P L D 1969 Peshawar 161 (PLP)

4. Mr. Nazir Ahmad Swati, Civil Judge, in his report, dated 14‑10‑1963, recorded the following finding :‑ "That the suit house had been in the possession of the plaintiff till 1958, when the defendants took over the possession from Hakim Khan by means of coercion, persuasion or collusion." On issue No. 2 in paragraph 6 of the report, he said : "As a sequel to my above view and in continuation of the same, I am of the opinion that the plaintiff was dispossessed of the suit house in 1958, when his tenant Hakim Khan had been firstly coerced or persuaded to write a rent‑deed in favour of the defendants and then the defendants took over the possession of the suit house in 1958."

5. Agha Khan Baba Khan, District Judge, after the receipt of the report, by his judgment dated 2‑11‑1963, accepted the appeal, set aside the judgment and decree of the trial Court and granted a decree for possession in favour of the plaintiff and left the parties to bear their own costs. The learned District Judge in paragraphs Nos. 8, 9 and 10 recorded the finding, (1) that on the evidence be had formed the opinion that the plaintiff remained in possession of the house in suit up to 1958, and thus acquired adverse possession, and (2) that the right of the minor was extinguished by the operation of section 28 of the Limitation Act in that they had not instituted a suit after attaining the age of 24 years. It will be convenient here to and reproduce what the learned Appellate Court said on the point It can be safely inferred that Abdus Sattar was born somewhere in the end of year 1926 and Abdul Ghaffar was born in the end of 1928. Let me take the maximum period in favour of the minors which is 1928. They should have brought a suit for possession within 24 years of year 1928, i.e. 20 years of attaining the age of majority and three years the period of limitation provided to them. Therefore, defendants Nos. 1 to 3 should have brought a suit for possession of the said house at least in the end of year 1952. But as no such suit for possession was brought within the prescribed period, therefore, all the minors extinguished their right in the property under section 28 of the Limitation Act. The appellants feeling aggrieved have come up on second appeal.

6. Two points were urged on behalf of the appellants (1) that the finding of the learned Appellate Court that the plaintiff had acquired adverse possession could not be sustained, and (2) that the learned Appellate Court had misinformed itself in law by holding that the right of Abdus Sattar and Abdul Ghaffar minors to the property had been extinguished after they bad failed to institute a suit after attaining the age of 24 years in view of the provisions of section 28 of the Limitation Act.

7. Mr. Zahurul‑Haq, learned counsel for the appellants, forcefully emphasized to distinguish between a case, where minors after attaining majority instituted a suit to challenge the sale made during their minority by an unauthorised guardian and a case where the minors were defendants in a suit instituted by the plaintiffs to enforce a sale effected during their minority by an unauthorised agent, and contended that in the former case, section 28 of the Limitation Act would be attracted, but not, in the latter case which would be governed by Article 144 of the Limitation Act. To put it in different words, section 28 of the Limitation Act would be attracted where minors were plaintiffs in a suit to challenge the transfer by an unauthorised guardian, and it did not apply to the defence put forward by the minors in a suit to enforce the transfer against them. Reliance was sought on the following two authorities in support of this view :‑ (1) Lalit Kumar Das Chaudhury and others v. Nogendra Lal Das and others A I R 1940 Cal. 589. (2) Gokal Chand v. Niadar Mal 32 I C

485. In the first noted authority, reference was invited to the following observation at page 590 (Column 2) :‑ "It is really only after the lapse of 12 years from Jogendra's attainment of majority that this section (section 28) would come into play at all." Reference was also invited to the following observation in the same authority at the bottom which reads :‑ "This brings in the second argument to the effect that alto gether apart from section 28 the failure of Jogendera to institute a suit within three years of his majority ipso facto ‑perfected the title of the plaintiffs. This argument would be unanswerable if a suit is the only method of repudiating a transaction." In the second noted authority, the facts culminating in the second appeal were that one Dhani Ram had three sons, Bindraban, Munshi Ram and Gokal Chand, of whom the last named was the appellant. In 1908 Ghamandi Lal, etc. got a decree against Bindraban, Munshi Ram and their sons for Rs. 2,

727. Soon after the decree, Udho Ram, who had been appointed a receiver and had been authorised to sell certain property in order to clear off debts, sold a house belonging to the brothers to Niadar Mal and with the sale money paid off the decree holders. Niadar Mal got possession of the house with the exception of two kothris which were locked up, and for these two, kothris Niadar Mal brought a suit. Gokal Chand in 1911 sued the Secretary of State, Niadar Mal and others for cancellation of the sale effected by Udho Ram, but this suit was dismissed as time‑barred. In the suit brought by Niadar Mal for possession of the kothris Gokal Chand again resisted the claim on the ground that the sale was not binding on him. The trial Court decided the case against him. The Divisional Judge held that Gokal Chand having failed to get the sale set aside within the period allowed by law could not impeach it. At page 486, the Divisional Bench comprising Mr. Justice Shah Din and Mr. Justice Chevis, while repelling the contention that the defence in that case was time‑barred, observed :‑ "And as to the defence in the present case being time‑barred, we note that Gokal Chand is not the plaintiff in this case and the 1st Schedule to the Limitation Act only provides periods of limitation within which suits must be brought. It does not provide periods of limitation for defences. Section 28 of the Limitation Act is also no bar, as that section merely provides that at the determination of the period allowed by law to any person for instituting a suit for possession of any property his right to such property shall be extinguished. This however, is not a case in which Gokal Chand has been out of possession for a period exceeding that which the law would allow him for bringing a suit to recover possession."

8. I may also profitably borrow the following observations of the Privy Council in Sri Kishan Lal v. Mst. Kashmiro and others (A I R 1916 PC 172) at page 179 :‑ "It has been contended here that limitation is a bar to Mst. Kashmiro's defence. The Indian Limitation act would not apply to her defence. Even if she were suing to recover possession of property of which she was deprived by the award, time would not, under the circumstances of this case, begin to run against her until Faqir Chand died."

9. In support of the argument that adverse possession against minors where the property was transferred by an unauthorised agent would begin from the date of removal of their disability, i.e. on attaining majority, the learned counsel for the appellants quoted the following excerpt from the American Jurisprudence, Volume I, page 802, Item No. 20 under the head "Infants". which reads :‑ "The possession of one claiming title to land by adverse possession who begins his possession at a time when the owner is an infant, cannot be adverse to the owner during the time the latter is under the disability. Time does not begin to run until after the removal of the disability. However, an adverse possession which originates during the owner's infancy will ripen into title if action is not brought by him within the statutory period after attaining majority."

10. Mr. Inayat Ilahi Khan, learned counsel for the respondents, on the other hand, cited the following authorities in support of the view that section 28 of the Limitation Act would also apply to the defence of the minors :‑ (1) Nannekhan v. Ganpati and others A I R 1954 Hyd. 45. (2) Janardan Saraf v. Nilkantha Saraf and others A I R 1952 Orissa 31. (3) Winifred Colaco and others v. Nanjappa Gowda and others A I R 1953 Mys. 84. (4) Shidlingave Sadeppa Pelared v. Rajava Tanesahed Jayalgar A I R 1931 Bom. 23. (5) Sorirnuthu Thondaman and another v. Perumal Ammal A I R 1930 Mad. 708 (2). In the first noted authority, the person holding adverse possession was dispossessed and a suit was brought by him for getting the possession. The lower Court dismissed the suit, but the Court of Appeal granted him the decree for possession holding that the sale of the property of minors by his guardian was without authority and possession of the purchaser was adverse against the minors as well, and therefore, the minors' remedy was under section 6 read with section 8 of the Limitation Act to have sued for possession within three years of attaining majority. In the second and third authorities, the argument was repelled that the minors should be allowed period of twelve years for filing the suit for possession after attaining majority, holding that the combined effect of sections 6 and 8 of the Limitation Act is that the minors should bring the suit within twelve years from the accrual of cause of action or within three years of attaining majority, whichever is later. In the 4th and 5th authorities, it was held that if the property of a minor is sold without authority, the possession of the vendee would be adverse against the minor. It is important to observe here that in none of the authorities cited by the learned counsel for the respondents, decision in Gokal Chand v. Niadar Mal and Sri Kishan Lai v. Mst. Kashmiro and others had been noted much less discussed or distinguished. It is the trite law that the decision of the' Privy Council must prevail against the decision of the High Court, unless and until the same has been overruled by the Supreme Court of India or Pakistan. This being the position, I, in l respectful agreement with the authorities of the Privy Council. and 32 Indian Case, hold that section 28 of the Limitation Act would apply to the suit instituted by the plaintiff and it is not applicable at all to the defence set up by the minors whose l property has been sold by unauthorised agent, which transaction' is void ab initio, and therefore it does not constitute adverse) possession against the minors in such like situation. The period would start from the date when the minors attain majority. There is another aspect of the case and it is that according to the finding of the learned lower appellate Court, the plaintiff respondent was dispossessed of the house in suit in 1958. The suit giving rise to the second appeal was instituted on 13‑4‑1961 about three years after dispossession of the plaintiff. He is to be non‑suited on the short ground that he is not in continued possession.

11. For all the foregoing reasons, I accept the appeal, set aside the judgment and decree of the learned appellate Court and dismiss the suit, but would make no order as to costs.

12. On the oral request of the learned counsel for the respondents, I certify the case for Letters Patent Appeal. A. B. Appeal accepted.