P L D 1949 Lahore 435 (PLP)

MUHAMMAD MUNIR, A. C. J.‑This is a regular first appeal from a decree of Sub‑Judge, First Class, Gujrat, dismissing a suit for a declara tion that an alienation effected by a widow would not affect the plaintiff's rights. The last male owner of the land in suit was one Bakhshi. He died, leaving behind him a widow Mst. Hatan and a daughter Mst. Roshi. Some of the collaterals of Bakhshi also were alive at the time of his death. On Bakhshi's death Mst. Hatan came into possession of the land left by her husband. On 27th November 1932, she trans ferred 621 kanals and 18 marlas of this land to Muhammad Afzal and Muhammad Hussain for an alleged consideration of Rs. 10,

000. There upon two suits were instituted, one by Maulu and others the collaterals of Bakhshi, and the other by Mst. Hatan's daughter, Mst. Roshi. The relief prayed in each suit was that the alienation by Mst. Hatan would, on her death, be inoperative against the plaintiff of each case. On 15th August 1929 Maulu's suit was decreed as prayed but Mst. Roshi's suit continued until on 3rd April 1929, it was compromised on the condition that Mst. Roshi was to be given 40 kanals of land and Rs. 600 in cash. The claim having thus been adjusted the suit was dismissed. The plaintiff in the present suit is Rana, a minor son of Mst. Roshi, who was born after Mst. Hatan had alienated the property to Muhammad Afzal and Muhammad Hussain. The suit was instituted on 31st May 1944 and was founded on the allegation that the compromise effected by the plaintiff's mother was inoperative against him. The alienees contested the suit and on the pleadings of the parties the learned Sub‑Judge framed the following issues :‑

1. Is the plaintiff heir of Bakhshi deceased?

2. If issue No. 1 is proved, is not the plaintiff competent to sue?

3. Is the suit within times?

4. Does not the decree, dated 15th August 1929 in favour of the collaterals ensure for the benefit of the plaintiff?

5. Is the plaintiff estopped by his conduct to sue?

6. Has not the plaintiff locus standi to sue as he was not in existence at the time of the alienation? After trial the learned Judge found that the plaintiff was heir to Bakhshi ' that he was not estopped and that the decree of 15th August 1929 did not ensure to his benefit. On issue Nos. 2, 3 and 6, he recorded a combined finding to the effect that the compromise impugned was not an alienation, that the plaintiff was not competent to sue, that he being an after‑born son was not entitled to challenge the alienation by Mst. Hatan and that a suit to call in question that aliena tion was barred by time :‑ Being aggrieved by this decision the plaintiff appealed to the Court and when the appeal first came up for hearing before a Division Bench, the following question was referred to a Full Bench. "If a widow alienates the self‑acquired property of her husband with the consent of her daughter, does such a consent debar her r:‑ from challenging the alienation?" The answer returned by the Full Bench was that the consent of the daughter to an alienation by a widow, of the self‑acquired property of her husband does not debar the daughter's son from challenging the alienation if the daughter survives the widow. The case is now before us to be decided on the merits in the light of the answer returned by the Full Bench. We have already pointed out that the suit was directed against the compromise affected by the plaintiff's mother. Though the plaint referred to the alienation by Mst. Hatan it did not directly attack it. But the plaint has been construed by the Division Bench who heard the appeal in the first instance as if it challenged the alienation by Mst. Hatan. Learned counsel for the appellant has now attempted to get out of the statement of the case by the Division Bench by arguing that his plaint and his case were misunderstood by that Bench and that he never attacked or challenged the alienation by Mst. Hatan. We cannot permit him to resile from the position taken by him not only before the Division Bench who heard the appeal in the first instance but also before the Full Bench and before us until his attention was drown to the question referred for decision to the Full Bench. The learned Sub‑Judge himself had some difficulty in following the plaint but we have not the slightest doubt that the appellant allowed his case to be understood by the Division Bench as if he was in the plaint attacking the alienation effected by Mst. Hatan. If the question framed by the Division Bench after hearing the appellant was incorrect and did not arise in the case as is alleged by him now, it was obviously his duty to object to the form of the question before the Division Bench and also before us when we resumed the hearing of this appeal. It is only after he was made to realize the implications of the question framed that he attempted to wriggle out of the position agreed to by him before the earlier Division Bench. We cannot allow him now to argue that his case is different from the one formulated in the question and if the question formulated correctly interprets the plaint id the suit, it is obvious that the suit must be dismissed on the ground that it was barred by time. We have, already pointed out that the alienation alluded to in the question referred to the Full Bench is the alienation of 1922 while the present suit was brought by the appellant in 1944. The appellant is an after-born son and if it be assumed that he has the right to question the alienation, the suit is clearly barred by time having been brought more than 20 years after the alienation. At the time of the alienation some of the reversioners were alive and they brought a suit challenging the alienation, which was decreed. Time therefore began to run from the date of the alienation and the subsequent birth of the plaintiff could not stop it from running. We hold the suit was barred by time and dismiss the appeal with costs. M. Khurshid Zaman J.‑I agree. K. M. A. Appeal dismissed.