Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Civil Appeals Nos. 10-P and 11-P of 1972, decided on 11th February 1975.
(On appeal from the judgment and order of the. Peshawar High Court, Peshawar dated 11-11-1968 in R. .S. A. Nos, 474 and 478 of 1964).
-- Art. 185(3)-Appealable judgment of District Judge not taken in appeal to High Court-Cannot be subjected to challenge in Supreme Court.
---- S. 109(x) and Transfer of Property Act (1 V of 188 2), S. 60-Equity of redemption-Merger and extinction of-Appeal (Civil)-Legal and equitable estates to land vesting in two different persons resulting from distinct transactions removed from each other in point of time-No automatic merger of equity of redemption of land sold with mortgagee rights in land earlier held involved Disability suffered by purchaser of land for failure to appeal against District Judge's judgment to High Court- No bar to appeal by his father as mortgagee of land.
What is alleged to have been sold to D inequity of redemption of that land purporting to be on behalf of the plaintiffs. These transactions stand or an independent footing, though concerning the same land. On no discoverable principle, can there be an automatic merger of equity of re-demption of the land sold to D with the mortgagee rights in the land earlier held by his father. The doctrine of merger of equity of redemption springs from the fact that when the entire legal and equitable estates are united in one and the same person, ordinarily it could be of no use to the owner to preserve the charge on the estate of which he has become the owner. In the instant case, the legal and the equitable estates in the land in dispute vest in two different persons as a result distinct transactions removed from each other in point of time. Even section 60 of the Transfer of Property Act, 1882 does not envisage the extinction of the equity redemption by operation of law except when the mortgagee acquires the equity of redemption by inheritance therefore, any disability suffered by D by reason of his failure to appeal to the High Court against the judgment of the Additional District Judge will not defeat the appeal by his father, as mortgagee of the land.
--- Power conferred by power of attorney scrupulously avoiding use of words like< --[if gte vml 1]>
or some other words to that effect-Empowering words to be con strued strictly, in circumstances, to confine them to merely signing and authenticating instruments of sale or mortgage on plaintiff's behalf-Power to sign a document on behalf of another-Does not necessarily imply power to enter into transactions-Power to enter into transactions being a larger power, express words required to give effect to such intention. The following crucial words occurred in the deed:
< --[if gte vml 1]>
Counsel for appellant submitted, that these words by necessary implica tion conferred upon the four attorneys, the power of disposition of property on behalf of the plaintiffs. It is however, important to note that the power conferred scrupulously avoid the use of the words like< --[if gte vml 1]>
-- S. 3--Revenue records, entries in - Probative value Extent of, to be attached to entries in jamabandis-Dependent upon facts of each case and not absolute-Lower Courts holding presumption of correctness of jamabandis to be rebutted on balance of evidence produced, finding, held, could not be questioned.
Heirs of Prince Muhammad Saleem v. The Attorney General of Palestine AIR 1941 PC 99 ref.
Abdur Rashid Qazi, Advocate Supreme Court instructed by S. Safdar Hussain, Advocate-on-Record for Appellants (in both appeals .
Mufti. Muhammad 1drees, Advocate Supreme Court instructed by Amirzada, Advocate-on-Record for Respondents 1 and 2.
Respondent No. 3 : Ex parte.
Date of hearing : 11th February 1975.
This judgment deals with two Civil Appeals by Special Leave namely, Nos. and 11-P of 1972, arising out of two declaratory Suits Nos. 71/1 and 72/1 of 1962 instituted in the Court of Additional Civil Judge, Hazara, by two brothers Muhammad Aslam Khan and Muhammad Afzal Khan, (respondents in both the appeals and herein after called the plaintiffs). In Suit No. 71/1 which has culminated in Civil Appeal No. l t-P, the plaintiffs sought a declaration that land measuring 37 kanals 9 marlas bearing Khasras Nos. 69 to 75 situate in village Jallalpura Mangal, Tehsil Abbottabad, was under a mortgage with Inayatullah defend ant respondent for a sum of Rs. 1,000 only as per mutation No. 11 attested on 6-8-1949 and was redeemable by the plaintiffs on the payment of the same amount and that subsequent mutation attested at the instance of Hazrat Shah son of Sammunder Shah respondent No. 3 purporting to act on behalf of the plaintiffs were not binding upon theta. Dost Muhammad son of Inayatullah was impleaded as a defendant because he claimed to have purchased equity of redemption in the 37 kanals 9 marlas from the plaintiffs through their attorney Hazrat Shah, respondent No. 3. Dost Muhammad is respondent No. 2 in this appeal.
In Suit No. 72/1, which has culminated in Civil Appeal No. 10 of 1972, the plaintiffs sought a declaration of their title in 4kanals 16 marlas being 1/2 share of Khasra Nos.60 to 68 situate in village Jalalpura Mangal, which purported to have been sold on their behalf by Hazrat Shah aforesaid to Inayatullah for R s. 1,100 vide mutation No. 101 attested on 21-1-1951.
The essential facts bearing on the two suits are these. The plaintiffs, it appears, were owners of extensive lands in a number of villages in Tehsil Abbottabad. On 2-2-1950, they executed a registered general power of attorney (Exh. P. A.) in favour of 9 persons including Hazrat Shah son of Sammundar Shah respondent, empowering each of them to act jointly and severally on behalf of two plaintiffs to manage their lands, to prosecute or defend any legal proceedings whether in a civil, criminal or revenue Court, to enter into compromise or refer any dispute to which the plaintiffs may be parties. to arbitration etc. and also to authenticate and affirm deeds and other instruments and do all incidental acts with regard thereto.
It appears that Hazrat Shah aforesaid, while purporting to act as general attorney of the two plaintiffs had a mutation for sale of 4 kanals 16 marlas entered at No. 101, and got it attested by the Mutation Officer. In Suit No. 72/1 the plaintiffs repudiated the purported sale on their behalf on the allegation that Hazrat Shah had no authority to enter into any con tract of sale on their behalf, They also denied having received any consideration, through their appointed agent.
In Suit No. 71/1 the plaintiffs admitted the initial mortgage of 37 kanals 9 marlas in favour of Inayatullah for Rs. 1,000 as per mutation No. 11 attested on 6-8-1949. It appears that by another mutation entered at No. 122 also at the instance of Hazrat Shah and attested on 29-1-1951, the initial mortgage on the land for Rs. 1,000 was redeemed. Simultaneously, by another muta tion entered at No. 103 again at the instance of Hazrat Shah, tile same land was mortgaged on behalf of the plaintiffs to Inayatullah for Rs 4.000. By yet another mutation No, 114 attested on 11-1-1952, the equity of redemption in the same lance was sold by Razrat Shah purporting to be on behalf of the two plaintiffs for Rs. 4,100 in favour of Dost Muhammad son of Inayatullah the prior mortgagee. The sale price included the previous mortgage amount alleged to be payable to the vendees' father. Barring mutation No.11 attested on 6-8-1949, the plaintiffs repudiated all subsequent mutations with regard to these 37 kanals 9 marlas on the same allegations in the other suit.
Both the suits were contested by Inayatullah and his son Dost Muhammad Khan appellants herein, oho on the one hand pleaded that they had entered into the impugned transactions in both the suits, directly with the two plaintiffs and had paid the consideration therefore directly to them. On the other hand they further pleaded that Hazrat Shah son of Sammundar Shah had full power of disposition of property by sale, mortgage or otherwise on behalf of the two plaintiffs and acting in exercise of that authority, Hazrat Shah had entered into and acknowledged the various transactions relating to the lands in dispute in both the suits.
The learned trial Judge on the basis of evidence produced in the two suits, came to the conclusion that Hazrat Shah respondent bad Full power of disposition of property whether by sale or mortgage on behalf of the plaintiffs by virtue of the general power of attorney (Exh. P. A.). Accordantly, both the suits were dismissed.
In two separate appeals filed by the two plaintiffs, the judgments and the decrees of the trial Court in both the suits were reversed by the learned District Judge, Hazara. He took the view that on a proper construction of the general power of attorney dated 2-2-1950. Hazrat Shah respondent was given the power to attest and affirm sale-deeds and other legal instruments of disposition of property on behalf of the two plaintiffs but was not giver, himself the power of disposition over the property of the plaintiffs. The learned District Judge, also pointed out that in their written statement, the contesting respondents had definitely pleaded that the impugned transactions were entered into directly with the two plaintiffs to whom the various amounts whether as mortgage money or sale price were directly paid and that the time of these payments, receipts were also, drawn up by one Muhammad Jee. However, neither any such receipts had been produced nor Muhammad Jee examined in proof of payments of the various amounts to the plaintiffs. Accordingly, the learned District Judge reversed the judgments of the trial Court in both the suits and granted the plaintiffs declaration alley had prayed for.
Against the two judgment of the District Judge, Inayalullah alone filed two Regular Second Appeals is the High court, both of which were dismissed by a learned Single Judge by two separate judgments each dated 11-11-1963. It is however, important to point out that Dost Muhammad Khan to whom the equity of redemption in land in dispute in Suit No. 71/1 was sold, did not tile any appeal against the judgment of the learned District Judge. Accordingly, he was impleaded as respondent in R. S. A. No. 478 of 1964.
The learned Single Judge in the High Court dismissed both the appeals and upheld the judgments of the District Judge and the reasons on which these judgments were based.
Leave was granted to consider, whether in view of the fact that the various impugned mutations in favour of Inayatuilah and his son Dost Muhammad Khan, having been given effect in the subsequent jamabandis for a period of almost ten years, supporting the title of appellants herein, the first appellate Court and the H4gh Court were right to displace the presumption of correctness attaching to the entries in the jamabandis
Learned counsel for the plaintiffs-respondents raised a preliminary objection as to the competency of Civil Appeal No. 10-P of 1072, on the ground that Inayatullah's son Dost Muhammad, who was the ultimate transferee of 37 kanlas 9 marlas of laud aft dispute in that appeal, not having taken an appeal to the High Court against the judgment of the learned District Judge, could not now file Civil Appeal No. 10-P in this Court. The argument was that in the absence of appeal by him in the High Court, the judgment of the learned District Judge, became final against him and is therefore, not open to any challenge by him in this Court. The objec tion even went further and it was submitted that the mortgage rights of Inayatullah in 37 kanals 9 marlas having merged in the sale of the land in favour of his son, Civil Appeal No. 10-1s of 1972 had become wholly incom petent. Accordingly, it was contended that Civil Appeal No. 10-P of 197,E be dismissed on that short ground.
The objection against the competency of Civil Appeal No. 10-P by Dost Muhammad Khan is unexceptionable and must therefore, prevail. Hr having failed to file any appeal against the judgment of the learned District Judge, cannot be permitted to challenge in this Court, the finding of that Court, or of the High Court, Therefore, Civil Appeal No. 10-P must fail vis-a-vis Dost Muhammad Khan on the short ground. -
But that would not affect the competency of Civil Appeal No. 10-P so far as Inayatullah is concerned. He is a previous mortgagee of the land in dispute in that appeal, from the plaintiffs. What is alleged to have been sold to Dost Muhammad Khan, is equity of redemption of that land purporting to be on behalf of the plaintiff. These transactions stand on an independent footing, though concerning the same land. On no discoverable principle, can there be an automatic merger of equity of redemption of the land sold to Dost Muhammad Khan with the mortgagee rights in the land earlier held by his father. The doctrine of merger of equity of redemption springs from the fact that when the entire legal and equitable state are united in one and the same person, ordinarily it could be of no use to the owner to preserve the charge on the estate of which he has become the owner. In the instant case, the legal and the equitable estates in 37 kanals 9 marlas in dispute in Civil Appeal No. 10-P vest in two different presets as a result distinct transactions removed from each other in point of tire Even section 60 of the Transfer of Property Act, 1882 does not envisage the extinction of the equity of redemption by operation of law, except when the mortgagee acquires the equity of redemption by inheritance. Therefore, any disability suffered by Dost Muhammad Khan, by reason of his failure to appeal to the High Court against the judgment of the Additional District Judge will not defeat the appeal by his father, as mortgagee of the land.
The question of law, on which leave was granted, nevertheless remains common in both the appeals, notwithstanding the want of competency of Civil Appeal No. 10-P vis-a-vis Dost Muhammad Khan in the above circumstances.
Learned counsel for Inayatullah appellant argued that it was conceded in the plaint in the two suits that Hazrat Shah respondent held general power of attorney from the two plaintiffs, though power conferred upon Hazrat Shah was qualified by the condition that in the event of any dis position of property on behalf of his principals, Hazrat Shah could obtain their express permission. On the other land, learned counsel for the plaintiffs submitted that under the terms of power of attorney (Exh. P. A,), the power of Hazrat Shah respondent No. 3 was limited, merely to admitting or authenticating, the disposition of property on behalf of the plaintiffs before the revenue and other authorities without actually conferring power of alienation on their behalf. Reading the power of attorney as a whole, the impression created on one's mind is that the power was given to as many as four attorneys, including Hazrat Shah respondent to prosecute or defend jointly or severally legal proceedings in civil, revenue Courts on behalf of the plaintiffs. This included the power to sign pleadings, applications for making reference to arbitration, withdrawal of suits or entering into com promise etc. And then occur the following crucial words:
< --[if gte vml 1]>
Learned counsel for Inayatullah appellant submitted, that these words by necessary implication conferred upon the four attorneys, the power of disposition of property on behalf of the plaintiffs. It is however, important to note that the power conferred scrupulously avoid the use of the words like< --[if gte vml 1]>
However, that may be, in the instant case, as rightly pointed out by the learned District Judge and the High Court, both the appellants in para graphs 2 and S of their joint written statement had expressly stated that the impugned mutations in both the cases were attested in the presence and with the consent of the plaintiffs. Not only that : Inayatullah appellant, while in the witness-box had stated in no uncertain language that he himself paid Rs. 3,000 in cash to the two plaintiffs at the time of attestation of mutation No. 1E.3 for Rs. 4,00 in the baithak of the plaintiffs and that the plaintiffs themselves (and not their attorney) had got the mutation attested. He also stated in his: cross-examination that the appellants had executed a receipt for Rs. 4,000 in his favour. Hazrat Shah respondent No. 3 who entered the witness-box in support of the two appellants, also stated that Rs. 3,000 were paid directly to the two plaintiffs and that one Muhammad Jee scribed the receipt. No such receipt has been produced in the case, nor Muhammad Jee has been examined. In the face of this unsatisfactory evidence, it is no wonder that both the learned District Judge and the learned Judge in the High Court, recorded a finding against the two appellants.
Similarly, there is no creditable direct evidence in support of the purported sale of 4 kanlas 16 marlas (in dispute in Civil Appeal No I I-P) by the plaintiffs in favour of Inayatullah for Rs. 1,100. However, learned counsel for the appellant argued in the alternative that the various mutations having been incorporated in the jamabandi, the initial presumption of correctness must be raised in favour of the entries in the jamabanais and it lay heavily upon the plaintiffs to rebut the entries in tree jamabandis and consequently, even if the evidence about the payment of consideration to the plaintiffs on account of the various transactions in depute entered into between them and the applicants, has not been proved by the best evidence. In support of his argument, learned counsel relied upon the Privy Council judgment in Heirs of Prince Muhammad Saleem v. The Attorney General of Palestine (A R 1941 P C 99). The proposition laid down by their, Lordships of the Privy Council in that case is not open to any exception. But what probative value is to be attached to the entries, must depend upon the facts each case and it was not intended to-lay down in the precedent case, the presumption of correctness attaching to the entries in the revenue record is absolute. In the instant cases, on the balance of evidence produced in the case, the learned District Judge and the learned Judge in the High Court had rightly held that the presumption of correctness in the jamabandis has been rebutted and that barring mutation No. 11 attested on 6-8-1949, with regard to 37 kanals 9 marlas which has been admitted by the two plaintiffs in their plaint, the other transactions have rightly been held t::: have been disproved.
For the foregoing reasons, I would dismiss the two appeals with costs in Civil Appeal No. 11-P. Parties will bear their own costs in Civil Appeal No. 10-P.
Appeals dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer