P L D 1963 (W (PLP)

This revision petition is by the plaintiff Mashal Khan and had been originally filed as a further civil appeal bearing No. 149 of 1960, before the promulgation of Central Ordinance No. XLIV of 1962. His suit was for possession of a site underneath a house occupied by the respondent No. 1 Fazal Karim, and also for the recovery of Rs. 180 on account of price of khakshora for a period of three years, in respect of the same site. The learned trial Judge decreed the plaintiff's suit to the extent that he would be entitled to possession of the house on payment of Rs. 1,282 to the respondent Fazal Karim as compensation for the superstructure. His claim for the recovery of Rs.180 as the price of the khakshora was, however, dismissed. The plaintiff went up in appeal seeking the amend ment of the decree so as to include the recovery of Rs. 180 as well, whereas defendant Fazal Karim appealed to have the decree for possession obtained by the plaintiff set aside. The two appeals were heard by Mr. Muhammad Shafiq Khan, Additional District Judge, Peshawar. He dismissed the plaintiff's appeal, and accepting the appeal of defendant Fazal Karim, he dismissed the plaintiff's suit with costs throughout. Hence the present petition by the plaintiff.

2. The facts of the case are intriguing, and we have to go back to the year 1934, in order to trace the history of the site in question. In the year 1934, one Taj Muhammad (who has appeared as plaintiff's witness at the trial) was serving as a Process Server at Charsadda, and Umar Din defendant was serving as a candidate process server. Taj Muhammad used to borrow money occasionally from Umar Din and the debt ultimately stood at Rs.

200. Taj Muhammad hit upon a clever device to pay this debt. He decided to sell the site under a house occupied by the defendant Fazal Karim, who was then minor, to Umar Din and Fazal Karim for a sum of Rs. 250 and for this purpose a registered sale deed was executed on the 22nd of October 1934. A copy of this sale deed is Exh. P.

7. It may be mentioned that Umar Din and Fazal Karim are first cousins, and further, Fazal Karim's sister is married to Umar Din, it has been alleged by Fazal Karim that the site was a part of shamilat land, and Taj Muhammad had no right or title in it, and could not have sold it. However, having sold the site, Taj Muhammad instigated his own cousin and relative Mashal Khan, plaintiff petitioner, to file a pre‑emption suit. Mashal Khan agreed and accordingly filed Suit No. 284/1 in the Court of Sub- Judge, Charsadda on the 24th of October 1935, and obtained a decree on the 17th of February 1936. It is on the basis of this decree that Mashal Khan claims to be the owner of the site.

3. The proceedings in the pre‑emption suit instituted by Mashal Khan were rather unusual. As Fazal Karim defendant was a minor and his father was not alive, he was sued through his mother Mst. Katorai, and a prayer was made that she be appointed as his guardian‑ad‑litem. Summonses were issued to Mst. Katorai, but she was not personally served, with the result that on the 21st of January 1936, the trial Court ordered substituted service, and adjourned the case to the 10th of February 1936. On that date Mst. Katorai did not appear and instead defendant Umar Din, who was also a co‑vendee with the minor Fazal Karim appeared in the Court and applied that he be appointed as a guardian‑ad‑litem of the minor. The application was accepted, and he was appointed, as the guardian. No notice was sent on Umar Din's application to the minor or to his mother Mst. Katorai as required by rule 3 of Order XXXII of the Civil Procedure Code. Umar Din did not file any written statement on behalf of the minor. However, in his own written statement he had raised the plea that the suit was barred by time, as it was filed on the, 24th of October 1935, whereas the sale‑deed had been registered on the 22nd of October 1934. When the pre‑emption suit came up for hearing on the 17th of February 1936, defendant Umar Din applied for permission to compromise the suit with the pre emptor Mashal Khan. The Court granted permission to file the compromise, which was done on the same day. The compromise was accepted and a decree in terms of the compromise passed on that very date viz. the 17th of February 1936. The terms of the, compromise, in so far as they are material in the present context, were that the sale price was fixed at Rs. 190 the pre emption right of Mashal Khan was accepted as being superior to that of the vendees, and it was conceded that the superstructure on the site had been built by the vendee Fazal Karim at his own expense, and that he will continue to be the owner of the malba. Further, it was agreed that the site will remain mort gaged with the vendees for a sum of Rs. 190 and the plaintiff pre‑emptor will execute a separate mortgage‑deed with possession in favour of the vendees, within one month of the decree. It was stipulated that if the plaintiff did not execute the mortgage deed and get it registered within one month's time, then he shall deposit the pre‑emption money in Court.

4. Purporting to act in accordance with the compromise, the plaintiff Mashal Khan executed a mortgage--Aced Exh. P. 2 in favour of Umar Din alone on the 13th of March 1936. This mortgage was redeemed by Mashal Khan on the 27th of November 1944, by paying Rs. 190 to Umar Din alone. It was alleged by Mashal Khan that since that date the two defendants, namely, Fazal Karim and Umar Din continued to occupy the house as his tenants, but two or three years before the institution of the present suit on the 10th of October 1958, they refused to attorn to him and hence he was obliged to sue for possession of the site. Only Fazal Karim defendant contested the suit.

5. One more fact may be stated, namely, that on attaining majority Fazal Karim defendant‑respondent came to know that the house in question had been described by the Excise and Taxa tion Department as the property of Mashal Khan. He filed an objection petition which was heard by Khan Bahadur Khan, Excise and Taxation Officer who, after examining Taj Muhammad, Mashal Khan and Umar Din, came to the conclusion that fraud had been practised upon Fazal Karim and that the house really belonged to him. He directed the necessary amendments in the record of the Excise and Taxation Department by his order dated the 12th of November 1955, a copy of which is Exh. D. 5.

6. On the pleadings of the parties a large number of issues were framed by the learned trial Judge, Shah Abdur Rashid Khan, as follows : (1) Whether plaintiff is owner of the suit house and defend ants are tenants, if so, what is the price of khakshora of the suit period ? (2) Wether the suit is within time? (3) Wether defendant No. 2 is in adverse possession for more than 12 years ? (4) Whether plaintiff is estopped from suing? (5) Whether the suit is properly valued ? (6) Whether the suit is barred under section 47, C. P. C. (7) Whether defendant No. 2 has made any improvements, if so, to what extent with what effect (8) Whether the suit is competent in its present form ? (9) Whether plaintiff has a cause of action ?

7. The learned trial Judge came to the, conclusion that by virtue of the compromise decree obtained by the plaintiff Mashal Khan on the 17th of February 1936, he bad become the owner of the site, that the possession of the two defendants Umar Din and Fazal Karim was permissive in nature, that the suit of the plaintiff was within time, and that he was not estopped from suing.

8. The learned Additional District Judge came to a contrary conclusion on the question of ownership of the site, holding that the compromise decree was a nullity in the eye of law, for the reason that the provisions of Order XXXII, rule 3, Civil Procedure Code, were not complied with in the matter of the appointment of Umar Din defendant as guardian‑ad‑litem of the minor Fazal Karim. He also observed that the compromise decree was not fully acted upon, for the mortgage deed was executed by Mashal Khan in favour of one of the vendees alone, namely, Umar Din, and that subsequently the mortgage money was also paid to that vendee alone, and the minor Fazal Karim was left out altogether. The‑learned Additional District Judge also considered that the plaintiff had failed to show that the possession of Fazal Karim defendant was permissive, and that he had been in possession of the site within 12 years of the institution of the suit. Finally, the appellate Judge expressed the view that the plaintiff was estopped from suing.

9. In the present petition Mr. Abdul Latif Khan, the learned counsel for the plaintiff petitioner Mashal Khan, has challenged the findings of the learned Additional District Judge on issues 1, 2, 4 and

9. The first question to be determined in this case is whether the plaintiff is the owner of the site in question. It has already been stated that he has based his claim on the compromise decree obtained by him in the pre‑emption suit on the 17th of February 1936. The question is whether this decree is a nullity for the reason that the minor was not properly represented in the proceedings leading to that decree.

10. The proved facts are that the contesting defendant Fazal Karim was a minor on the date of the institution of the suit, and that originally he was sued through his mother Mst. Katorai, who was also, however, not served. It was for the plaintiff pre‑emptor to move the Court for either making a further effort for serving the mother of the minor, or to make a fresh applica tion naming some other person for appointment as guardian ad‑litem of the minor. No doubt the Court ordered substituted service against the mother, but curiously enough the defendant Umar Din made an application for his own appointment as guardian‑ad‑litem of the minor. It is further, proved that no notice was issued regarding Umar Din's application to the minor or to his mother and instead the application was accepted the same day.

11. Rule 3 of Order XXXII of the Civil Procedure Code, which has a bearing on the question before us, is in the following terms :‑ "3. (1) Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. (2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff. (3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed. (4) No order shall be made on any application under this rule except upon notice to the minor and to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or other natural guardian of the minor, or, where there is no father or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub‑rule. (5) A person appointed under sub‑rule (1) to be guardian for the suit for a minor shall, unless his appointment is termi nated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and any proceedings in the execution of a decree."

12. As already stated there has been non‑compliance with the provisions of sub‑rule (2) as well as sub‑rule (4) quoted above inasmuch as, Umar Din was appointed guardian‑ad‑litem not on the application of the minor or of the plaintiff, but on his own application as a defendant, and further that no notice was served on the minor or his natural guardian, namely, his mother.

13. Mr. Abdul Latif Khan, the learned counsel for the plaintiff petitioner contended that the failure of the trial Court to strictly comply with the provisions of Order XXXII, rule 3 was only an irregularity which was curable under section 99 of the Civil Procedure Code, particularly because no prejudice was caused to the minor Fazal Karim, for the reason that he was adequately represented by his co‑vendee Umar Din, who was also his cousin and brother‑in‑law, and whose interest in the matters in controversy in the pre‑emption suit was identical with that of the minor. In order to support his contentions, the learned counsel has relied on several authorities which may be briefly noticed.

14. In Har Gobind and another v. Gitam and others (A I R 1929 All. 346) it was observed that The minority of the defendants at the time of prior decision does not preclude the operation of res judicata against them provided that some of the defendants had identical interests with theirs. In that case two minor defendants had raised a plea that they were not bound by a decree in a former suit to which they were not parties, but it was resisted by their elder brothers and their uncle. Dealing with this aspect of the matter the learned Judge observed that "It is reasonable to suppose that the elder brothers of two minors who have identical interest with the minors will adequately represent them in a suit asking for a declaration as to the title of other people in property to which the minors must have a title if the defendants have a title and in which the minors can have no interest if the actual defendants have no interest."

15. In Profalla Kumar Sen Gupta and another v. Behari Lal Sen Gupta and others (A I R 1936 Cal. 247), the proposition was laid down that "it is important that Courts should follow strictly the rules laid down for representation of minors, but it is quite another thing to say that a defect in following the rules is necessarily fatal to the proceedings." In that suit the minors were represented by their natural guardian, namely, their surviving parent, the mother, and notice to the minors and their mother was duly served. The mother did not choose to defend the suit but the defence was adequately con ducted by the minors' uncle who was also a defendant. The defect in the representation of the minor had not in fact affected the merits of the case. It was held that the minor were not entitled to set aside the decree.

16. In Krishnadas Padnamabhrao Chandavarkar and another v. Vithobe Sinnappa Shaiti and others (A I R 1939 Bom. 66), a Full Bench held that "gross negligence apart from fraud or collusion on the part of the next friend or guardian‑ad‑litem of a minor litigant cannot be made the basis of a suit to set aside a decree obtained against him." It is clear that this authority has no application to the present case, as we are not dealing with an allegation of gross negligence on the part of a properly constituted guardian‑ad litem.

17. In Barodaprosad Sukul v. Sahanlall Boid and others (A I R 1937 Cal. 658), the view was expressed that "the main object of Order XXXII, rule 3, Civil P. C., is to ensure that minor defendants are adequately represented in suits which may be instituted against them. It may well be that circumstances may arise in connection with a particular suit, which would be sufficient to satisfy the Court that a person who had applied to be appointed as guardian of a minor defen dant was really a proper person to be the minor's guardian for the suit within the meaning of Order XXXII, rule 3 (1), and if it was clearly in the interest of the minor that such person should be appointed forthwith without issuing the notices upon the minor or upon his natural guardian, to which reference is made in Order XXXII, rule 3 (4), it might be held that failure to serve such notices would merely amount to an irregularity."

18. Finally, reference was made to Saadullah Khan and others v. Kaki Jun and others (P L D 1962 Pesh. 171), in which a learned Judge of this Court held, following A I R 1929 All. 346, to which a reference has already been made, that the minority of the defendants at the time of prior decision does not preclude the operation of res judicata against them provided that some of the defendants had identical interests with theirs, and a decree once obtained can only be set aside on the ground of fraud, and it cannot be set aside on the ground of mistake. But in the same judgment the learned Judge observed earlier as follows :‑ "It is well established principle of law that a decree passed against a minor, who was not duly represented, has not binding force against him." Having made these observations, the learned Judge, however, proceeded to say that in the case before him there was material on the record to show that the minors were duly represented. It seems to me, therefore, that this case is of no direct assistance to the petitioner.

19. Mr. Pir Bakhsh Khan, on the other hand, relied on a large number of authorities in support of the proposition that where the provisions of Order XXXII, rule 3, sub‑rule (4), C. P. C., are not observed, the decree is one passed without jurisdiction. For instance in Rajendra Prasad and another v. Prabodh Chandra Mitra and others (A I R 1921 Pat. 25), it was held that where a guardian‑ad‑litem was appointed upon the application made by the plaintiff and no notice of that application was served upon the minors or upon the guardian whom it was proposed to appoint, the order was without jurisdiction.

20. In Ram Rekha Singh and others v. Ganga Prasad Mukaraddhwaj and others (A I R 1926 All. 545), a Full Bench held that "mere irregularities in the appointment of the guardian‑ad -litem who allowed the suit to proceed ex parte, do not entitle the minor to reopen the decree unless he can satisfy the Court that he has been prejudiced and deprived of some good defence which was open to him."

21. In Mst. Siraj Fatima and others v. Mahmood All and others (A I R 1932 All, 293), it was observed that the real basis of the binding character of a decree against a minor is the fact of his having been duly represented by a proper person, and not the mere existence of any formal order appoint ing a guardian for him. Even when there be such an order, if the guardian does not properly represent him, the decree would not be binding. On the other hand, even if there be any defect in the formal appointment of a guardian, the decree would be binding upon him, if he is sufficiently represented and his interests are well protected. Even where a guardian has been formally appointed, but he is grossly negligent in his duties, he ceases to represent the minor properly and effectively, and the result is the same as if no proper guardian had been in exist ence. It is the duty of the Court to see that the guar dian appointed is a proper person who would safeguard the interest of the minor. If therefore the guardian ceases to take any interest in the case or is grossly negligent so as to sacrifice the interest of the minor, it cannot be said that the minor is still properly represented in the litigation, wilful and wanton neglect on the part of the guardian disqualifies him. This also therefore appears to be a basis on which the avoidance of a decree against the minor can be allowed.

22. In Mst. Barkat Bibi v. Muhammad Amin and others (A I R 1932 Lah. 521) it was held that where the Court appointed the Reader of the Court to conduct the case of a minor defendant, but no notice was sent to the minor, nor to the Reader, no guardian‑ad‑litem was appointed for the minor, and the decree passed was not binding on him.

23. Dwarika Halwai v. Sital Prasad (A I R 1940 All. 256), the view was expressed that "even where there was an order appointing a person as guar dian, if that guardian did not properly represent the minor, the decree would not be binding on the minor. Such a decree would be void ab initio and not merely voidable."

24. It will be seen that the consensus of judicial authorities appears to be that the provisions of Order XXXII, r. 3, C. P. C., regarding the representation of minor litigants, should normally be applied strictly, but any failure to comply with them is an irregularity which is curable, provided no prejudice has been caused to the minor, and his interests were duly repre sented by the irregularly appointed guardian‑ad‑litem or by some other defendants who had identical interest with the minor in the matters in controversy in the suit. But if it is found that the minor has been prejudiced, then it must be held that he was not duly represented in the proceedings, and accordingly he cannot be regarded as a party to them, with the result that any order or decree passed therein would not be binding on him. Such a decree or order would be a nullity in the eye of law, as having been passed without jurisdiction against person who was not a party before the Court.

25. It was, however, contended by Mr. Abdul Latif Khan that even if it be held that the minor has been prejudiced due to the non‑compliance with the provisions of rule 3 of Order XXXII of the C. P. C., it was still necessary for the minor to have the decree set aside, before any impediment created by such a decree in the way of the minor can be removed. In this behalf the learned counsel referred me to Muhammad Bakhsh v. Allah Din (A I R 1942, Oudh 33), in which it was laid down that "no doubt a minor on attaining majority can sue to set aside a decree obtained against him on the ground of his guardian's negligence, but it is not open to him to assume such neglig ence and to treat the decree as void on that ground and ignore it. Where there is a properly appointed guardian‑ad‑litem and a decree has been passed by a duly constituted Court, it must be presumed that there was justification for it, and the presumption can only be rebutted in a suit brought with that object, and the existence of a flaw in the appointment of a guardian, resulting in the minor not being properly represented, being one thing, the negligence of a properly appointed guar dian being quite another."

26. It will be seen that the authority relied upon by the learned counsel does not support him at all. On the contrary a clear distinction is drawn by the learned Judges between a case where there is a flaw in the appointment of a guardian resulting in the minor not being properly represented, and a case where only negligence is alleged on the part of a properly appointed guardian. If in a case the provisions of Order XXXII, rule 3, C. P. C. are not complied with, and the failure to comply with them has caused prejudice to the minor, with the result that it is held that he is not duly represented, it is clear that this is not a case of mere negligence of a properly appointed guardian. The judgment relied upon by Mr. Abdul Latif Khan clearly supports the view that in the case of a flaw in the appointment of a guardian the decree is to be regarded as a nullity for the reason that the minor was not duly represented.

27. The learned counsel then referred to (Hazi Munshi) Fazlu‑uddin Muhammad v. Khatra Ghorai and others (A I R 1926 Cal, 617) in which it was held A transaction tainted with fraud is voidable and not void. A decree obtained by fraud, collusion or any other unlawful means is a pronouncement of a Court of Justice, and it cannot be treated as a waste paper. The only objection that can be made to a decree as being void or a nullity must be on ground that it was passed without jurisdiction or that the Court which passed it had no territorial or pecuniary jurisdiction over the subject‑matter of the suit. It will be seen that this decision also has no direct bearing on the question we are considering, for the instant case is not one of fraud or collusion but one dealing with the question whether a minor is duly represented before the Court or not. On that point even this authority lends support to the proposition that where a minor is not duly represented, the decree must be regarded as a nullity, for in that case it can be said that the Court had no jurisdiction to pass a decree against a person who was not a party before it.

28. Mr. Abdul Latif Khan next referred to Sher Muhammad v. Dost Muhammad and others (A I R 1935 Lah. 44), in which it was observed thus,

"so long as decree subsists against a party, it is perfectly valid and can be availed of by the persons interested in every manner that is possible, notwithstanding the fact that the party against whom the decree stands was a minor at the time of the passing of the decree. The only way the law contemplates the protection of the minors against the dishonesty of their guardians is by permitting the minors to challenge the decrees obtained against them and to have them set aside on proof of their guardians' dishonest, or fraud, and unless that is done a minor cannot be allowed to wriggle out of the decrees passed against him, or deprive the successful litigants of the valuable rights they have obtained on the basis of that decree." Here again it will be seen that the dictum proceeds on the assump tion that the guardian was duly appointed but acted negligently or fraudulently. This case does not deal with the effect of non compliance with the provisions relating to the appointment of guardians‑ad‑litem.

29. Lastly, the learned counsel for the petitioner referred to Indar Saln v. Prabhu Lall and others (A I R 1922 Lah. 277), in which it was held that "when a minor is a party to the case and the decree is issued against him; unless he has been entirely unrepresented, the decree, so long as it stands, is not invalid, but can, if at all, be only voidable at the instance of the minor." It seems to me that in this case also the implication is clear that if the minor is not duly represented in the proceedings the decree will be a nullity and not merely voidable

30. As a result of the examination of the authorities cited by Mr. Abdul Latif Khan, no doubt is left in my mind that once it is held that the minor was not duly represented in the proceedings which culminated in a decree or order against him, the decree must be regarded as a nullity or void, and not merely voidable at the instance of the minor on attaining majority. The authorities have clearly, and, if I may say so with respect, rightly, drawn a distinction between the case where a duly appointed guardian of the minor acts negligently or fraudulently, and a case where it cannot be said that there was any duly, appointed guardian. In the former case the only course open to the minor is to have the decree set aside, but in the latter he is entitled to regard the decree as a nullity and not binding on him. He need not sue to have it set aside.

31. Now, in the present case there is no doubt that Umar Din who was appointed guardian‑ad‑litem of the minor Fazal Karim without proper compliance with the provisions of sub rule (4) of rule 3 of Order XXXII, C. P. C., was a co‑vendee with the minor, and his interest was ostensibly identical with that of the minor, but his conduct clearly shows that he did not act honestly in the interest of the minor. In the first place, he, according to his own statement at the trial, was acting fraudu lently with a view to recovering his debt from Taj Muhammad, and secondly, although he asserted in his written statement that the pre‑emption suit was time‑barred by two days, he readily agreed to compromise the suit after having been appointed as guardian‑ad‑litem for the minor Fazal Karim. Mr. Abdul Latif Khan argued that it may be that the Courts were closed for those two days and therefore, the suit could hot be filed within one year of the date of the registration of the sale deed, but he could not support this assertion from the file of the pre‑emption suit in question. It is, therefore, equally possible that the suit was in fact time‑barred, and in compromising a time‑barred suit, which deprived the minor of valuable rights in the land on which his house stood, it cannot be said that Umar Din was acting in the interest of the minor. We also find that in pursuance of the compromise decree obtained by Umar Din, the mortgage was executed only in his name, and not jointly with the minor ; and finally the endorsement on the mortgage deed shows that the mortgage amount of Rs. 190 was also received by Umar Din alone and nothing was paid to Fazal Karim. All these circumstances clearly point to the conclusion that Umar Din was acting solely in his own interest, regardless of the interest of the minor, with the result that it must be held that the minor was seriously preju diced due to non‑compliance with the provisions of sub‑rule (4) of rule 3 of Order XXXII, C. P. C. It further follows that in these circumstances it is clear that the minor cannot be regarded as having been duly represented in the pre‑emption suit. The decree passed in that suit is, therefore, not binding on him, and must be regarded as a nullity as against him. On this view of the matter, it is clear that the plaintiff‑petitioner Mashal Khan did not acquire any rights of ownership in the site in question.

32. Apart from the question of representation of the minor, I also find that the provisions of rule 7 of Order XXXII, C. P. C., were not fully complied with by the Court which tried the pre‑emption suit, inasmuch as the Court gave permission only or, an application to the effect that compromise be allowed, without seeking the terms of the compromise and applying its mind thereto, so as to ascertain whether the compromise was in the interest of the minor or not. It has already been stated that even the compromise decree was not fully implemented, as the mortgage which was to be executed by Mashal Khan within one month was to be in favour of both the vendees, namely, Umar Din as well as Fazal Karim minor, but instead the mortgage actually executed on the 13th of March 1936, was in favour of only Umar Din. As this was one of the terms of the compromise that the mortgage shall be executed within one month in favour of both the vendees, it is clear that there has been failure on the part of Mashal Khan to abide by the terms of the compromise, and thus the decree did not become fully effective. On the contrary, it became necessary for Mashal Khan to deposit the pre‑emption money in Court as he bad failed to execute a mort gage deed in favour of both the vendees. For this reason also I am inclined to hold that the compromise decree did not acquire legal effect.

33. On the finding that the compromise decree is of no legal effect as against the defendant Fazal Karim, it is not really necessary to go into the other issues raised before me. However, as the question of limitation was argued at some length by Mr. Abdul Latif Khan, I may briefly refer to the contentions raised in this behalf. It was contended that in 1936, both the vendees, namely, Umar Din and Fazal Karim became mortgagees in possession under the petitioner Mashal Khan, and therefore, until the 27th of November 1944, when the mortgage was redeemed by the plaintiff, the two defendants obviously remained in permissive possession, and since that day they have continued as tenants of Mashal Khan on payment of the usual khakshora. To support the plea of tenancy reliance was placed on oral evidence. The plaintiff himself of course asserted this position at the trial and he was supported on this point by Shahi Khan and Haider Khan, who are both his relatives and clearly interested in him. As against these two witnesses Umar Din and Taj Muhammad i.e., the two main actors in this episode, went against the plaintiff. It was contended by Mr. Abdul Latif Khan that the plaintiff was not bound by the evidence of these two persons, as he was compelled to call them as his witnesses, so as to prove the origin in his ownership. In this connection the learned counsel cited Ram Nandan Rai and another v. Tileshar Rai and others (A I R 1937 All. 764) and Jalal Din and another v. Nawab and others (A I R 1941 Lah. 55). Even if I agree with the learned counsel that the plaintiff is not bound by the adverse testimony of his own witnesses, the fact remains that no reliance can be placed even on his own witnesses for the reason that they are interested. The result is that there is no acceptable evidence to show that both the defendants, or at any rate, the contesting defendant Fazal Karim became a tenant of the plaintiff in 1944. On the contrary, it is admitted that the superstructure had been built by Fazal Karim's father in 1929, and since then the family has continued in uninterrupted occupation of the site. Fazal Karim was not the mortgagee from Mashal Khan and even if Umar Din was living in the same house with Fazal Karim, on which point there is no satisfactory evidence and in fact there is a streneous contradiction by Fazal Karim, there is no presumption that after the mortgage was redeemed, Fazal Karim did not continue in possession on account of the assertion of his own title. The learned Additional District Judge has, therefore, rightly remarked that even if the time is counted from the redemption of the mortgage, the present suit was filed by Mashal Khan after a lapse of more than 12 years. The suit, therefore, is clearly barred by time.

34. For the reasons given above, the revision petition fails and is dismissed with costs. K. B. A./A. H. Petition dismissed.