
plaintiff/respondent or the defendant/attorney, the relationship of the
plaintiff/respondent with defendant/attorney is admitted by both of
them. Similarly, if any articles were present in the suit property and the
same were to be recovered, the said recovery is to be affected from the
defendant/attorney whom the plaintiff/respondent herself allowed to
deal with the same by executing the GPA. The learned Appellate Court
below has erred in not appreciating that assertion of a particular fact,
albeit with contradictions, is one thing and proving the same is another
and the plaintiff/respondent in the instant case not only contradicted
regarding the particulars of the household articles and the value thereof
but also failed to put forth any evidence in support of her contentions.
It is reiterated that the minor discrepancies or weaknesses in the
statements/case of the defendants in general and the defendants/
purchasers in particular cannot be made basis for decreeing the
C.R. No.103/D/2022 21

recovery suit as prayed for by the plaintiff/respondent. Even otherwise,

when the factum of execution of the GPA is admitted and sale by the
defendant/attorney has been effected on the basis of the GPA, the
defendant/attorney is to be considered as trustee of the household
articles of the plaintiff/respondent, if any, lying in the suit property and
issue of recovery of the said articles from the purchasers/defendants
does not arise. Needless to mention that the recovery suit was also not
maintainable, in terms of Order II, Rule 2, CPC inasmuch as while
instituting the prior suit as well as the declaratory suit, the
plaintiff/respondent failed to raise claim of recovery of the household
articles purportedly lying in the suit property.

21. In the light of above discussion, this Court is of the opinion that
there is also no case of the plaintiff/respondent against the
defendants/purchasers for recovery of the household articles since they
have dealt with the defendant/attorney duly appointed by the
plaintiff/respondent herself and purchased the suit property through the
impugned sale deed which is a registered document wherein there is no
mentioning of the household articles and hence, they were not obligated
to prove that there was absence of mala fide on their part and they acted
in good faith as the registered document in their favour has presumption
of truth attached to it and a copy of mere agreement to sell which was
not brought on record cannot be made basis of decree of the recovery
suit against the purchasers/defendants.

22. Having opined that the defendants/purchasers have no role to

play in any collusion/fraud in relation to the execution of the GPA in
favour of the defendant/attorney and they purchased the suit property
through a registered instrument to which presumption of truth is
attached, it is pertinent to mention that the defendant/attorney took the
plea that he had purchased the suit property for consideration as a result
of which the plaintiff/respondent had executed the GPA. Thus, it
becomes amply clear that the role of the defendant/attorney was most
C.R. No.103/D/2022 22

relevant who claims that he purchased the suit property and as a result
thereof, the GPA was executed in his favour. However, it has not been
brought on record on part of the defendant/attorney that he actually paid
Rs.6,000,000/- as sale price of the suit property to the plaintiff/
respondent either before or after sale of the suit property to the
defendants/purchasers. Similarly, he could not establish as to how the
household articles were dealt with by him when he has not sold the suit
property along with the said articles to the defendants/purchasers. Since
the defence of the defendant/attorney does not confine to the execution
of the GPA by the plaintiff/respondent in his favour to merely deal with
the suit property rather he alleges that he had purchased the suit
property for consideration on account of which the GPA had been
executed, therefore, it falls upon him to prove that he had paid the due
consideration to the plaintiff/respondent. The defendants/purchasers
are required to be protected being transferee of the suit property for
consideration duly received by the defendant/attorney under the GPA
on behalf of the Principal (the plaintiff/respondent), whereas the
defendant/attorney was required to prove his transaction of sale as it is
he who is beneficiary of both the transactions, i.e., purported purchase
from the plaintiff/respondent along with execution of the GPA and the
sale in favour of the defendants/purchasers as he also asserts and admits
both the transactions but the case has not been examined by the learned
Courts below from this angle at all.

23. For what has been discussed above, the Civil Revisions
are allowed, the impugned judgments and decrees passed by the
learned Courts below in the declaratory suit as well as the impugned
judgment by the Appellate Court below in the recovery suit are set aside
and the suits of the plaintiff/respondent are dismissed. However, before
parting with, it is observed that the defendant/attorney has not been able
to prove his stance that the GPA admittedly executed in his favour by
the plaintiff/respondent was, in-fact for consideration. Similarly, the
defendant/attorney has also not been able to render any explanation
C.R. No.103/D/2022 23

regarding the manner in which he dealt with the furniture and fixtures
lying in the suit property when admittedly, he has not sold the suit
property to the defendants/purchasers along with furniture and fixtures.
Therefore, the plaintiff/respondent is at liberty to initiate appropriate
proceedings against the defendant/attorney for redressal of her
grievance, in accordance with law, on account of misuse of the GPA, if
any and for recovery of sale consideration as well as the household
articles, and the observations of this Court in this judgment shall
neither affect nor influence the proceedings, if and when initiated by
the plaintiff/respondent, against the defendant/attorney, and the
decision to be rendered therein.

(ANWAAR HUSSAIN)
Judge

Approved for reporting.

Judge

Announced in open court on 16.12.2022.

Judge
Akram
 Stereo. H C J D A 38.
JUDGMENT SHEET
IN THE LAHORE HIGH COURT
RAWALPINDI BENCH RAWALPINDI
JUDICIAL DEPARTMENT

Civil Revision No.104/D/2022

Muhammad Umair Pasha, etc. Versus Naila Tabassum etc.

JUDGMENT
Date of Hearing: 08.11.2022.
Petitioners by: M/s Malik Shahid Mehmood
Kandwal, Advocate and Malik
Muhammad Fiaz Kandwal, Advocate.
Respondent No. 1 by: Mr. Faisal Kiyani, Advocate
Respondent No. 2 by Ch. Adeel Fraz, Advocate.

Anwaar Hussain, J. For the reasons recorded in my judgment of

even date in Civil Revision No.103/D/2022, this Civil Revision is
allowed, the impugned judgment and decree passed by the learned
Appellate Court below is set aside and the suit of respondent No.1 is
dismissed.

(ANWAAR HUSSAIN)
Judge

Akram
 Stereo. H C J D A 38.
JUDGMENT SHEET
IN THE LAHORE HIGH COURT
RAWALPINDI BENCH RAWALPINDI
JUDICIAL DEPARTMENT

Civil Revision No.212/D/2022

Sheraz Ali Versus Additional District Judge etc.

JUDGMENT
Date of Hearing: 08.11.2022.
Petitioner by: Ch. Adeel Fraz, Advocate.
Respondent No. 2 by: Mr. Faisal Kiyani, Advocate
Respondents No.3 & M/s Malik Shahid Mehmood
4 by: Kandwal, Advocate and Malik
Muhammad Fiaz Kandwal, Advocate.

Anwaar Hussain, J. For the reasons recorded in my judgment of

even date in Civil Revision No.103/D/2022, this Civil Revision is
allowed, the impugned judgment and decree passed by the learned
Appellate Court below is set aside and the suit of respondent No.2 is
dismissed. However, before parting with, it is observed that the
petitioner has not been able to prove his stance that the General Power
of Attorney admittedly executed in his favour by respondent No.2 was,
in-fact for consideration. Similarly, the petitioner has also not been able
to render any explanation regarding the manner in which he dealt with
the furniture and fixtures lying in the suit property when admittedly, he
has not sold the suit property to respondents No.3 & 4 along with
furniture and fixtures. Therefore, respondent No.2 is at liberty to initiate
appropriate proceedings against the petitioner for redressal of her
grievance, in accordance with law, on account of misuse of the General
Power of Attorney, if any and for recovery of sale consideration as well
as the household articles, and the observations of this Court in this
judgment shall neither affect nor influence the proceedings, if and when
C.R. No.212/D/2022 2

initiated by respondent No.2, against the petitioner, and the decision to

be rendered therein.

(ANWAAR HUSSAIN)
Judge

Akram