2008 PLP 1031 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

The petitioners sex leave to appeal against judgment dated 6-10-2000 passed by a learned Division Bench of the Lahore High Court, Lahore, in R.S.A. No.498 of 1978.

2. The relevant facts of the case are that the respondent instituted, on 15-10-1982, a civil suit against the petitioners for specific performance of agreement, dated 29-12-1958 (Exh.P.I.) registered on 13-1-1959. It was averred. in the plaint that one of the petitioners namely late Muhammad Ali had executed the aforesaid agreement in favour of the respondent for the transfer of 5 Killas of the land in case the respondent succeeded, at his expense, in getting the cancellation of transaction of exchange of land between the petitioners and Ismail etc. and, also for allotment and confirmation of land in favour of the petitioner against their remaining P.I. Units. Therefore, the respondent claimed transfer of 44 Kanals and 4 Marlas of land of the petitioners situated in Village Ghazi Minara, District Sheikhupura. The Senior Civil Judge, Sheikhupura, decreed the suit of the respondent, by judgment and decree, dated 24-3-1966. The petitioners preferred an appeal thereagainst which was allowed by the District Judge, Sheikhupura, by judgment and decree, dated 15-10-1977. Therefore, the respondent filed R.S.A. No.498 of 1998 which was allowed by the Lahore High Court, by judgment, dated 6-10-2000. Consequently, the judgment and decree dated 24-3-1966 passed by the trial Court was restored with costs throughout. Hence this petition for leave to appeal.

3. The learned counsel for the petitioners argued that both the petitioners late Muhammad Ali and Sultan were minors at the relevant time. Therefore, the petitioner No.1 Muhammad Ali could not enter into any valid agreement with the respondent for the transfer of 5 Killas of the land of the petitioners in his favour. It was submitted that the execution of the agreement between the petitioner No.1 and the respondent was not proved in accordance with law. Even otherwise, the agreement was illegal and void made under undue influence. The trial Court as well as the High Court misread and ,also ignored to consider the material evidence on record which resulted in gross miscarriage of justice. The learned counsel referred to the statement of P.W.1 Ch. Sultan Ali, Advocate, to show that the petitioners were minor orphans at the time of alleged agreement.

4. On the other hand, the learned counsel for the respondent argued that the issue of minority of the petitioners was not specifically framed by the trial Court. Therefore, such a plea could not be allowed to be raised by the petitioners. It was further contended that the trial Court as well as the High Court had recorded findings of fact after proper appraisal of evidence on record whereby the execution of agreement by the petitioners for the transfer of 5 Killas of land in favour of the respondent was duly proved.

5. We have heard the learned counsel for the parties at length and have also gone through the record. We find that P.W.1 Ch. Sultan Ali, Advocate, stated that he had conducted the appeals of the petitioners for the cancellation of the transaction of exchange for which necessary professional fee had been paid by Ch. Muhammad Siddique real uncle of the respondent. He also admitted that the petitioners were orphans and minors at that time. Not only that he further stated that a fictitious pronote for Rs.4,000 was got executed by Muhammad Siddique from the petitioners in favour of the respondent. There is also the evidence on record that the petitioners being orphans were under the care and guardianship of the father and real uncle of the respondent. They were, therefore, under their influence. In the case of the Chairman, District Screening Committee, Lahore v. Sharif Ahmad Hashmi PLD 1976 SC 258 it was laid down that an agreement by person under a legal disability e.g. a minor was void ab initio and was incapable of rectification or confirmation. Law forbids such a transaction even if the minors were to ratify after attaining the age of majority. Therefore, the suit of the respondent against the petitioners for specific performance of the alleged agreement of transfer of 5 Killas of land could not decreed. Needless to observe that Sultan, the petitioner No.2, was not even a party to the alleged agreement. The impugned judgment is not sustainable at law.

6. For the foregoing reasons, this petition is converted into appeal and the same is allowed by condoning the delay for the reasons stated in the application for condonation of delay. Consequently, the impugned judgment, dated 6-10-2000 passed by the Lahore High Court, Lahore in R.S.A. No.498 of 1978 as well as the judgment and decree dated 24-3-1966 passed by the Civil Judge, Sheikhupura are set aside. The judgment and decree, dated 15-10-1977 passed by the Additional District Judge, Sheikhupura thereby dismissing the civil suit of the respondent is restored. There shall be no order as to costs. S.A.K./M-163/SC Appeal allowed.