2016 PLP 147 (CLCN)

ABDUL LATIF KHAN, J.

This judgment shall also dispose of the connected C.R No.45 of 2003 as both the revision petitions have been filed against a single judgment and identical questions of law are involved in both these petitions.

2. Brief facts leading to the instant revision petitions are that Muhammad Ayaz Khan and others, respondents/plaintiffs filed a suit for declaration to the effect that they are owners in possession of the suit land fully described in the heading of the plaint and the entries in the revenue record in' the name of defendant No.1 as owner is wrong as he has got no concern with the disputed property and Muhammad Nawaz Khan predecessor in interest of the plaintiffs and defendants Nos.8 to 13 was the owner in possession of suit land since 1921-22 and after his death, plaintiffs and defendants Nos.8 to 13 as his legal heirs have become owners in possession of suit land and the entries in the revenue record are liable to correction in their names instead of defendant No.

1. They also prayed for permanent injunction restraining the defendants Nos.1 to 7 from interference in the possession of the plaintiffs and defendants Nos.8 to

13. It has been averred in the plaint that Hakeem Khan, Naeem Khan and Abdur Rehman sons of Ghani Khan were entered as owners of the land measuring 314 kanals 09 marlas in the revenue record and on the spot the possession was with Hakeem Khan and Naeem Khan. In the year 1922, defendant No.1 Abdur Rehman was minor and the whole area was in possession of Hakeem Khan and Naeem Khan defendants Nos.2 and

3. Muhammad Nawaz Khan, the predecessor in interest of the plaintiffs and defendants Nos.8 to 13 purchased the whole property measuring 213 kanals 9 marlas from Hakeem Khan and Naeem Khan in person and on behalf of Abdur Rehman defendant No.1 but at the time of attestation of mutation as Abdur Rehman defendant No.1 was minor, therefore, the mutation No.359 attested on 30.7.1922 to the extent of Abdur Rehman defendant No.1 in favour of Muhammad Nawaz Khan was attested in column of cultivation and on the basis of said mutation, Muhammad Nawaz Khan became owner and after his death his legal heirs i.e. plaintiffs and defendants Nos.8 to 13 became owner in possession of the suit property and are getting benefit from it and the same entries are coming in jamabandi till 1966. Abdur Rehman, defendant No.1 has become major since 34/35 years but he had not objected on the ownership of Muhammad Nawaz Khan and after his death on the ownership of plaintiffs and defendants Nos.8 to 13 and nor he has interfered in their possession. In 1966 at the time of consolidation, the revenue officials entered property measuring 100 kanals 02 marlas in the column of ownership in the name of defendant No.1 and in this respect no notice was given to the plaintiff and defendants Nos.8 to

13. The defendants Nos.1, 3 to 6 contested the suit by filing their written statement while defendants Nos.14 to 22 submitted separate written statement. The learned trial court after framing issues from the divergent pleadings of the parties, recorded evidence of the parties, hearing arguments of learned counsel for the parties, decreed the suit of the plaintiffs vide judgment and decree on 11.3.2000. Mst. Ruqia and five others and Abdul Hakeem and others aggrieved from the judgment and decree of the learned trial court filed separate appeals before the learned appellate court. The appellate court after hearing arguments of the learned counsel for the parties, accepted the appeal of legal heirs of defendant No. 1 and dismissed the suit of the plaintiffs whereas dismissed the appeal of objectors Abdul Hakeem and others vide judgment and decree on 30.11.2002, hence the instant revision petitions.

3. Learned counsel for the petitioners contended that the plaintiff Ayaz and others, sons of Muhammad Nawaz Khan, challenged the entries made in the revenue record in the name of Abdur Rehman on the ground that the same are not correct for the reason that mutation No.359 attested on 30.7.1922 on behalf of Naeem Khan, Hakeem and Abdur Rehman in favour of their father Muhammad Nawaz Khan in column of cultivation, in respect of land measuring 314 kanals 09 marlas but the appellate court has wrongly appreciated the evidence in this respect. He contended that Abdur Rehman, who was minor aged about 5/6 years at the time of attestation of mutation in the year 1922 and mutation on his behalf was attested by his two brothers namely Naeem Khan and Hakeem Khan, became major in the year 1932-33, the predecessor of the petitioners and the petitioners despite the fact that the possession over the property remained with the petitioners. He contended that the petitioners and their father remained in possession as purchaser and never paid any produce to the said Abdur Rehman despite the entry in his name in the column of ownership but he has kept mum which shows that he had surrendered in favour of petitioners regarding the rights of ownership as well as possession over the suit property. He contended that the entry in the name of said Abdur Rehman in the column of ownership incorporated during the settlement proceedings but the said Abdur Rehman had taken no action against the petitioners regarding possession over the suit property. He referred to sections 6, 7 and 18 of the Limitation Act and argued that Abdur Rehman had sought any redress within time against the petitioners and as such a right accrued in favour of the petitioners.

4. Learned counsel appearing on behalf of the Mumtaz Khan and others petitioners in C.R. No.45 of 2003 contended that the mutation No.359 attested on 30.7.1922 was no doubt attested during the minority of the said Abdur Rehman, however, the brothers of Abdur Rehman being legal guardian had the authority, as provided under section 362 of the Muhammadan Law, guardianship of person and property, as the father of Abdur Rehman was under debts at the time of his death and the said mutation was attested for purpose to satisfy the debts outstanding against their father. He contended that the other two brothers who had sold their share as well as the share of the minor Abdur Rehman through disputed mutation No.359, had accepted the same as correct and their share is not disputed in the instant matter. He contended that the possession of the suit property is admittedly with the petitioners and argued that the petitioners are not bound to produce any evidence because they have challenged scheme 27 and the mutation is itself, an evidence in their favour.

5. As against that, the learned counsel for the respondents contended that the consent of the minor was not available in respect of attestation of mutation No.359 attested on 30.7.1922 as he was aged about 5/6 years at that time. He vehemently rebutted the version that the mutation was attested to satisfy the debts outstanding against the father of Abdur Rehman and others. He contended that other two brothers were not party to the instant suit neither arrayed as defendants nor produced as a witness to justify the claim of the petitioners that the said mutation was attested for the purpose to satisfy the debts outstanding against their father. Even Abdur Rehman, who appeared as DW-1 has not been confronted with this situation as to whether the mutation was attested to satisfy the debts outstanding against his father. He forcefully rebutted the allegations of the petitioners by arguing that when father of Abdur Rehman died, how much debts was outstanding against. him, by whom and when the same was released, are the questions which are still in mystery and the petitioners of both the revision petitions failed to prove their case and for this very reason the appellate court has dismissed their claims and rightly done so and the instant revision petitions are also liable to be dismissed.

6. I have heard the arguments of learned counsel of the parties and perused the record, in the light of which my discussion is as under.

7. The perusal of the record shows that statedly mutation No.359 attested on 30.7.1922 on behalf of Abdur Rehman and his two brothers, during his minority, when he was only aged about 5/6 years. The other two brothers namely Naeem Khan and Hakeem Khan had attested the same on behalf of Abdur Rehman but no consent of the minor was available for the transfer of his share. Later on at the time of settlement, revenue officer excluded his share from the mutation and rightly did so for the simple reason that he was admittedly minor at that time and no transaction on his behalf can be made due to his disqualification to enter into any contract during the minority.

8. Section 11 of the Contract Act, 1872 is reproduced for ready reference:- "

11. Who are competent to contract.

Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject." The bare reading of this section suggest a general rule that only those persons who are competent to enter into a contract having the age of majority in accordance with law to which he is subject and is not disqualified to enter into any contract, could do so, otherwise not. In the instant case admittedly Abdur Rehman was aged about 5/6 years and being minor, sale on his behalf can in no eventuality be termed as a valid sale. The exclusion of name of Abdur Rehman from mutation and the entry in his name in the column of ownership clearly shows that his share remained intact and no sale took place through this mutation, so for his share is concerned.

9. The plea of the petitioners, in both the revision petitions that the mutation was attested to satisfy the debts outstanding against his father was not proved by the petitioners. The perusal of plaint reveals that no such plea has been taken and the contents of the plaint are silent to this effect. A passing by, remarks given by the plaintiffs in their statement supported by no other evidence to this effect which cannot be taken into consideration for the simple reason that any contract or transaction entered into with minor is void, ab initio because minor cannot consent to create any binding effect of contract and the sale being unauthorized, does not bestow any legal right upon beneficiary of mutation. Even the father of the minor had no authority to get a mutation attested against the consent of minor what to talk of the brothers who had not at all clothed with any authority under any provision of any enactment to transfer the property of the minor in favour of the beneficiaries, except with the prior permission of court, in certain cases. The transaction made on behalf of the minor cannot even be ratified later on for the reason that the same void, ab initio creates no right and minor cannot be burdened with the liabilities. The provisions of section 362 of Muhammadan Law are not attracted in the instant case and the plea of the petitioners to this extent is misconceived.

10. So far as the possession over the suit property is concerned, admittedly the same lies with the petitioners who were inducted into possession by two elder brothers of the minor Abdur Rehman, get the mutation attested on his behalf, during minority, but the ownership remains with the minor to the extent of his share measuring 100 kanals 02 marlas, which is disputed property in the instant case, but being joint property, owned jointly, beneficiary of the share of the other two brothers could not have claim exclusive possession under the law and they being joint owner with the said Abdur Rehman, all being co-sharer are supposed to be in possession of the property because the possession of one co-sharer is legally considered to be the possession of others and no co-sharer can be allowed to claim exclusive possession until and legal partition took place between the parties, which is not admittedly carried out in the instant case. In order to prove their possession excluding Abdur Rehman (the then minor) no iota of evidence is available on file as no positive evidence has been produced to this effect and as such mere non-enjoying the benefits of the property by the minor for any length of time would not accrue any cause of action in favour of the plaintiffs. As no contract can be enforced against the minor, hence cannot be sued upon. No plea of estoppel or bona fide purchase or even non-claim upon attaining the majority of minor would be available to the beneficiary to defect the document as the same gives no valid title to the transferee.

11. The amount of debts allegedly adjusted by the beneficiary as pointed out by the petitioners, has not been proved through any positive evidence. Even quantum of amount is still not certain as the entire file is silent about it. Moreover, even the existence of debt against the father of the minor is not proved on record as no body uttered a single word in this respect in the evidence and to whom it is paid, is also still in mystery. This being the only ground raised by the petitioners to justify the transfer on behalf of the minor, stands unproved on the record.

12. The plaintiffs have filed the instant suit in the year 1972, challenging the mutation attested on 30.7.1922 i.e. after about 40 years, without any explanation as to why he kept mum for such a long period knowing the fact that the name of Abdur Rehman (the then minor) has since been recorded as in the column of ownership and the said entry being contrary to the mutation attested in their favour ought to have been challenged within 6 years as provided under section 120 of the Limitation Act, but the predecessor of the plaintiffs and then the plaintiffs failed to do and as such the instant suit is hopelessly time barred. Moreover, during the life time, father of the plaintiffs, Muhammad Nawaz, he has not challenged the transaction which shows that he accepted the situation that the share of Abdur Rehman, minor, was rightly excluded from the incorporation of entry on the basis of disputed mutation at the time of settlement. Admittedly, the other two brothers, whose share was transferred by dint of the disputed mutation, were not produced in support of mutation nor the mutation otherwise proved by producing the witnesses including the officials of revenue i.e. Tehsildar and Patwari who are important entities and if by afflux of time for any reason they are not available, those acquainted with their writing and signatures ought to have been produced, as the burden heavily lies upon the beneficiary to prove that the mutation was validly attested. In the instant case as the share of the minor is only disputed, therefore, no positive evidence to this effect must have been produced to the extent of consent of the minor and valid attestation of mutation nor serious efforts to this effect has been made by the petitioners. The defendants have straight away refused the entry and execution/attestation of any document/mutation in favour of petitioners. DW-1 Abdur Rehman (the then minor) appeared in support of his written statement, who was not confronted with in respect of all the pleas/objections raised by the petitioners. The entries in revenue record has got a presumption of truth attached to it, which is being repeated since 1922 and later on 1972 and to rebut the same strong cogent and convincing evidence is required, which is not available in the instant case, and as such the petitioners/plaintiffs were rightly non-suited through impugned judgment and decree.

13. For the foregoing reasons, both the revision, petitions being without any substance, are hereby dismissed with no order as to costs. ZC/494-P Revision dismissed.