1998 PLP 1439 (CLC)

6. On the other hand, the defendants produced D.W.1 Muhammad Sharif Patwari whose statement was not recorded and the defendants were directed to produce the certified copies of the documents. D.W.2 Jan Muhammad, in his cross‑examination, stated that he was relative of defendants and he had heard of the sale transaction, was not himself present at the time of sale transaction, did not know the sale consideration and further stated that at the time of sale in favour of Pir Muhammad, the age of the plaintiff was 12/13 years and his moustaches were not grown at that time. D.W.3 Ashiq Muhammad is relative of one of the defendants, who admitted that he was not present at the time of attestation of sale mutation and further stated that the sale was through registered deed and at that time the plaintiff was adult. D.W.4 Dost Muhammad stated that he knew the parties, 40 years ago the plaintiff sold the land in dispute to Pir Muhammad, the defendants Ghulam Muhammad and Akbar (the predecessors of the defendants 1 to 11) filed a suit which was decided in their favour, the defendants never gave any share of produce to the plaintiff and at the time of sale the plaintiff was adult. D.W.5 Karam Khan stated that the pre‑emption suit of Ghulam Muhammad was decided in his favour. D.W. 6 Pir Muhammad stated that he had purchased the land in dispute from plaintiff for a consideration of Rs.50, he had purchased the same through a registered sale‑deed, about 40 years ago the suit of Ghulam Muhammad and Akbar was decided in their favour, could not remember the age of plaintiff at the time of sale but stated that he had developed beard and moustaches and that the plaintiff had abducted a woman of the village and denied the suggestion that he obtained land in dispute through fictious proceedings. D.W.7 Muhammad Hussain son of Ghulam Muhammad, defendant No. 1, stated that the land in dispute was purchased by Pir Muhammad which was pre‑empted by his father about 35/36 years ago and the pre‑emption suit was decreed in favour of his father and his father obtained possession of the land and his father never gave any share of produce to any one and neither the same was demanded by anyone from him. The defendants also produced the documentary evidence as follows; Exh.DI copy of mutation of sale No.73, dated 2‑7‑1927 showing that the same was attested in the presence of the appellant on the basis of a sale‑deed registered on 3‑3‑1927 in favour of defendant No. 12 Pir Muhammad, Exh.D2 mutation No. 140, dated 24‑9‑1951 of inheritance of Ghulam Muhammad the predecessor of defendants 1 to 9, Exh.D3 mutation No. 13, dated 25‑6‑1933 in favour of Ghulam Muhammad, attested on the basis of pre‑emption decree. This document shows that Pir Muhammad defendant appeared before the Revenue Officer, pre‑emption decree was also produced before the Revenue Officer and it also narrates that to the extent of the share of co‑pre‑emptor Akbar, the mutation had already been attested in his favour. Exhs.D4 and D5 copies of Khasra Girdawaris showing the defendant's possession, Exhs. D6 to D15 copies of Jamabandi for the years 1929‑30 to 1965‑66 showing the ownership of the defendants 1 to 11 in the Revenue Record.

7. After the recording of the evidence of the parties and after having heard the arguments of the learned counsel for the parties, learned Civil Judge, Bahawalnagar, Camp at Hasilpur, vide his judgment and decree, dated 11‑10‑1967 dismissed the appellant's suit which was challenged by the appellant in the First Appeal and at the appeal stage the legal heirs of Ghulam Muhammad (defendants 1 to 9) entered into a compromise with the appellant and half of the land in dispute to the extent of whole of share of Ghulam Muhammad defendant was handed over to the appellant and the learned Additional District Judge, Bahawalpur, the first Appellate Court, vide his judgment and decree, dated 23‑2‑1971, partially accepted the appellant's appeal due to the compromise, to the extent of share of Ghulam Muhammad and dismissed the appellant's appeal to the extent of share of Akbar Khan (predecessor of defendants 10 and 11, now respondents 1 and 2). Hence this Second Appeal.

8. I have heard the learned counsel for the parties and have also seen the record.

9. It is contended by the learned counsel for the appellant that the land in dispute was never sold by the appellant to Pir Muhammad, the land was allegedly sold through a registered sale‑deed which has not been produced in evidence, therefore, an adverse presumption is to be drawn against the defendants, the payment of sale consideration has also not been proved, the petitioner was minor and even if it is admitted for the sake of argument (without conceding) that a sale took place, the same was ab initio void and no rights were transferred in favour of the vendee and consequently the alleged pre‑emption decree in favour of the pre‑emptors Ghulam Muhammad and Akbar, the predecessors of defendants 1 to 11 is ineffective against the rights of the appellant, the Trial Court acted illegally in not framing a specific issue regarding the age of the appellant/plaintiff at the time of alleged sale by him in favour of Pir Muhammad, the defendants have miserably failed to prove that their predecessors became owners on the basis of pre‑emption decree in their favour as the judgment and decree has not been produced in evidence, the appellant successfully explained his absence from the scene for a long time and merely his absence from his holding cannot, in law, deprive him of the same, the judgments of the Courts below suffer from illegalities, irregularities and non‑reading of evidence inasmuch as the effect of the statement of D.W.2 Jan Muhammad has not been considered who has categorically stated that at the time of sale the plaintiff was 12/ 13 years of age and the appellant had fully proved his case and his suit merits to be decreed in his favour with costs throughout.

10. On the other hand, learned counsel for the respondent while vehemently opposing the appeal has submitted that the plaintiff was a major at the time of execution of sale, the defendants have successfully proved that he sold the land through a registered sale‑deed, Ghulam Muhammad and Akbar, the predecessors of defendants 1 to 11 became owners of the land in dispute on the basis of pre emption decree passed in their favour as far back as on 5‑11‑1928, they came into possession of the land in dispute under it, since then are in undisputed possession of the same without any interference of anyone and the long‑standing entries in the Revenue Record also proved the same. It is further argued that the appellant remained silent for about 39 years and thereafter has instituted the present frivolous suit in a mala fide manner without any basis and the Courts below have correctly dismissed the same.

11. My findings are as below: 12(a). The perusal of the record, especially mutation of sale No.73 (Exh.Dl) has proved the sale transaction by the plaintiff in favour of Pir Muhammad who also appeared at the age of 90 in Court as D.W.6 in ,support of defendants' case and stated that he had purchased the same through registered sale‑deed for a consideration of Rs.50 and possession had also been delivered to him under it. The Revenue Record shows that the plaintiff was never in possession thereafter and this fact also proves the transaction. 12(b). The perusal of Exh.D3 Mutation No.l3, dated 25‑6‑1933 has also proved the defendants' version that the sale in favour of Pir Muhammad was successfully pre‑empted by Akbar and Ghulam Muhammad, predecessors of defendants 1 to 11 and at the time of attestation of this mutation in favour of Ghulam Muhammad, the pre‑emption decree was also produced before the Revenue Officer, and, therefore, the argument of the learned counsel for the appellant that the defendants have failed to prove the ownership of their predecessors Ghulam Muhammad and Akbar on the basis of a pre‑emption decree has no force because the plaintiff has failed to prove that the entries in this mutation (Exh.D3) are fictitious or that the same is the result of fraud and impersonation as after the production of abovementioned document by the defendants it was for the plaintiff to prove that the same was not based on facts. 12(c). The entire Revenue Record produced by the defendants in the shape of the copies of record of rights from 1929 to 1966, the time of institution of the present suit (Exhs.D6 to D15) shows that the defendants 1 to 11 were in possession as owners and, therefore, the assertion of the plaintiff that till 2/3 years prior to the institution of the suit the defendants kept on paying him the share of the produce as his tenants is not believable and is merely a concoction.

13. However, the fact remains that both the Courts below have brushed aside in a summary manner the alternate plea raised by the appellant/plaintiff that at the time of the alleged sale by him in favour of Pir Muhammad, he was a minor and, therefore, no rights were transferred in favour of Pir Muhammad. The Trial Court has held that the plaintiff has failed to prove that he was a minor because he failed to produce his birth entry and also because no objection was taken either by the plaintiff or Pir Muhammad, the vendee when the pre‑emption suit was filed, that it was not a valid sale because of the minority of Vendor, the present plaintiff. The Appellate Court has not gone into this aspect at all by holding that there is no reason to decide the same because after attaining majority the plaintiff could have challenged the same within 12 years and as he did not do so, therefore, the suit was anyway barred by time.

14. The reasoning of the Trial Court is not based on cogent reasons. There is nothing on the record to show that as far back as in 1927, any such public record was being maintained by any official/public functionary and the same was still in existence, the copy of which could be obtained by the plaintiff to prove that he was minor in 1927. No doubt, Chowkidara system, age old institution, was in existence at that time but nobody came forward from the defendants' side to prove that such Chowkidara system was available in their village as well and the Chowkidars/Peons were regularly maintaining the birth and death record of the villagers since 1920 or even prior to that because the plaintiff's case is that he was 10/11 years of age at the time of transaction of sale in 1927 and if the same is to be believed then he must have been born somewhere in 1916. Similarly, the defendants did not produce the judgment and decree passed in pre emption suit to show that no such objection was raised at that time by the vendee and that it was not a consent decree, because if it was a consent decree then the vendee obviously would not have raised the objection regarding the minority of the vendor. Furthermore, there is nothing on the record to show that the appellant vendor was ever a party to the pre‑emption suit or had the opportunity or occasion to raise the objection regarding his age, in that suit because the vendors in a pre‑emption suit are either not impleaded as a party or their names are deleted at very initial stage, without any notice to them, as being an unnecessary party.

15. I am also of the view that the First Appellate Court acted illegally in not giving the decision regarding the age of the appellant at the time of sale because if the appellant was a minor at the time of sale, then another legal issue would arise as to whether such a sale is void or voidable and if it is held to be voidable then the issue of limitation would arise and if it is held to be void then the issue of limitation would not arise and the only conclusion that would be drawn is that through the void transaction of sale, no transfer took place and no rights were created in favour of Pir Muhammad defendant No. 12 and consequently no lawful rights were transferred in favour of pre‑emptors on the basis of the pre‑emption decree, keeping in view that pre‑emption is merely a substitution and pre‑emptors cannot obtain a better title than that of the vendee.

16. In view of the above discussions, I am of the view that it was necessary for the First Appellate Court to give a decision regarding the age of the plaintiff at the time of sale.

17. The appellant's plea that non‑framing of a specific issue regarding the age of the appellant has resulted in an illegality has also no force as although the non‑framing of a specific issue was an irregularity but the same stood cured by the fact that both the parties were conscious of this controversy and consciously led their entire evidence keeping in view the lis and whole of the evidence in this regard is available on the record, therefore, there is no necessity to go into the exercise of framing of afresh issue and of holding the trial de novo because the learned counsel for both the parties at the time of addressing arguments before this Court admitted at the Bar that the parties did not want to produce any additional evidence and this controversy can be resolved by the First Appellate Court on the present record. But as it is a very old matter, therefore, I am not inclined to remand the case back to the First Appellate Court to give the decision afresh especially when the parties do not want to lead any additional evidence.

18. It may be mentioned here that I have discussed the evidence in detail because the Trial Court not only misread the record but also drew wrong conclusions from facts found and the evidence available on the record and Appellate Court, as mentioned above, acted in an illegal manner by not giving a finding regarding the age of plaintiff/appellant at the relevant time. The judgments of both the Courts below also suffer from non‑reading of evidence as nothing has been said about the conceding written statement of defendant No. 12 Pir Muhammad, the vendee from the plaintiff and the statement of D.W.2 Jan Muhammad has also not been referred to.

19. After having gone through the entire evidence, I have come to the conclusion that plaintiff/appellant was a minor at the time he entered into the sale transaction with defendant No. 12, Pir Muhammad because (i) Pir Muhammad himself in his written statement admitted that at the time of the sale in his favour, the plaintiff‑appellant was a minor, though later on he gave an application for the amendment of the written statement which was dismissed and in his statement as D.W.6 he did not say that the stand taken by him in his written statement was incorrect and contrary to facts, (ii) In his statement as D.W.6 he has not stated that the plaintiff was a major at the time of sale in his favour and in fact he has avoided the question by stating in the cross‑examination that he did not remember the age of plaintiff at the time of the transaction, and, (iii) The defendants have never disowned the statement of their own star witness D.W.2 Jan Muhammad who in his cross‑examination has very categorically stated that at the time of sale the plaintiff was 12/13 years of age and his moustaches had not developed at that time. This witness is also a relative of the defendants. The abovementioned evidence has conclusively proved that the plaintiff was a minor when he struck the bargain of sale with Pir Muhammad defendant No. 12, predecessor in interest of respondents 3 to 9.

20. Learned counsel for the parties also made their submissions on the legal effect of a sale transaction entered into by a minor. Learned counsel for the appellant has submitted that the sale effected by a minor being invalid is void and the same is to be ignored and the period of limitation does not run against a void transaction. Learned counsel has also placed his reliance on Govind Prasad v. Shanti Swarup (AIR 1935 Allahabad 778(DB)), Ghulam Hussain v. Ghaus Bakhsh and others (PLD 1963 (W.P.) Baghdad‑ul‑Jadid 30) and Safdar Ali through his legal heirs and 3 others v. Muhammad Malik and 4 others (1995 CLC 1751). On the other hand, learned counsel for the respondents has referred to the provisions of sections 6 and 9 of the Limitation Act, 1908 to contend that if a person is suffering from a legal disability then the period of limitation would start running against him from the time when the disability ended and, has contended, in the present case, the alleged disability of the plaintiff ended when he attained majority and as the plaintiff failed to institute the present suit for possession within 12 years of the cessation of his disability, the suit was hopelessly barred by time. Learned counsel has also placed his reliance on Allah Ditta and another v. Muhammad Azeem (PLD 1953 Baghdad‑ul‑Jadid 1 (DB)) wherein it was held that in the case of a plaintiff who claims that at the time when the cause of action arose he was a minor and, therefore, competent to sue within three years of his becoming major it is necessary to state in unequivocal terms as to when the cause of action actually arose, when he became a major and further how much time he took after becoming major to come to Court. This judgment is not applicable to the issue involved in this case because in the present case it is to be seen as to whether any transfer took place in favour of defendant No. 12 Pit Muhammad on the basis of the sale executed in his favour by the minor plaintiff.

21. Section 11 of the Contract Act IX of 1872 makes the minor as incompetent to enter into any contract and the superior Courts including the apex Court have repeatedly held that a contract by a minor is void ab initio and not merely voidable, such a contract has no existence in the eye of law, it is incapable of ratification or confirmation, law forbids the enforcement of such a transaction even if the minor were to ratify it after attaining majority, a minor can after attaining majority dispose of his property in any way he likes, so much so in spite of the fraudulent representation as to his age by means of which a minor obtained money on a promissory note, the creditor cannot enforce the liability through a suit and recover the money from the minor. Reference in this regard can be made to The Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi (PLD 1976 SC 258), Karim Bakhsh v. Gul Rehman (1990 CLC 1200), Ma Hnit and others v. Hashim Ebrahim Meter and another (AIR 1919 Privy Council 129), Govind Ram v. Piran Ditta and others (AIR 1935 Lahore 561 (Full Bench)), Firm Bhola Ram‑Harbans Lal and another v. Bhagat Ram and others (AIR 1927 Lahore 24 (DB)) and Narendra Kumar Das v. MD. Babru and another (PLD 1971 Dacca 281). Learned counsel for the appellant has very correctly relied upon Safdar Ali through his legal heirs and 3 others v. Muhammad Malik and 4 others (supra) wherein while considering the distinction between executory and executed contracts, it was held by a learned Single Judge of this Court that an agreement by a minor would be valid where he was beneficiary of a contract in respect of executed contract and where however such contract contained reciprocal promises and some part still remains to be performed by minor, same would be void and an agreement by minor is not enforceable by the other party.

22. The abovementioned clearly shows that the sale transaction entered into by the plaintiff/appellant is favour of defendant No.12 Pir Muhammad was ab initio void, no transfer took place in favour of Pir Muhammad under that sale, said sale does not exist in the eye of law, the appellant retained owner of the land in dispute throughout and consequently no title passed on to the pre emptors, the predecessors of defendants 1 to 11, and as such the issue of limitation does not arise because even at the time of institution of the suit, the plaintiff was owner of the land in dispute and he could any time come forward and assert his right to the possession against the person who were illegal occupants.

23. In view of the above discussions, this appeal is accepted with costs throughout and the judgments and decrees of both the Courts below are set aside and the appellant/plaintiff's suit is decreed in his favour as prayed for. A.A.ID‑15/L Appeal accepted.