2012 PLP 573 (CLC)

ABDUL WAHEED KHAN, J:

As against the sale of land measuring 41 kanals, 10 marlas, i.e. 1/6th share of Khewat No.190 situated within the area of Mathrala Tehsil Talagang through Mutation No.519 dated 14-12-1998, a suit for possession through pre-emption was filed in the name of Ahmad Waseem (minor) through Nazar Hussain as his next friend. The suit was contested. According to the respondent/defendant, mother and elder brother of the minor are alive and that Nazar Hussain who is not related to him, posing himself to be guardian of the minor, instituted the suit with mala fide intention. According to the respondent/defendant the requirement of Talbs was also not fulfilled. After the pleadings of the parties, issues were settled and evidence of both the parties was recorded. From the petitioner/plaintiff's side, Nazar Hussain, P.W.1, Gulab P.W.2 and Sultan Muhammad P.W.3 were examined, whereas the respondent/defendant himself appeared as D.W.2 and produced Allah Ditta as D.W.1. While giving its finding on Issue No.1, the Civil Court dismissed the suit vide judgment and decree dated 7-2-2002. The operative part of the judgment is in the following words:-- "In view of the above discussion, especially on Issue No.1, I am of the considered view that the suit of the plaintiff is not maintainable because he is a minor and one Nazar Hussain is not legally appointed guardian of the minor. Plaintiff Nazar Hussain has instituted the instant suit for his own personal benefit and judgment and decree, if passed in his favour, may go against the welfare of the minor plaintiff, which is to be determined by the court at any cost."

2. Feeling aggrieved of the same, an appeal was filed which was also dismissed by the appellate court vide judgment and decree dated 18-7-2002, hence this revision petition.

3. The contentions of counsel for the petitioner are that there are three kinds of guardian i.e. (a) natural guardian, (b) guardian ad litem and (c) guardian of a minor appointed under the provisions of Guardians and Wards Act, 1925 and that Nazar Hussain was the guardian ad litem of the minor and thus he was competent to file a suit for pre-emption before the Civil Court. According to him the issue before the Civil Court was as if Nazar Hussain had filed the suit for his own interest and onus to prove this issue was upon the respondent/ defendant. According to him under the provisions of sections 13 and 14 of the Punjab Pre-emption Act, 1991 a guardian of a person may make the demands on his behalf. He lastly submitted that the Civil Court did not comply with the provisions of Order XXXII, Rules 2 and 3, C.P.C. and while accepting this petition, the matter be remanded to the Civil Court for appointment of a guardian and decision of the case on merits.

4. Contrarily the contentions of counsel for the respondent are that concurrent findings of both the courts below do not call for interference that Nazar Hussain had no relationship whatsoever with the minor and that he could not file any such suit. According to him, Nazar Hussain is neither a natural guardian nor he is appointed as such by the Guardian Court under the provisions of Guardians and Wards Act, therefore, he was not competent to file any such suit and that this revision petition merits dismissal.

5. Arguments heard. Record perused.

6. Although the Code of Civil Procedure provides a procedure for a civil suit but some of the provisions of Punjab Pre-emption Act, 1991 also regulate the proceedings of suit for possession through pre-emption. Section 4 of the Punjab Pre-emption Act, 1991 is re-produced below:

"Demand by guardian or agent.

Where a person is unable to make demands under section 13, his guardian or agent may make the required demands on his behalf." The word "guardian" has been defined in Black's Law Dictionary (Ninth Edition) in the following words:

"One who has the legal authority and duty to care for another's person or property, esp. because of the other's infancy, incapacity, or disability." So in a suit for possession through pre-emption, the jumping demand can be made, on behalf of the minor pre-emptor by his guardian or the agent. The suit is also to be filed by the person who makes any such demand. For the purposes of ascertaining as if Nazar Hussain is the guardian of the minor, a portion of his examination-in-chief is relevant which is reproduced hereunder:-- The said Nazar Hussain did not utter a single word that he had any legal authority and duty to care for the person and property of the minor because of his infancy, incapacity or disability, therefore, he by no means can be considered to be his guardian. He has himself admitted in his examination-in-chief that he is a remote relative of the minor. In an answer to a question Nazar Hussain stated that the petitioner/plaintiff is his Khalazad but he could not tell the name of the Khala. The counsel for the petitioner contended that Nazar Hussain is guardian ad litem of the minor. The definition of "guardian ad litem" in Black's Law Dictionary (Ninth Edition) is as follows:

"A guardian, usu. A lawyer, appointed by the court to appear in a lawsuit on behalf of an incompetent or minor party.

" But there is no such appointment by the court, authorizing Nazar Hussain to file any such suit for possession through pre-emption and to pursue the same, therefore, the contention of counsel for the petitioner that Nazar Hussain is guardian ad litem, is misconceived. It stands established that Nazar Hussain has no direct relationship with the minor and thus he had no legal authority or duty to the minor's property because of his infancy, incapacity and disability. Thus, he could neither make any Talbs under the provisions of sections 13 and 14 ibid, nor file any suit for possession through pre-emption especially when the mother of the plaintiff was alive at the time of sale transaction. His elder brother was also major and was capable of looking after the interest of the minor. He was neither his natural guardian, nor guardian appointed by the Civil Court under the provisions of Order XXXII, C.P.C. or guardian appointed by the Guardian Court under the provisions of Guardians and Wards Act, 1890 Where a person is unable to make demands under section 13 ibid, then his guardian or agent can make demands and institute a suit for possession through pre-emption and none else but the guardian would be the person who has the legal authority and duty to care for another's person or property, especially because of the other's infancy, incapacity or disability. In the instant matter, it would be presumed that the suit was filed by himself for his own interest. The findings of both the courts below do not call for any interference. The contentions of counsel for the petitioner are totally misconceived, thus, no interference called for. This petition fails, hence the same is dismissed. H.B.T./A-239/L Petition dismissed.