P L D 1984 Peshawar 278 (PLP)

S. Allah Nawaz Khan, assisted by S. Muzaffar Shah for Petitioner. H. Saadullah Khan Miankhel for Respondent. Nos. 1 and 130. Khuda Bakhsh Baloch for Respondent No. 41 S. Safdar Hussain for Respondent No. 131. Dates of hearing : 22nd and 23rd May, 1984. This is a civil revision petition under section 115, C. P. C by Ghulam Hassan son of Jan Muhammad of village Ghamsan against the judgment and decree, dated .31‑5‑1976 of Mr. Inayat Ufah Khan Additional Dis trict Judge, D. 1. Khan whereby he accepted the appeal filed by Soharu and others against the judgment and decree, dated 15‑10‑1965 of the Senior Civil Judge, D. 1. Khan. 2. Facts giving rise to the instant litigation may be. summarised as thus ; Soharu and 5. others, sued Muhammad Hunain Khan and 107 others for a declaration to the effect that half of the suit property de tailed in the , head notes of the plaint belonged to Hayat while the other half was the ownership of defendants 27 to 108 and that upon the death of Hayat his inheritance was attested on 26‑10‑1902 vide Mutation No. 575 in respect of the land in village Ramak and vide Mutation No. is attested on 29‑9 1906 with regard to the land situate in village Ghamsan in favour of his sons Tagga and Muhammad alias Bakhsha. It was averred that Tagga sold his share in village Ramak through Mutation No. 215 attested on I 1‑6‑1911 and also that in village Ghamsaa through Mutation No. 124 attested, on 18‑ ‑1911 alongwith the share of Muhammad alias Bakhsha, the predecessor‑in‑interest of the plaintiff who was allegedly minor at the relevant time, in favour of the predecessor‑in‑interest of ` defendants 1 to 6. It was further agitated that Tagga aforesaid died ,' issueless and Muhammad alias Bakhsha the predecessor‑in‑interest of the plaintiff died on 26‑6‑1941 at village Layyah while serving in the Municipal Committee after becoming major. That as a result of the consoli dation proceedings in 1963 the plaintiff came to know that defendants I to 26 and their predecessar‑in‑interest in collusion with the revenue staff fraudulently and deceitfully got land belonging to the father of plaintiffs 1 to 6 attested in their names. It was prayed that the entries iii Revenue record being the result of fraud and collusion are ineffective on the rights of the plaintiffs with a prayer for permanent injunction , against the defendants 1 to 6 not to interfere with the possession and ownership of the suit land of the plaintiffs and should not create hurdles to get the revenue record corrected. 3. All the defendants were proceeded against ex parte and the learned Senior Civil Judge, D. I. Khan vide his judgment and decree, dated 15‑10‑1965 dismissed the suit of the plaintiffs as time‑barred. Feeling aggrieved by the judgment and decree of the learned Senior Civil Judge. Sahara etc. plaints preferred an appeal in the Court of District Judge, D. I. Khan and vide judgment and decree 16‑7‑1966 the learned District Judge accepted the appeal and declared that the plaintiffs were the, owners of the land left by their predecessor‑in‑interest Muhammad alias Muhammad Bakhsh and that sale by Tagga was void and ineffective as against their right. Except for a minor, who too was represented by the Reader of the Court as his guardian, the respondents were all proceeded against ex parte and the decree in appeal was also the result of ex parte proceedings. It appears that Ghulam Hassan and others (defendant/respondents 69, 86, 35, 27, 87, 83, 72 and 73) applied to the Court of District Judge to set aside an ex parte decree which too was dismissed on 5‑9‑1968. Ghulam Hassan aggrieved by the order of the District Judge dated 5‑9‑1968 had filed an appeal in the Peshawar High Court, Peshawar and by his judgment and decree, dated 14‑2‑1975. honourable Mr. Justice Abdul Hakim Khan, J, was pleased to accept the appeal of Ghulam Hassan etc. and setting aside the impugned order of the learned District Judge had dir ected the rehearing of appeal in accordance with law. After the remand, the learned District Judge vide his judgment and decree, dated 31‑5‑1976 after given full opportunity to both the parties accepted the appeal and set aside judgment and decree, dated 15‑10‑1965 of the Senior Civil Judge, D. I. Khan. 4. Feeling dissatisfied with the aforementioned judgment and decree of the learned District Judge, Ghulam Hassan has come in revision to this Court with the prayer that the judgment and decree of the learned District Judge being against law and facts, be declared as such and setting aside the same, the judgment and decree of the Court of learned Senior Civil Judge, D. 1. Khan be restored. Sardar Allah Nawaz Khan, Advocate and Syed Muzaffer Shah, Advocate for the petitioner, Haji Saadullah Khan Miankhel on behalf of respondent No. 1 and Legal Represen tations of deceased respondent No. 130 and Safdar Hussain Bokanri, Advocate for respondent No. 131 addressed the arguments at the bar while the rest of the respondents have all been proceeded against ex parte. 5. Mutation No. 124 (Exh. P. W. 6/2) pertaining to village Ghamsan was attested on 18‑6‑1911 and Mutation No. 205 (Exh. P. W. 6/I) of village Ramak was also attested on the same date. The present suit by the successors‑in‑interest of Muhammad alias Muhammad Bakhsb alias Bakhsha was instituted on 28‑7‑1964. Exh. P. W. 1/1 is a copy of the death certificate in respect of said Bakhsha. According to this certificate Bakhsha died on 24‑6‑1942. The age of Bakhsha at the time of his death has been given as 50 years. Plaintiffs/respondents have attacked the transactions on the ground that since Muhammad Bakhsh alias B3khsha their predecessor in‑interest was minor, therefore, the sale of the property which devolved on hi n was void. The death certificate has been produced by the plaintiffs. If we go by the said death certificate and presume as correct the age of Baksha as 50 years on 24‑6‑1942, his date of birth comes to 24‑ ‑1892. the mut ations were attested on 18‑6‑1911. Obviously by that date Muhammad Bakhsh alias Bakhsha was of about 19 years of age. The names of Ghulam Qasim etc. were substituted in place of Tagga and Bakhsha for the first time in the 'Jamaliandi' 1913‑t4. Even if it is presumed that at the time of attestation of the impugned mutations Bakhsha was minor, he could in stitute a suit on attaining majority within 3 years. It is needless to point out that onus is on the plaintiff who seeks to bring his' suit within time by virtue of the disability provisions to prove that the suit was instituted within the period allowed by the provisions in sections 5, 7 and 8 of the Limitation Act. Admittedly the defendants are in possession of the suit land ever since 1913‑14, Nowhere the plaintiffs have proved that the possession was permissive possession. On the other hand the record placed on the file is clearly indicative of the fact toe: the defendants are in possession of, the suit land as full‑fledged owners having purchased the same from the predecessor‑in‑interest of the plaintiffs and his brother Tagga. Under Article 144, Limitation Act a plaintiff who was never in possession but has acquired a title which entitled him to possession must file his suit within 12 year of such possession, In the instant case, however, the suit was instituted after 22 years of the death of Muhammad Bakhsh alias Bakhsha. It cannot be lost sight of that possession of the defendants over the suit land was actual, visible and exclusive besides continuous during the statutory period. Rather this possession was for more than 54 years. In such a situation even if we believe that Muhammad Bakhsh alias Bakhsha was minor at the time of attestation of the mutation, although the plaintiffs have faded to discharge this onus, because by pacing the death certificate, they have themselves admitted that Bakhsha wag not minor even at the time of attestation of the mutation under Article '144 of the Limitations Act, the suit of the plaintiffs was barred by limitation. 6. It was argued that since under the law the property of a minor could not be acquired the order of the Revenue Officer with regard to the attestation of the mutation was void. In this connection it may well be recalled that a void order is one which could render the proceedings coram non judice such as, the one passed mala fide, without jurisdiction or in violation of mandatory provisions of law. Assuming without conceding, for sake of arguments that the transfer of property by Tagga on behalf of the minor was void and duly conforming with the‑principle of Muslim law that alienation of property by a de facto guardian of a minor who has no power to transfer any right or interest in, immovable property of a minor, such a transfer is not merely voidable but is void, in such cases it cannot be said that the affected person is at liberty in all cases to choose his own time to get the same removed. or set aside. In V. R. Mall v. Sh. Muhammad Yusuf and another (P L D 1975 Lah. 827) it was held that ;‑ "but if a person presumes that an order is a nullity and ignores the same he does so at his own risk. Subsequently, if he comes to a Court he shall have to show that the right he is claiming and which was hit by that presumed void order is not lost due to any provision of the Limitation Act." Similarly in Mst. Aisha Begum v. Mst. Kundan Jan and others (A I R 1945 All. 367) it was held :‑ . "There is a wide difference between an agreement which is voidable and one which is void. A voidable contract is a good contract so long as it is not avoided by the person who has the right to avoid the same, while a void contract is no contract in law, and in the eye of law it does not exist, when a party seeks to avoid a voidable contract and get certain ancillary relief it follows that if his claim for avoidance of the contract is barred by limitation he cannot get the an cillary reliefs while if the contract is void it is not necessary to have the contract set aside and the rights of the parties can be determined independently of the deed. So, even the claim for the cancellation of the deed or for declaration that it is void is barred by limitation the rights of the parties can still be determined independently of the same. Therefore, where property has been transferred under a void agreement the plaintiff is entitled to bring his suit for pos session within 12 years and Art. 91 would have no application." In Kasem Molla v. Fajel Shek and others (P L D 1912 Dacca 347) it was held :‑ "Plaintiff whose property has been alienated by his mother during his minority need not set aside the transfer which is void but he can institute a suit for possession within twelve years from the date of sale or within three years from the date of his attainment of majority whichever may be the latter date. If the suit is not so instituted his title in the property would be extinguished under section 28 of the Act and the subsequent suit would be barred by limitation." As observed earlier the suit property of Tagga and Muhammad Bakhsh alias Bakhsha was transferred in the name of the defendants in 1911 and was given effect in the revenue record in 1913‑14. Although the plaintiffs have miserably failed to establish that Muhammad Bakhsh alias Bakhsha the predecessor‑in interest of the plaintiffs was minor at the crucial time, even if it is taken for granted that be was minor, on attaining majority he was bound to get the relief prayed for by his successors within 3 years or at the most within 12 years. Muhammad Bakhsh alias Bakhsha died in 1942, it is not believable for all practical purposes that Muhammad Bakhsh alias Bakhsha during 32 years, after he attained majority, did not know about the alienation of his share in the suit property by Tagga big brother. Equally it also can not be believed that for long 22 years even the plaintiffs did not have the knowledge of change in the revenue record 'which was brought about in 1913‑14. The plaintiffs have further failed to prove any attempt oil their part to show that the possession of the defendants was not adverse. In Allah Dicta and another v. Muhammad Azeem (P L D 1953 B J 1) it was held :‑ "The burden of proving that his suit is within time rests heavily on the plaintiff which means that he must affirmatively prove that the cause of action arose within the prescribed period of limitation. In the case of a plaintiff who claims than 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 unequi vocal terms as to when the cause of action actually arose, when he became a major and further how much time he took after becom ing major to come to Court. All this requires that not only ap proximate but actual relevant dates should be given in the plaint and also proved by the evidence." As against' the principle laid down in the aforesaid authority, what to speak of bringing the suit within 3 years after attaining .majority by the prede cessor of the plaintiffs, it was not instituted by him within 12 years. Rather the plaintiffs who claim to be the owners of the suit property as heirs of Muhammad Bakhsh alias Bakhsha who is said to be minor at the time of the alleged transfer, after the death of Muhammad Bakhsh alias Bakhsha waited for long 22 years. whereafter they have instituted the instant suit. 7. Under section 41 of the Transfer of Property Act if a man either by words or by conduct has intimated that he consents to an act which has been done and that he will offer no opposition to it be cannot question be illegality of the act he had so sanctioned to the prejudice of those who have so given faith to his words or to the inference to be drawn from his conduct. The essential ingredients for the application of the provisions embodied in section 41 of the Transfer of Property Act are that (a) transferor should be the ostensible owner, (h) he is so by the consent, express or implied of the real owner, (c) the transfer is for consideration, and (d) the transferee has acted in good faith taking reasonable care to ascertain that the transferor bad power to , In. this case nowhere it has been proved that Bakhsha the real owner of the suit property ever objected the transfer of the suit land by his action expressed or implied. On the other hand the fact that the said Bakhsha during his entire life time made no effort whatsoever to annul the acts performed by his brother Tagga would clearly indicate that he bad accepted the position. 8. The learned District Judge has upset the findings of the trial Court on the ground that the vendees/defendants failed to produce any evidence that either they had taken possession physically of the entire land or that they acted in such a way ‑which amounted to ouster of the owners or that the owners were stopped from interfering with the right of their possession. It is an established principle of law that the onus to prove title rests on the plaintiffs. The plaintiffs have miserably failed to prove that the defendants/vendess were not in possession of the land. Consistently direct from 1913‑14, the vendees/ defendants are shown to be the owners in possession of the suit land. It is clear from the documents placed by the plaintiffs (Exh. P. W.‑6/11) and (Exh. 6/12) that the share which fell in the name of Ghulam Qasim vendee/ defendant was forfeited against the 'taccavi' loan obtained by him, from the Government. There can be no dispute that record‑of‑right is not an F instrument devolving title. Although the plaintiffs have not been able t4 prove on record that Muhammad Bakhsh alias Bakhsha was m‑nor at the time of the attestation of the impugned mutation yet assuming for the arguments sake that he was minor and the entries in the revenue record were the result of a void transaction, presumption of truth with regard to the6g title is attached to the record‑of‑rights: It was held in Walayat etc. v. Allah Ditta. etc. (PLD 1981 Azad J&K54) that :‑ "Record‑of‑rights is not an instrument of title yet it is reliable pre sumptive piece of evidence to prove title, particularly when it is con tinuous and consistent for more than 40 years. A presumption of truth is attached to the record‑of‑rights. This presumption though rebuttable could not be ignored in absence of cogent, positive and confidence inspiring evidence." In this case the plaintiffs have clearly failed to adduce any cogent) evidence to rebut the consistent and continuous entries in the record‑of rights. On the other band from the evidence of the plaintiffs themselves is clear that Muhammad Bakhsh alias Bakhsha was major at the time of attestation of the mutation. Even otherwise it is proved that the entries in the record‑of rights have consistently been recorded in favour of the vendees/defendants for more than 40 years which evidence is sufficient, to prove title over the suit land of the defendants/vendees. 9. Though Civil Miscellaneous Petition No. 32 of 1983, petitioner Ghulam Hassan applied to this Court to make party to the civil revision those persons to whom some of the respondents detailed in the petition bad sold the property that had fallen to their share according to the judg ment of the District Judge, during the pendency of this civil revision. This application was allowed per order dated 17‑1‑1983. Abdul Qayum etc. through their counsel Haji Saadullah Khait Miankhel, Advocate had also moved a Civil Miscellaneous Petition No. 63 of 19 2 for impleadment as party to the instant civil revision as they were also transferred some of the property by the respondents mentioned in the petition. This application too was allowed vide order dated 5‑10‑1982. Haji Saadullah Khan Miankhel, Advocate addressed arguments on behalf of the petitioner in C. M. No. 63/82 and Syed Safdar Hussain argued the case of respondents in Civil Miscellaneous No. 32 of 1983. Under section 52 of the Transfer of Property Act during pendency in any Court have authority in Pakistan of a suit or proceedings in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so is to affect the right of any party thereto under any decree or order which might have made therein. The section is clear and in an unambiguous term places a bar on transfer of immovable property during the pendency of the suit or proceedings in any Court because once the jurisdiction of the Court is attached, it cannot be ousted by the transfer of the defendant's interest and in that event there would be no end to litigation a no justice would be defeated. In Pir Abdullah Shah v. Humayyun (P L D 1957 Lah. 1054) it was held that no interest which is created during the pendency of the suit can affect any decree passed in the suit. The actions of the respondents with regard to the transfer of certain property and the acceptance by the other side in the presence of a clear bar on such transfer under Transfer of Property Act was all at the risk of the concerned persons and the overt actions of certain respon dents in no way affect the rights of the petitioner in the suit property. Civil Miscellaneous Nos. 63 of 1982 and 32 of 1983 thus stand disposed off accordingly. 10. On the view of the matter that I take, I hold that the plaintiffs have failed to establish their case and the learned Senior Civil Judge rightly held that the suit was barred by limitation. Accordingly I accept this civil revision petition, set aside the judgment and decree of the learned District Judge, D. I. Khan and restore that of the Senior Civil Judge, D. I. Khan, with the result that the plaintiffs/respondents' suit stands dis missed. However, keeping in view the peculiar circumstances of the case I will allow the parties to bear their own costs. M. Z. M. Revision accepted.