' MAULVI ANWARUL HAQ, J.---On 5-12-1993, the petitioner filed a suit against the respondent. In the plaint it was stated that he is the owner of the land measuring 32 Kanals mentioned in the heading of the plaint and that Mutation No.87 attested on 28-6-1992 in favour of the respondent is illegal and void. It was explained that the petitioner is an illiterate village folk, whose son Rab Nawaz was married to Mst. Pathani, the sister of the respondent, while another son Haq Nawaz was married to Mst. Amiran, another sister of the respondent. The relationships became strained and both the ladies filed suits for dissolution of marriage. A Punchait was convened and it was decided that in case the petitioner transferred some land in favour of his sons then the ladies will go back to their house. Consequently, on 28-6-1992 he mutated his land measuring 74 Kanals and 8 Marlas in favour of sons as well as his wife vide Mutation No.88. However, the respondent fraudulently also got attested Mutation No.87 in his favour on the same date i.e. 28-6-1992. According to him, he never agreed to sell the land to the respondent and he has never received any money from him. He never appeared before the Revenue Officer to make a statement admitting the sale and that his thumb-impression , if it is there has been obtained through fraud. Now the respondent was stated to be a minor and was sued through his father. Later on his uncle Allah Bakhsh was appointed as his guardian ad litem. In the written statement the plea taken was that the mutation was validly got attested by the petitioner in favour of the respondent. It was explained that in lieu of the two sisters of the respondent who got married to the two sons of the petitioner, he had to give the hands of three of his daughters namely Mst. Sakina Mai, Mst. Haleema Mai and Mst. Zareena Mai in marriage. Consequently, he got married two of his daughters to Bashir Ahmad and Amir Bakhsh, the brothers of the respondent while Zareena was married to the respondent in accordance with Shariat. However, due to minority Rukhsati did not take place. Later- the petitioner married Mst.
Zareena to one Abdul Rasheed. Since the said lady had already been married to the respondent, his father filed a complaint against Mst. Zareena, Abdul Rasheed and others. As a result of this event the sisters of the respondent also filed the suits for dissolution of marriage. In all these matters Messrs Riaz Hussain Shah and Abdul Hakeem were appointed as Arbitrators, who decided the matter by directing that the said dissolution suits as well as the complaint will be withdrawn and the respondent to pronounce Talaq upon Mst. Zareena and as a consideration for this arrangement the petitioner will give 4 acres of land to the respondent. The suits were withdrawn and the respondent pronounced divorce upon Mst. Zareena and the land was sold in favour of the respondent. The complaint was got rejected later on. It was further explained that since under the MLR-115, 32 Kanals land could not be transferred to the respondent, the remaining land was gifted away by the petitioner to his sons and wife. Initially the following issues were framed by the learned trial Court:--
(1) Whether the plaintiff is owner in possession of the property mentioned in the head note of the plaint and Mutation No.87 dated 6-6-1992 is illegal, void and ineffective on the rights of the plaintiff? OPP
(2) Whether the plaintiff is estopped by his conduct? OPD
(3) Whether the defendant is entitled to special costs? OPD
(4) Relief.
2. Evidence of the parties was recorded. The suit was dismissed by the learned trial Court on 12-12- 1996. An appeal filed by the respondent was allowed by a learned Additional District Judge, Layyah, who framed the following additional issues:-- (3-A) Whether Mst. Zareena Mai daughter of Allah Bakhsh was given in Nikah of defendant? OPD (3-B) Whether plaintiff asked for the divorce of Mst. Zareena Bibi and in lieu of Talaq Zar-e-Khula Rs.1,20,000 was fixed to be paid by the plaintiff? OPD (3-C) Whether alienation vide Mutation ' No.87 was made in favour of the defendant in lieu of Zar-e-Khula? OPD
(4) Relief. ' and remanded back the case to the learned trial Court. Further evidence was recorded, vide judgment and decree dated 4-5-2001 the learned trial Court decreed the suit. A first appeal filed by the respondent has been allowed by a learned Additional District Judge-I, Layyah on 30-9-2002, who has dismissed the suit filed by the petitioner.
3. Learned counsel for the petitioner contends that it had not been proved on record that Mst.
Zareena, the daughter of the petitioner was either married to the respondent or that he divorced her and as such the sale being without consideration, was rightly declared to be void by the learned trial Court. The learned counsel for the respondent on the other hand, supports the impugned judgment and decree with reference to several pieces of evidence on record.
4. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. I have already reproduced above the material contents of their pleadings. Now the precise plea of the respondent is that the said family suits and the said criminal complaint (filed under section 10(2) of Offence of Zina (Enforcement of Hadd) Ordinance (VII of 1979) were referred to arbitration. The decision was taken and in enforcement of the said decision, mutation was got attested in favour of the respondent by the petitioner transferring the suit-land to him.
5. Now the facts that have come on record are that Mst. Zareena as well as the respondent were still minors, when these suits were filed. According to the witnesses, she was 5/6 years of age, when she was married to respondent, who himself was about 6 years of age. The date, month or even the year of marriage is not available on the record. However, it is on record that she was married to one Abdul Rasheed on 17-6-1991. Now the learned Judge, who dealt with the complaint vide judgment Exh.P.6 has held that it stood proved before him that Mst. Zareena Mai repudiated her alleged Nikah with Ramzan on 6-11-1990, by executing an affidavit and thereafter she married Muhammad Rafiq. It has come in the statement of respondent as D.W.10 that the said marriage was never consummated as no Rukhsati took place. According to him, he pronounced oral divorce after the marriage of Zareena with Rafiq and that the petitioner had not thumb-marked the mutation and further that no consideration was paid. I may further note here that it has been suggested to Allah Bakhsh petitioner P.W.1 and denied by him that the criminal case was rejected because of the said arrangement. There is also a mention of the said affidavit given by Mst.
Zareena in the statement of Allah Bakhsh D.W.8. Now the said decision by the Arbitrators is Exh.D.3 and it clearly narrates that Allah Bakhsh petitioner had rejected the said decision of the Arbitrators and had left the Majlis.
6. To my mind, in view of the said admitted circumstances of the case, the said decision of the Arbitrators is wholly illegal and void. I confronted the learned counsel for the respondent to state that if it were Allah Bakhsh, who had to go to the Court for enforcement of the said agreement whereby the respondent was to pronounce divorce upon Mst. Zareena could the same be enforced. The answer, of course is in the negative. The transaction vide the impugned mutation is wholly illegal and being without consideration or otherwise in any case it being the stated case of the respondent that the arrangement was made in lieu of getting the criminal complaint rejected, the object and the consideration being against law, the agreement was void and not enforceable.
The C.R. Accordingly is allowed. The impugned judgment and decree dated 30-9-2002 of the learned Additional District Judge, Layyah, is set aside and the one passed by the learned trial Court on 4-5-2001 decreeing the suit of the respondent is restored for reasons stated above. No order as to costs.