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Civil Petition for Leave to Appeals Nos. 513 and 514/R of 1983, decided on 5th February, 1984.

(On appeal from the judgment and order of Peshawar High Court, Abbottabad Bench, dated 16‑5‑1983 passed in Letters Patent Appeals Nos. 3 and 4 of 1980).

---Art. 185(3)‑Letters Patent Appeal‑‑Judgment and order of High Court dismissing Letters Patent Appeal filed without requisite certificate of Single Judge as being incompetent‑Held, unexceptionable‑Leave to appeal refused.

Maulvi Sirajul Haq, Advocate Supreme Court and M. Afzal Siddiqi, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 5th February, 1984.

This order will dispose of the afore mentioned two C. P. L. As. which are directed against the judgment order of the Peshawar High Court, Abbottabad Bench, dated 16‑5‑1983 passed in L. P. As. Nos. 3 and 4 of 1980.

2. Facts mentioned in C. P. L. A. No. 514/R of 1983 are that the petitioners purchased the property in dispute 1/11 share in land measuring 24 Kanals 6 Marlas comprised in Khasra No. 259 situate in village Banda Phagwariah, Tehsil Abbottabad from its owner Mst. Wahab Noor through his general attorney Muhammad Iqbal respondent No. 2, for a consideration of Rs. 2.200 vide Mutation No. 544 entered in favour of the petitioners on 18‑3‑1968 and subsequently attested on 23‑5‑1968.

3. Facts given in C. P. L. A. No. 513/R of 1083 are that the property in dispute was owned by the above‑named lady Mst. Wahab Nur who appointed Muhammad Iqbal, respondent No. 2 as her general attorney vide power‑of‑attorney dated 4‑3‑1968 whereby the said Muhammad Iqbal was empowered to sell or mortgage the land in question in favour of any person and to receive the consideration therefore. The said attorney agreed to sell and the petitioners agreed to purchase the land in question for consideration of Rs. 5,625 which, according to the petitioners, was paid in full to the said attorney who got Mutation No. 542 entered in favour of the petitioners on 18‑3‑1968. The mutation came up for consideration before the Revenue Officer on 19‑4‑1968 when Muhammad Iqbal, respondent No. 2 appeared as attorney of Mst. Wahab Nur respondent No. 1 and admitted the factum of sale and receipt of consideration. The attestation was deferred pending receipt of the report of the Girdawar and was attested subsequently on 23‑5‑1968. Later on Mst. Wahab Nur, respondent No. 1 cancelled the power‑of‑attorney on 6‑5‑1968 and applied to the Revenue Officer for the cancellation of mutation and, consequently, on 7‑5‑1969 the mutation was cancelled.

4. The petitioners filed a suit for declaration to the effect that they had become the owners and were in possession of the land in question and that the order of the Revenue Officer dated 7‑5‑1969 was incorrect and illegal and that sale‑deed dated 31‑5‑1969 in favour of Muhammad Ajab respondent No 3 was fictitious and without consideration and hence illegal. Here it may be mentioned that after the cancellation of the mutation dated 18‑3‑1968 Mst. Wahab Nur, respondent No. 1 transferred the property in favour of Muhammad Ajab respondent No. 3. The suit was decided by the trial Court against the respondent. Appeal filed by the respondents in the Court of the learned District Judge against the judgment and decree of the trial Court was accepted and the suit was dismissed with costs. Petitioners filed R. S. A. in the Peshawar High Court, which was dismissed on 30‑6‑1980. Thereafter L. P. A. was filed which was also dismissed on 15‑5‑1983 vide the impugned judgment on the ground that it was not competent under the law.

Learned counsel for the petitioners contended that the power‑of‑attorney was cancelled by respondent No. 1 after the completion of sale in favour of the petitioners and, therefore, the cancellation was without any legal effect on the rights of the petitioners; that the matter of consideration of sale was between respondent No. 1 and her attorney for which no responsibility rested with the petitioners. He further contended that the sale of the same property in favour of respondent No 3 for a lesser consideration than paid by the petitioners by itself indicate that the entire case was concocted by or at the behest of respondent No. 2 ; that respondent No. 1 always wanted to sell the land and that the consideration paid by the petitioners was never in adequate ; that presumption of validity of the power‑of‑attorney and respon dent No. 1's knowledge of the contents thereof was fully supported by the witnesses and not rebutted by the respondents' evidence ; that the learned lower appellate Court and the learned High Court ignored the evidence on this point ; that letters Patent Appeal was competent against single Bench judgment as per law in force on the commencement of the lis and accordingly L. P. A. was‑filed against the judgment dated 10‑6‑1980.

5. We have examined the points raised by the learned counsel. The facts admitted are that Mst. Wahab Nur is a Purdahnashin lady and her statement was recorded by the trial Court. The learned Additional District Judge and the learned High Court upsetting the judgment of the trial Court, reached the conclusion that a fraud was played on the lady by her attorney and Muhammad Sadiq a witness of the power‑of‑attorney. She told by them to execute the power‑of‑attorney in Muhammad 1qbal's favour in order to get her property partitioned which was joint with her brothers and nephews. They took her to the Court where she was made to thumb‑impress a paper without the contents of the document having been explained to her. There after, she was taken to Tehsil and her thumb‑impression was obtained for the second time when none of her sons, daughters or any other near relatives were present and that she never authorised respondent No. 2 to transfer the said land by way of sale exchange or otherwise : that she received no sale consideration in respect of the said land and similarly defendant No. 2 did not pay anything as the sale consideration. There is nothing on the record to suggest that her statement is incorrect or that she made a false statement in order to benefit by it. As regards the second contention regarding the competency of the L P. A. the same has been dealt with at length by the learned High Court Judges in the impugned judgment dated 16‑5‑1983. It would suffice to say that without a certificate of the learned Single Judge of the High Court appeal in no case, would be competent. It has been held in cases referred to in the impugned judgment that the certificate was essential and without this requisite certificate, L. P. A. was not maintainable. We find no merit in these petitions, which are both dismissed accordingly.

S. Q. Petitions dismissed.

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