2001 PLP 1419 (YLR)

(3) Whether the suit is improperly valued for the purposes of court-fee and jurisdiction? OPD (4) Whether the plaintiff was minor at the time of execution of power of attorney in favour of the defendant No.1? OPP (5) Whether the alleged sale is illegal, void on the grounds stated in para. No.8 of the plaintiff? OPP (6) Relief. All the issues were decided by the learned trial Court vide judgment dated 4-5-1978 in favour of the respondent/plaintiff. An appeal was preferred by the petitioners/defendants which was also dismissed by the learned Additional District Judge-VI, Sahiwal on 8-5-1982.

3. Learned counsel also referred to the registered sale-deed, dated 6-3-1961 Exh.D.2 in which the plaintiff had himself shown his age as 27 years and the execution of that document was admitted. Learned counsel has also referred to Exh.D.3 which is a voters list. According to which his age was shown as 40 years and that the plaintiff had actually and factually cast his vote at the relevant time and that no doubt these documents were conclusive there being no rebuttal they could not be easily ignored. Learned trial Court had not referred both these documents in the judgments.

4. Regarding limitation, the trial Court came to the conclusion that the suit was barred by 9 months and 6 days. Learned Civil Judge while deciding the issue of limitation observed that the power of attorney was executed on 4-5-1962 and mutation was attested on 20-2-1963 while the suit was filed on 26-11-1969 and that the limitation period was coupled with effect from 20-2-1963 and the time for filing for such a suit was six years and in this manner the suit was delayed by 9 months and 6 days in view of Article 120 of the Limitation Act.

5. Regarding fraud, learned Civil Judge observed that it was to run from the date when the fraud was disclosed and that in the present case the plaintiff came to know about the transaction in question a few days earlier from the date of institution of the suit. Learned counsel submitted that there is no clarification of a few days nor there was any evidence and it was only conjectural and based on surmises and held the suit was within the limitation. The learned appellate Court did not advert to it and remained around section 3 of the Majority Act, 1875. Learned counsel then referred to Exh.D.5 which is "Parcha Khatooni Taqseem" issued to Safdar Ali. The land was recorded in his name in India and that by itself was proof of his being of age. This land was confirmed on 18-7-1962. This document shows that Safdar Ali son of Fateh Muhammad was owner of the land in India. Safdar Ali had appeared as P.W.5 and he stated that he was from Chak Sadu District Gurdaspur where he was born and that his father had died prior to the Partition of the establishment of Pakistan and at the time of Partition his age was only one year. This deposition was recorded on 3-7-1972. It means if his father had died one year before Partition mutation of inheritance would have been recorded in India and that fact was so recorded and came to Pakistan showing him as owner. Further, it is submitted that contents of mutation or transfer of Jamabandi are recorded after passing of four years. If the transfer of contents is made earlier than four years then it is given in red ink in the Khana Kayfiyyat. Learned counsel submitted that this shows that as the entry was in the Jamabandi, therefore, the plaintiff was born at least four years prior to that Jamabandi and according to that circumstance the date of birth of the petitioner goes back to 3-7-1942/43. This document Exh.D.5 had neither been noted nor commented by both the Courts below. Safdar Ali had also deposed in his statement that he remained getting education in the M.C. Primary School near Central Jail Sahiwal and has studied up to Class III. Learned counsel then referred to School Leaving Certificate which was produced at the appellate stage. According to which his date of birth is 5-5-1939 and he joined the M.C. Primary School on 23-9 1949 in Class III. The document was ignored on the grounds that it was not certified but was original counter-file. There is no denying the fact that it was duly signed by the Headmaster, M.C. Primary School, Sahiwal. Learned counsel submitted that duplicate certificate issued according to the rules of school leaving certificate which was covered within the definition of Preliminary evidence. He referred to old Evidence Act, 1872 Explanation

1. Learned counsel then referred to the evidence of Moula Bakhsh who was sixty years old at the time of deposition. He is the second husband and the father of the plaintiff, who deposed that two years prior to the establishment of Pakistan, mother of the plaintiff had come to him that the plaintiff was two years old and that this also shows that the age of the petitioner goes back to 1939. Learned counsel then referred to the statement of D.W.4/1 on which the plaintiff admits his signature. Learned counsel submitted that in order to see the commission of fraud the looking into these documents is necessary.

6. Regarding the concurrent findings of both the Courts below learned counsel has referred to Nazar Muhammad and another v. Mst. Shahzada Begum and another PLD 1974 SC 22 wherein finding of fact arrived at by Court below on evidence misread and misinterpreted by Court of second appeal entitled to review evidence. He then referred to Muhammad Anwar v. Muhammad Siddiq Hashim PLD 1992 SC 838-843 where it was observed that where material piece of evidence was not taken into consideration, the Court in second appeal could take exception of it.

7. On the other hand learned counsel for the respondent submitted that the case of respondent/plaintiff was on two counts. Firstly, the plaintiff was a minor and secondly the impugned documents obtained under undue influence and misrepresentation. Learned counsel submitted that defendant No.1 was a Clerk of an Advocate. Learned counsel for the respondent submitted that Iqrarnama dated 4-5-1962 is not proved according to law and the marginal witness of that Iqrarnama does not produce any document and Muhammad Din did not say a single word regarding receipt of consideration. The whole stress of the learned counsel for the respondent is that not a single penny has been paid to him nor any document has been submitted to prove that fact... Learned counsel submitted that the Market price of the land even when all these documents were prepared was not less than Rs.30,

000. Learned counsel referred to P.W.5 which is most important. No sale consideration was given to him. Learned counsel relied upon Abdul Majid and others v. Kahlil Ahmed PLD 1955 FC 38 regarding concurrent finding of facts where it was observed that concurrent finding of facts by lower Courts, even though it may be erroneous provided evidence is considered by Court cannot be upset by the High Court in second appeal. He also relied upon Haji Sultan Ahmad through legal heirs v. Naeem Raza and 6 others 1996 SCMR 1729 where reappraisal of evidence on record by second appellate Court is not permissible under section 100, C.P.C.

8. I have given due consideration to the valuable arguments on both sides.

9. There is concurrent findings of both the Courts below that Safdar Ali was a minor when the documents in question i.e. General Power of Attorney was executed and mutation of sale was got attested. The learned Additional District Judge has very correctly appreciated the evidence on the record and applied the correct law when he observed that the statement of P.W.1 Safdar Ali, P.W.3 Allah Ditta and P.W.4 Ghulam Muhammad showed that the respondent was about one or two years old at the time of Independence and on 4-5-1962 his age was not more than 16/17 years. The reasons given by the learned Additional District Judge in discarding the statement of P.W.2 Maula Bakhsh that he had contracted marriage with the mother of the respondent two years before Independence and at that time respondent being two years old was not sufficient to prove otherwise. Firstly, for the reason that P.W.2 was not resident of the locality where respondent was borne and as such .was not suppose to know about specific time when the respondent was borne and secondly that mother of the respondent died seven years after the Independence and his admission in the cross- examination that respondent was nine years old when her mother died clarifies the position that respondent was two years old at the time of Independence.

10. Under the Majority Act, 1875 two ages are given for the attainment of majority. Section 3 of the said Act reads as under:-- "

3. Age of majority of persons domiciled in Pakistan.

Subject as aforesaid, every minor of whose person or property or both a guardian, other than a guardian for a suit within the meaning of Chapter XXXI of the Code of Civil Procedure, has been or shall be appointed or declared by any Court of Justice before the minor has attained the age of eighteen years and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age shall notwithstanding anything contained in the Indian Succession Act (No. X of 1865) or in any other enactment, be deemed to have attained its majority when he shall have completed his age of twenty one years and not before. Subject as aforesaid, every other person domiciled in Pakistan shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before. "

11. Admittedly the Court had not appointed any guardian of the minor Safdar Ali regarding his person or property and as such the age of majority will be 18 years in his case. Thus, at the relevant time the respondent was minor as such any transaction on his behalf regarding his property was not legally binding on him without appointment of a guardian. The way he has been shown as major is all based on fraud and misrepresentation.

12. For the above reasons this second appeal is without any force. The same is, therefore, dismissed with no order as to costs. Q.M.H./M.A.K./M-673/L Appeal dismissed.