' HAMID ALI MIRZA, J.--- This civil appeal with leave of the Court, dated 27-10-1997 is directed against the judgment, dated 20-11-1995 in R.S.A. 371 of 1971 passed by a learned Judge in Chambers of the Lahore High Court, Lahore whereby the same wasallowed, thereby the First Appellate Court's judgment and decree, dated 27-2-1971 were set aside and the judgment and decree of the trial Court dated 29-4-1969 were restored, hence this appeal.
2. Brief facts of the case are that Yara sib Dosa filed suit against Mughal alias Mughla and 17 others for declaration to the effect that he was owner in possession of the suit-land while the defendants had no interest in the suit-land on the ground that sale of land admeasuring 214 Kanals, 8 Marlas by defendants Nos.1 to 8 in favour of Allah Diya the defendant No,9, vide registered sale-deed, dated 16-8-1966 was illegal and void. In the alternative it was pleaded that he had become owner by virtue of adverse possession and further prayed for injunction restraining the defendants in the suit from interfering with his (Yara) possession of the suit-land. It was further stated in the plaint that Bahawal son of Alam his (Yara) grandfather was involved in a murder case and he apprehended danger to his life from his adversary, therefore, he ostensibly transferred 1/4th share of his land measuring 50 K, 19 M in Chah Kamyanwala in Khata Nos.2 and 3 in favour of Karam (Qamar) the predecessor-in-interest of defendants Nos.1 to 8 through Mutation No,3 (Exh.P.2) attested on 16-6-1888 without delivering possession to him which transfer of land was fictitious. It was further stated that.Even after the attestation of mutation, land continued to remain in possession of Bahawal and then in possession of his father Dossa to the exclusion of Karam (Qamar). It was also pleaded that Karam (Qamar) the predecessor-in-interest of defendants Nos.1 to 8 in collusion with the Revenue staff got entered as correction Mutation No,59, dated 12-9-1923 (Exh.P.3) whereby Shamlat land pertaining to the afore-mentioned land was also shown to have been transferred in their favour. Defendants Nos.1 to 8 on their failure to get possession of the land on the basis of abovementioned collusive correction Mutation No,59 transferred the suit-land through a registered sale-deed dated 16-8-1966 in favour of Allah Diya the defendant No,9 but no possession under the aforesaid deed was delivered to him as defendants Nos.1 to 8 themselves were never in possession of the land. It was stated in the plaint that cause of action accrued to plaintiff Yara when Allah Diya the defendant No,9 threatened to dispossess the former by force from the suit-land and denied his entitlement over the suit-land. The suit was contested by Mughla and others, the 'predecessor-in-interest of the appellant by filing written statement. After framing of issues and recording evidence of the parties, the trial Court, vide judgment and decree, dated 29-4-1969, held that the predecessor-in-interest of the plaintiff was owner in possession of the suit-land except the land to the extent of only 50 Kanals, 19 Marlas which stood validly sold to Allah Diya the defendant No,9 through registered sale-deed to the said extent only as originally vide Mutation No,3 attested on 16-6-1888 Karam (Qamar) the predecessor ofdefendants Nos.1 to 8 was sold the land to the said extent only and that the transfer of remaining land in favour of predecessor-in-interest of defendants Nos.1 to 8 was illegal and ineffective so far the rights of plaintiff-respondent were concerned. The suit was accordingly decreed, as stated above. The said judgment and decree were appealed against before the learned District Judge who accepted the appeal after reversing the findings of the learned trial Court on material issues and dismissed the suit as per his judgment and decree, dated 27-2-1971 which were challenged in R.S.A. No,371 of 1971 before the Lahore High Court by the respondent/plaintiff which appeal was allowed as per impugned judgment and decree, dated 20-11-1995 thereby the judgment and decree of the District Judge, dated 27-2-1971 were reversed thereby the judgment and decree of the trial Court, dated 29-4-1969 were restored.
3. We have heard the learned counsel for the appellant and perused the record. Contentions of the learned counsel for the appellant are that the suit was filed for cancellation of documents to be void or voidable, would fall under section 39 of the Specific Relief Act, therefore, Article 91 of the Limitation Act would apply, consequently, the suit not having been filed within three years as prescribed in the said Article, was hopelessly time-barred and further that the learned Judge in Chambers of the High Court erred in law in presuming that Yara and the plaintiff the predecessor- in-interest of respondents was minor at the time of sanctioning of the Mutation No,59, dated 12-9- 1923 when there was no evidence on record as to when he attained the age of majority. He further contended that mutations dated 16-6-1888 and 12-9-1923 were challenged through a suit on 19-5- 1967 after more than 43 years, therefore, the suit was barred by limitation having not been filed within three years after attaining the age of majority. That the property in dispute was purchased by Allah Diya the defendant No,9 in good faith and after taking due care and caution verifying Revenue Record for the last 44 years coupled with the admission of Yara the plaintiff the respondent No,1 that.?/8 years prior to filing of the instant suit he had filed a suit on the same subject-matter but the same was dismissed in default and silence on his part was sufficient to protect the rights of Mughla the respondent No,2 in appeal before Additional District Judge under section 41 of the Transfer of Property Act. Learned counsel for the appellant has placed reliance upon (1) Muhammad Jamil and others v. Lahore Development Authority and 3 others 1999 SCMR 2015 (ii) Muhammad Nawaz Khan v. Muhammad Khan and 2 others 2002 SCMR 2003 (a and b), (iii)
H.M. Saya & Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65, (iv) Hussain A. Haroon and others v. Mrs. Laila Sarfraz and others 2003 CLC 771, (v) Muhammad Zafarullah Khan v. Muhammad Shafi, Chairman, Election Tribunal and others PLD 1976 Lah. 302, (vi) Rashid Ahmed v. Mst. Jiwan and 5others 1997 SCMR 171, (vii) Standard Investment (Pvt.) Ltd. v. ARK Industrial Management Ltd. And another 1992 CLC 1099; (viii) Muhammad Rafique v. Khalid Masood and 22 others 2001 CLC 781, (ix)
Mehmood Khan v. Muhammad Hassan and 7 others 1991 SCMR 1566, (x) Mst. Khurshid Begum v. The Settlement Department and others 1976 SCMR 102, (xi) Ghulam Hussain v. Soharu and 131 others PLD 1984 Pesh. 278, (xii) Kaka v. Muhammad Aslam Khan 1980 CLC 1957, (xiii) Muhammad Din and others v. Maulana Muhammad Yahya 2003 MLD 1596, (xiv) Mst. Shah Sultana and others v. Abdul Khaliq and another 1987 SCMR 1791, (xv) Mst. Shah Jehan and another v. Syed Ali and 5 others 1989 CLC 2206 and (xvi) Azizur Rehman and 10 others v. Ali Haider Shah and 4 others 1993 CLC 454.
4. Learned counsel for the respondents has submitted that the impugned judgment of the learned Judge in Chambers of the Lahore High Court is based on proper appreciation of evidence and law who had affirmed the findings of the trial Court. He further submitted that the appellant had filed an application for his impleadment as party to the appeal in the High Court but it was rightly declined, therefore, he could not be termed to be an aggrieved party in view of the law laid down by this Court in Saya's case (supra). He submitted that the question of limitation has been properly attended to by the learned Judge in Chambers and by the trial Court in accordance with law considering that the transactions made were void, therefore, when the respondents' predecessor- in-interest Yara's possession was threatened the latter had accrued right to sue, hence the limitation started from the date when his right to sue accrued to him with regard to threat to his possession in view of Article 120 of the Limitation Act. He further submitted that Shamlat land was never sold nor included in the deed of transfer and that the plaintiff Yara was minor at the time correction Mutation No,59, dated 12-9-1923, his mother de facto guardian could not transfer former's rights in the land according to law which transfer of land was void, therefore, subsequent sale in favour of Allah Diya was also void ab initio. He also submitted that neither section 39 of the Specific Relief Act nor section 41 of the Transfer of Property Act would be attracted in the instant case. He has placed reliance upon (i) Ahmed Khan v. Rasul Shah and others PLD 1975 SC 311, (ii)
Muhammad Amin and others v. Vakil Ahmed and others AIR 1952 SC 358, (iii) Assiz v. Chithamma AIR 1954 TRA-Co. 370, (iv) Abdul Karim and others v. Mst. Maniran and others AIR 1954 Patna 6, (v)
Ziarat Gul v. Mian Khan PLD 1950 Pesh. 69, (vi) Musali Khan v. Nazir Ahmed and others PLD 1952 Pesh.
1, (vii) Taj Din and others v. Karim Bukhsh and others 1999 MLD 1216.
5. We find no substance and merit in the contentions of the learnedcounsel for the appellant but find substance and merit in the contentions of learned counsel for the respondents.
6. The first contention of learned counsel for the appellant has no merit and substance as the suit was not filed for cancellation of any document so as to attract section 39 of the Specific Relief Act or Article 91 of the Limitation Act but it was filed for declaration to the effect that the plaintiff (Yara) was the owner in possession of the suit-land and the defendants had no right or interest in the suit-land on the grounds mentioned in the plaint. In the circumstances section 42 of the Specific Relief Act and Article 120 of the Limitation Act would be applicable whereby the suit for declaration as to right or interest in immoveable property could be filed within six years from the date right to sue accrued to the plaintiff which would give him right to seek relief from the Court of law. In the instant case the respondent's predecessor in-interest Yara, had accrued a right to sue, when the defendants in the suit about one week prior to the filing of suit denied his right of his ownership and threatened his possession of the suit-land. The suit having been filed by plaintiff (Yara) on 15-5- 1967 for declaration of his right of ownership in the suit property from the date of cause of action was, therefore, within six years, hence it could not be said that it was barred by time. In the said respect the learned Civil Judge in the judgment observed that Yara the plaintiff as per copy of Jamabandi Exh.P.6 and copy of Khasra Girdawari Exh.P.6 had remained in possession of suit-land since Kharif, 1967. P.W.1 Maula Dad and P.W.2 Daulat also deposed that they had been cultivating the suit-land for and on behalf of the plaintiff Yara. P.W.3 Shera deposed and D.W. Malla admitted that the plaintiff Yara and his father were in possession of suit-land. D. W.1 Dilmir admitted that plaintiff Yara had installed a tube-well in the suit-land which was being irrigated by the same so also he admitted that plaintiff Yara was cultivating the suit-land. The learned Civil Judge rightly came to the conclusion that the documentary and ocular evidence produced by Yara coupled with admission of the D.Ws. Made it clear that the plaintiff Yara was all along in possession of the suit-land consequently suit would be covered by Article 120 of the Limitation Act and the person in possession of the land would not be obliged to rush to the Court only on the basis of adverse entry in the Revenue Record and in such a case plaintiff would get recurring cause of action by each adverse entry in the Revenue Record and the plaintiff would be sole Judge of, serious threat to his interest and be that as it may, the registered sale-deed dated 16-8-1966 if considered to be serious attempt on the part of the defendant upon the rights of the plaintiff the suit having been filed on 15-5-1967 would be within time. The said finding of the learned Civil Judge was reversed by learned District Judge who also failed to consider the ocular and documentary evidence discussed and reasoned out by the learned Civil Judge in his judgment. There is no cavil about the legal proposition that the entry in the Revenue Record is neither a document of title nor a presumptive evidence of title and person may not feel aggrieved of such entry and cause of action in such a case would not accrue when the mutation order in original or appellate or revisional was made.
The cause of action would accrue when a person concerned would feel himself aggrieved of the situation when he would feel it necessary to approach Court of law for relief which he considered fit and proper in accordance with law. In the circumstances the contention raised said above has no merit and substance.
7. The next contention of learned counsel for the appellant on which he has cited case-law that section 41 of the Transfer of Property Act would be applicable, as the defendant Allah Diya who derived title from defendants Nos.1 to 8 through registered sale-deed in good faith without notice for valuable consideration cannot be deprived of land in suit on the grounds that predecessor-in- interest of defendants Nos.1 to 8 was ostensible owner of the suit property and that the plaintiff
(Yara) was minor at the relevant time. So far the plea that section 41 of the said Act with regard to transfer of property by ostensible owner Karam (Qamar) the predecessor-in-interest of defendants Nos.1 to 8 having been purchased in good faith for consideration by Allah Diya the defendant No,9 would neither be void nor voidable, which plea was attended to by the learned Civil Judge under Issue No,5 whereunder it was rightly observed that Allah Diya, appellant, knew that the litigation was pending between the parties in respect of land and had knowledge that the title of the defendants Nos.1 to 8 was in dispute but in spite of that he purchased the land and the Court correctly held that so far the land to the extent of 50 Kanals, 19 Marlas having been transferred by Bahawal in' favour of Karam (Qamar) the predecessor-in-interest of defendants Nos.1 to 8 was validly purchased by the appellant but for the rest of Shamlat land which was transferred by way of correction Mutation No,59, dated 12-9-1923 by Mst. Allah Jawai during the minority of Yara cannot be held to be validly sold to the appellant as it was void. In the circumstances the law cited on the said plea is of no consequence and of no assistance to the case of the appellant.
8. So far the contention of learned counsel for the appellant that there was no evidence on record to show that the plaintiff was minor at the relevant time when correction Mutation No,59 was made on 12-9-1923 and further as to when he attained the age of majority. The said contention has no merit considering that learned Civil Judge after going through the relevant record rightly observed that Mutation No,59 was sanctioned on 12-9-1923 in presence of plaintiff Yara who was a minor at that time who had accompanied by his mother consequently Yarathe plaintiff was not bound by any such mutation nor his mother's consent would bind him and further that transaction of sale by Mutation No,3 of 1888 was separate and independent from that of correction Mutation No,59 of 1923 and further there was no evidence from the side of the appellant and defendants on record to show that Yara the plaintiff or his predecessor-in-interest has alienated any share in Shamlat land to Karam (Qamar) the predecessor-in-interest of defendants Nos.1 to 8 and further Mutation No,59, dated 12-9-1923 was without any legal authority and would not be operative against the rights of Yara the plaintiff. Learned District Judge in para. 10 erred in disagreeing with the finding of fact of learned Civil Judge with regard to effect of minority of Yara plaintiff at the time of Mutation No,59, dated 12-9-1923 which under the law was correctly arrived at by the learned Civil Judge that mother being de facto guardian of Yara the minor was void ab initio, therefore, no transfer could be held valid in favour of defendants Nos.1 to 8 through correction mutation other than the land measuring 50 Kanals, 19 Marlas which transfer was made by Bahawal. Reference may be made to
(i) Ahmed Khan v. Rasul Shah and others PLD 1975 SC 311, (ii) Muhammad Amin and others v. Vakil Ahmed and others AIR 1952 SC 358, (iii) Assiz v. Chithamma AIR 1954 TRA-Co. 370, (iv) Abdul Karim and others v. Mst. Maniran and others AIR 1954 Patna 6, (v) Ziarat Gul v. Mian Khan PLD 1950 Pesh.
69, (vi) Musali Khan v. Nazir Ahmed and others PLD 1952 Pesh. 1, (vii) Taj Din and others v. Karim Bukhsh and others 1999 MLD 1216. The learned District Judge did not dispute or disagree with the finding of the learned Civil Judge that Yara was minor. Learned District Judge has ,not even discussed the evidence on record and the law relating to the effect of minority upon the transfer of immovable property by mother belonging to her minor son. The learned Judge in Chambers in his well-reasoned concise judgment has addressed the most vital points relevant to the matter in dispute concurring with the findings of fact and law of the learned Civil Judge. The learned Judge in Chambers has observed in his judgment:-- "Qamroo vendee from Bahawal, the original owner, purchased only land measuring 50 Kanals, 19 Marlas through Mutation Exh.P.2. It did not include share in the Shamlat Deh. The arguments of the learned counsel for respondent No,1, seem to be that by virtue 'of this mutation, the vendee from Bahawal automatically became owner of proportionate share of Shamlat Deh. The proposition is fantastic and cannot be accepted. The admitted position is that no consideration, whatsoever, was paid at the time of the sanction of the mutation, Exh.P.3, 'therefore, the alleged transaction was bad in law for want of consideration. This is not all. It is clear from 'Mutation Exh.P.3, that theplaintiff was minor at that time. He was accompanied by his mother, who legally could not represent him, therefore, the mutation proceedings were bad in law."
The learned Judge in Chambers has rightly concurred with the trial Court with regard to the minority of Yara and the effect of the minority upon the transfer of his land by his mother. The defendants Nos.1 to 8 or appellant have not controverted the said finding arrived at by the learned Judge in Chambers with regard to the minority of Yara the plaintiff. Admittedly there is no permission of the Guardian Judge authorizing minor Yara's mother to dispose of former's property as required under section 29 of Guardian andWards Act. It has also been correctly appreciated by the learned Judge in Chambers and the learned Civil Judge that the Mutation Entry No,3 attested on 16-6-1888 with regard to transfer of land by Bahawal in favour of Karam (Qamar) predecessor- ininterest of defendants Nos.1 to 8 did not include Shamlat land but was included through so-called correct mutation which correction mutation in absence of proper sanction with regard to transfer of property of minor from the Court was void as Yara was minor at the relevant time, therefore, his mother Allah Jawai could not have conveyed the title of Shamlat land.
9. In view of aforesaid reasoning's, we find no merit and substance in this appeal, therefore, same is dismissed maintaining the judgment of learned Judge in Chambers and that of the Civil Judge to the extent that the plaintiff Yara was owner in, possession of suit-land except to the extent of 50 Kanals, 19 Marlas and the sale of suit-land to Allah Diya defendant No,9 vide registered sale-deed, dated 16-8-1966 was only valid to the extent of 50 Kanals, 19 Marlas and so far sale of rest land was illegal void and inoperative against the rights of the plaintiff Yara. No order as to costs.