SAYED ZAHID HUSSAIN, J.--- A suit for possession of the suit land (described in paragraph No. 1, of the plaint) cancellation of sale-deed No. 135, dated 22.3.1972, Mutation No. 923, dated 18.4.1977, Mutation No. 933, dated 21.5.1978 and Mutation No. 1219, dated 24.4.1985 filed by Ghulam Muhammad (now dead) was dismissed by the Trial Court on 7.6.1995. His appeal was also dismissed on 29.4.1998. This is second appeal by him.
2. The suit instituted by Ghulam Muhammad in the . Year 1984 proceeded on number of grounds including that he had never appointed Basharat Ali as his attorney, who purported to execute the sale-deed dated 22.3.1972 and that the whole affair was result of fraud, forgery and fabrication. The suit was contested controverting the averments made in the plaint and pleading that the same was time-barred. Several issues were framed by the Trial Court, which are as under:- ISSUES:
(1) Whether the plaintiff is owner of the suit property and registered sale-deed No. 135, dated 22.3.1972 and Mutation No. 923 attested on 18A.1977 and mutation attested on 21.5:1978 and No. 1219 and attested on 24.4.1985 are result of fraud hence liable to be set aside and cancellation? OPP.
(2) Whether the power-of-attorney dated 21.8.1969 from plaintiff in favour of one Basharat Ali s/o Allah Ditta is a forged document? OPP.
(3) Whether the plaintiff is entitled to the possession of the suit land? OPP
(4) Whether the suit is time-barred? OPD. 1-3
(5) Whether the defendant No. 1, has become owner of the suit land by way of adverse possession?
OPD-1
(6) Whether the suit property has not been correctly described, if so what is its correct description?
OPD-1-3
(7) Whether the defendant No. 2, is unnecessary party, if so, its effect? OPD
(8) Whether the plaintiff is estopped by his words and conduct to bring this suit? OPD. 3.
(9) Whether the plaintiff has no locus standi? OPD. 3.
(10) Whether the suit is frivolous and vexatious against the defendants Nos. 1 and 3 and they are entitled to special costs u/s. 35-A, CPC, to what extent? OPD-1-3
(11) Whether the defendant No 3, is bona fide transferee with consideration without notice, if so, it effect? OPD. 3.
(12) Relief.
It is evident from the perusal of the above-mentioned issues that issues Nos. 1 to 5 were of great significance and importance. It may be mentioned here that whereas issues Nos. 1 and 2 are concerned the same were decided by the Trial Court in favour of the appellant/plaintiff whereas issue No. 4, was decided against the appellant/plaintiff and suit was held to be time-barred. Issue No. 5, was decided against the defendants/respondents, whereas in view of findings on issue No. 4, issue No. 3, was decided against the appellant/plaintiff. The dismissal of the suit in view of findings on issue No. 4, was assailed by the appellant/plaintiff before the first Appellate Court. Cross objections were filed by respondents/defendants. Both the matters were heard together by the learned Additional District Judge, Jhang who dismissed the appeal of the appellant/plaintiff as also the cross objections filed by the respondents/defendants. It is also worth noting that the dismissal of cross-objections has not been assailed by the respondents/defendants any further.
3. Since now the findings qua issue No. 4 stand against the appellant/plaintiff, whole stress of the learned counsel was about the same. It is contended by the learned counsel that having decided issues Nos. 1 and 2 in favour of the appellant/plaintiff that he was owner of the property, the Courts below acted illegally in dismissing the suit in view of the erroneous findings recorded by them that the suit was time-barred. He was relied upon Hamida Begum v. Murad Begum (PLJ 1976 SC 44).
According to him as it has concurrently been found by the Courts below that the powerof-attorney dated 21.8.1969 in favour of Basharat Ali was a C. L. R. forged document and had never been executed by Ghulam Muhammad neither the suit could be dismissed as barred by time nor the relief of possession could be denied.
The learned counsel for the respondents on the other hand contends that the suit, which was instituted in the year. 1984 has rightly been held barred by time and that since the plaintiff was bound to seek cancellation of the sale-deed within limitation, his suit has rightly been dismissed.
He has placed reliance upon Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624), Muhammad Bashir v. Mst. Sattar Bibi and another (PLD 1995 Lahore 321) and Bashir Ahmad v.
Partab (1989 MLD 4314).
4. The respective contentions have been considered in the light of the record.
5. It may be noted that on consideration of the evidence led by the parties the learned Trial Court came to the conclusion and recorded its findings on issues No. 1 and 2 that "So all these facts are sufficient to show that the plaintiff had not appointed Basharat Ali as his general attorney and that he had not sold the suit land to defendant No. 1. So as the basic document i.e. The general power- ofattorney has been judged null and void, all the subsequent . Transactions viz-a-viz the sale-deed No. 135, dated 22.3.1972, Mutation No. 923, dated 18.4.1977, Mutation No. 993, dated 21.5:1978 Mutation No. 1219, dated 24 4.1985 will have also no foundation to stand on and they cannot affect the rights of the plaintiff and they are also liable to be set aside. So in my view the plaintiff is the owner of the suit land." As mentioned above, the findings su recorded by the Trial Court qua issues Nos. 1 and 2 were affirmed by the first Appellate Court and cross- objection filed by the respondents/defendants v. 3re dismissed vide the same judgment of the Appellate Court dated 29.4.1998. Since the respondents/defendants have not assailed the matter, any further, concurrent findings by the Courts below qua issues Nos. 1 and 2 have remained intact and hold the field.
6. Now the only issue is of limitation as to whether the Courts below were justified to non-suit the appellant/plaintiff on the ground that the suit was barred by time. Keeping in view the concurrent findings in favour of the appellant/plaintiff that he had not executed any power-ofattorney in favour of Basharat Ali and subsequent transactions pursuance thereto were null and void and that the appellant/plaintiff was the owner of the property, it is to be seen as to how for the dismissal of the suit on the ground of limitation was legal. Both the learned counsel have relied upon the case of Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624) as also Hamida Begum v.
Murad Begum (PLJ 1976 SC 44). In the said judgment their lordships on consideration of number of precedents observed that "From the language of the Article itself, it is clear that it will not apply when the cancellation of an instrument is not an essential part of the plaintiffs relief. An obvious case of this kind would be where the deed or instrument is ab initio null and void, in which case it can be treated as a nullity without having to be cancelled or set aside. If, on the other hand the instrument is only-voidable, then it would be necessary to have it set aside or cancelled in order to remove the impediment in the way of the plaintiff. It is perhaps not possible to enumerate exhaustively the circumstances which would render an instrument null and void, but it is at least clear that if the person who executes the document had no authority in law to do so, or if he had only a conditional authority to dispose of property, and the conditions under which authority could be exercised were not fulfilled, then the instrument could be regarded as null and void. Similarly, if the instrument is executed by a person suffering under a legal disability at the time of its execution, say by reason of minority, unsoundness of mind etc., the document would be null and void. If, however, the instrument is executed by a person competent to do so, but it is alleged that he was forced or persuaded to execute the same under coercion, fraud, misrepresentation or undue influence, then it Would be a voidable instrument in accordance with the principles embodied in sections 19 and 19- A of the Contract Act. The instrument would remain operative as long as it was not set aside by a competent Court. As authority for this proposition, we may mention Radhu Ram v. Mohan Singh (AIR. 1915 Lah. 200), Unni v. Kunchi Amma (1891) ILR 14 Mad. 26), Mt. Lzhar Fatima Bibi v. Mt. Ansar Fatima Bibi (AIR 1939 All 348), Minalal Shadiram v. Kharsetji Jivajishet (1930) ILR 27 Born. 560), Janki Kunwar v. Ajit Singh (1888) ILR 15 Cal. 58), Govindasamy Pillai v. Ramaswamy Pillai (1909) ILR 32 Mad.
72), Mohant Gyan Prakash Das v. Mt. Dukhan Kuar (AIR 1938 Pat 69), Sh. Ibrar Ahmad v. Mt. Kamni Begum (AIR 1938 All. 451), Ramchandra Jivaji Kanago v. Laxam Shrini Vas. Naik (AIR 1945 PC 54)."
(underling by me for emphasis).
It may be observed that Article 91 of the. Limitation Act; 1908 which was considered by their Lordships provides a period of three years as limitation for seeking the cancellation or setting aside of any instrument when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him. This Article has been considered in numerous other judgments of the Superior Courts. In Malik Ata Ullah and another v. Malik Muhammad Akram Khan and others (PLD 1956 (W.P.) Lahore 264), a learned Division Bench observed that "Article 91 of the Limitation Act will apply only in the case of a voidable instrument, and that if the instrument is void, it will not apply. If, therefore, we had held that the wakf deed was invalid the suit would have been within limitation." In Shamshad Ali Shah and others v. Syed Hassan Shah and others (PLD 1960 (W.P.) Lahore 300) a learned Division Bench of this Court took the view that since "the gift was void in its entirety and, in any case, was void to the extent of 2/3rds, Article 91 of the Limitation Act had no application to the facts of the case as it was not necessary for the plaintiffs to get the deed of gift set aside, the suit was, therefore, not barred by limitation." In Abdul Rehman v. Abdul Haq and others (PLD C.L.R.
1960 (W.P.) Karachi 625), a learned Division Bench reached a conclusion that "we have come to the conclusion that the present is not a case where Art. 91 or Art. 120 of the Limitation Act would apply.
The sale-deed (Exh. 87) executed by Mst. Arbab Khatun is null and void for the reason that at the time of its execution i.e. On 29.7.1935 she was a minor, being less than sixteen years of age, and therefore incompetent to contract. There was no need for filing a suit for the cancellation or setting aside of the sale-deed in question, and in effect the suit of the plaintiff was not one for such cancellation or setting aside of the instrument in question. The sale-deed does not exist in the eye of law and accordingly the claim for possession has to be judged independently of the sale-deed.
Clearly the period of limitation in such a case would be governed by Art. 144 of the Limitation Act."
(underlined for emphasis). Mst. Lzzat v. Allah Ditta (PLJ 1981 SC 420), reiterates the principle stated in Hamida Begum (supra). Quite recently in Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCMR 1245) the Hon'ble Supreme Court of Pakistan had the occasion to deal with a case of somewhat identical nature wherein the impugned sale-deed had been assailed inter alia on the grounds that the same was result of fraud. The question as to the limitation for such suit came to be considered by their lordships and it was held that "the execution of sale-deed dated 10.1.1962, by the plaintiff in favour of defendant No. 2, could not be proved and it could also not be established that the plaintiff had appeared before the Registrar at the time of registration and payment of sale consideration to the plaintiff could also not be substantiated. The sale-deed was, therefore, a void document and the plaintiff was not bound to ask for its cancellation as it could not Constitute a hindrance or impediment in his way to seek possession under Article 142 from the date he was dispossessed. The legal position has been extensively discussed in Muhammad Akbar Shah v. Muhammad Yousuf Shah and others (PLD 1964 SC 329), which has been relied upon by the High Court in the impugned order. It has been laid down in the said judgment." The principle which is applicable cannot be disputed either on authority or in reason. The principle is that if the transaction which is sought to be set aside was a voidable one, it is essential that the transaction be set aside if it be not voidable, but void, the question of setting it aside would riot arise. As to whether a transaction is voidable or void there is a simple criterion did the transaction create any legal effects, that is, did not transaction transfer, create or terminate or otherwise affect any rights?
In a void transaction no legal effects are produced. In a voidable transaction legal effects are produced but some person has the right to avoid the transaction and if the exercise that option the process by which rights were affected is reversed and the original situation as it existed before the transaction is restored (subject to adjustment of equities). If the Court which is dealing with the question of limitation reaches the conclusion after considering the evidence before it that the transaction in dispute by its own force produced legal effects it would be necessary that the transaction be set aside and limitation will be governed by the Article applicable to the setting aside of the transaction. If it comes to the conclusion that by itself the transaction produced no effects no need for setting it aside will arise. It is necessary to state here that a voidable transaction should not be confused with a transaction which prima facie looks valid and in relation to which the burden of proof will be on the party alleging its invalidity. There may be a document in existence a registered deed of sale or mortgage or some other transaction, which is by presumption genuine and the person who purports to be its executant may have the burden on him to show that it is a forgery. Still it is not a voidable transaction because ultimately when the Court comes to the conclusion that it is a forgery it will be found that in fact the document never affected any right. This is the criterion for determining whether a document is void or voidable. Its apparent validity or the question of burden of proof is in this respect irrelevant. No person is bound to sue for setting aside a document just because it is raising a presumption against him. There is no need for the person who is shown to be the executant of the forged document to sue for its cancellation or for setting it aside though he may be taking a risk in allowing the document stand for proof of forgery may become difficult as time passes. A transaction which is not genuine may have been incorporated even in the revenue records which have a presumption of correctness. Still there is no need to have the transaction set aside for Revenue Records are only evidence of it and of not affect title. If the Court finds that there is no true basis for the entry in the record-of-rights its conclusion would be that there never did exist any transaction which affected any rights. "Setting aside" is wholly inappropriate for a document which had produced no legal effect though the expression is sometimes loosely used in respect of a declaration of invalidity of a document."
(portion underlined by me for relevance).
7. The above statement of the legal position obtaining in the matter should clinch the controversy involved herein and there remains no room for doubt that Article 91 or Article 120 of the Limitation Act do not apply where the deed/instrument is found to be null and void. The reliance of the learned counsel for the respondents upon Bashir Ahmad (1989 MLD 4314) (supra) is misplaced inasmuch as the sale-deed in that case was found to be not illegal and the observations as to point of limitation made there were in that context. Likewise, reliance upon Muhammad Bashir (PLD 1995 Lahore 321). Is also inapt as in the present case there are specific findings by the two Courts below on issues Nos. 1 and 2, that the plaintiff had never executed any power-of-attorney and the instrument pursuant thereto were found as null and void. In any case the legal position as propounded by the Hon'ble Supreme Court has the binding force in view of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 and is to be followed.
8. Since the concurrent findings by the Courts below have been in favour of the appellant/plaintiff qua issues Nos. 1 and 2 who have come to the conclusion that Basharat Ali had never been appointed attorney by Ghulam Muhammad, the sale- deed executed by the said Basharat Ali in .Favour of the respondents/defendants (as attorney for Ghulam Muhammad) was null and void the appellant/plaintiff has rightly been found the owner of the property. He was thus entitled to a decree for possession whose suit could not be dismissed on the ground of limitation. The approach of the Courts below qua issue No. 4 was entirely .Erroneous and unsustainable in law and the dismissal of the suit was unwarranted and illegal for that reason.
In such view of the matter this appeal is accepted as a result the suit shall stand decreed. The appellant will be entitled to costs.
RSA Accepted.