ORDER CH. MUHAMMAD TARIQ, J.---This civil revision has been directed against the judgment and decree dated 11-5-2002 passed by learned Additional District Judge, Jhelum who dismissed the appeal and maintained the judgment and decree of learned trial court.
2. Brief facts of the case are that the predecessor-in-interest of the petitioners was Muhammad Ismail son of Eido, whereas those of respondents was Muhammad Ibrahim son of Eido. Both Muhammad Ismail and Muhammad Ibrahim being real brothers got transferred two shops from the Settlement Department in the year 1963. The shop transferred to Muhammad Ibrahim bore No. 478/7, whereas that of Muhammad Ismail bore No.420/7. Although Permanent Transfer Orders were issued in favour of two brothers in the year, 1963 but provisionally the shops were transferred in their names much earlier. Further contends that Muhammad Ibrahim and Muhammad Ismail got exchanged their respective shops according to their suitability, by virtue of which Shop No. 420/7 was taken over by Muhammad Ibrahim son of Eido, the predecessor-in-interest of respondents, whereas Shop No. 478/7 was got by Muhammad Ismail son of Eido, the predecessor-in-interest of petitioners. Both the said brothers not only exchanged the shops but also their respective physical Possession and title deeds. Further averred that Muhammad Ibrahim. Predecessor-Interest of respondents expired on 30-11-1961. Mst. Rafiqan was the widow of Muhammad Ibrahim and the mother of respondents. Further that the shop got in exchange by the Predecessor-in interest of respondents was further sold away to one Khawaja Maqsood ul Hassan son of Khawaja Mukhtar Ahmad and a decree was duly passed acknowledging the said fact from the Court of learned Civil Judge, Pind Dadan Khan on 1-9-1969. Further contends that Mst. Rafiqan also acknowledge the factum of exchange being completed between the two brothers Muhammad Ibrahim and Muhammad Ismail of their respective shops in an `Iqrarnama' dated 3-9-1964 (Exh.P-3) which was also produced by the petitioners as Exh.D.1. Further alleges that the petitioners continued to enjoy the exclusive possession of Shop No. 478/7, when in the year 1985 through two registered sale- deeds dated 16-5-1985, the petitioners Nos. 3 to 5 transferred their rights in favour of Muhammad Munir son of Muhammad Yasin and Muhammad Hanif son of Muhammad Sharif. Further contends that the respondents then contrived to institute a suit for Possession on 6-10-1985 claiming that they are the owners of Shop No.478/7 through their Predecessor in interest Muhammad Ibrahim. It was alleged by them that Muhammad Ibrahim and Muhammad Ismail have been doing their business jointly in the shop in question and that after their death, it were the petitioners who have been managing the business and the respondents further challenged the sale-deeds dated 16-5- 1985 as being fraudulent and of no legal effect upon their rights. It is important to submit that the respondents asserted in Para 3 of the plaint that the petitioners claim the shop to have been transferred through their mother i.e. Mst. Rafiqan and they further pleaded that their mother did not transfer the shop in question at all and they also further alleged that the document of transfer attributed to their mother Mst. Rafiqan was the result of fraud and misrepresentation and it did not bear the thumb-impression of their late mother, in the alternative the respondents alleged that if it is proved that their late mother had executed a document in favour of the petitioners, then the said document of transfer was illegal and without lawful authority as she had no right to transfer the proprietary rights of the respondents, who were minors at the time of said deed and that's why the respondents claimed that the document put forward by the petitioners is void and ineffective qua the rights of respondents. On the basis of these contentions, the respondents instituted the suit for Possession.
3. The suit was resisted by the respondents. Learned trial court after framing of issues and recording of oral as well as documentary evidence of the parties, vide judgment and decree dated 14-12-2000, decreed the suit of respondents/plaintiffs. The petitioners/ defendants filed an appeal which was also dismissed on 11-5-2002 by the learned District Judge, Jhelum. Hence this civil revision.
4. Learned counsel for the petitioners inter alia contends that the impugned judgments and decrees passed by both learned courts below are against law and fact while giving finding on Issue No.2, the trial court observed that plaintiffs Nos. 1 to 3 were minors when the sale deed was executed and learned trial court considered the decree Exh.D-8 as sale deed which was obtained by Khawaja Maqsood-ul-Hassan who appeared as P.W.3 and learned trial court has wrongly held that decrees are void qua the rights of respondents as they were minors at that time. Further contends that respondents along with their mother were impleaded party in the said suit. The suit hotly contested by the mother of other alleged respondents. The decree was passed in 1963 which has obtained finality that it was not further assailed before the higher forums. Further contends that Exh.D-1 was fully proved but both the courts below have not appreciated Exh.D-1 as well as Exh.D-8. Learned courts below have also not properly interpreted the provisions of sections 65 and 70 of Contract Act, 1872, similarly the finding of both the courts below on Issue No.5 are erroneous, therefore, civil revision be accepted, impugned judgments and decrees, passed by both the courts below be set aside and suit of respondents/plaintiffs be dismissed with cost throughout.
5. Conversely, learned counsel for the respondents has vehemently opposed this civil revision and contends that Ex.P-1 is a forged document because despite the knowledge, the petitioners have not produced its marginal witnesses nor even asked the court to send the thumb impression and signatures affixed on the Ex.P-1 for comparison. It was further asserted that admittedly the sons of Ibarahim deceased were minors at the time of execution of so called exchange deed and petitioners could not produce in evidence that Mst. Rafiqan the mother of minors was appointed as guardian for the person and property of minor, so, if at all she had entered into any transaction on behalf of minors such agreement is void ab initio. Lastly, while touching the question of limitation, learned counsel for respondents have pointed out. The photocopies of identity cards of respondents Nos. 1 to 3 Exh.P.-7 to Ex.P-9, the perusal of which highlights that the suit filed by respondents is well within the time, therefore, civil revision be dismissed.
6. Arguments heard. Record perused.
7. There is no cavel in the proposition that Muhammad Ibrahim was the owner in possession of disputed Shop No. 478/7. It is further established from the record that both the brothers i.e. Muhammad Ismail and Muhammad Ibrahim were running a joint business in both the shops allotted to Muhammad Ibrahim as well as to Muhammad Ismail. The contention of petitioner that there was a previous oral exchange made by the two brothers is not established from the record.
However, the agreement dated 4-9-1964 which is not a registered document could not be proved by the petitioners despite the fact that respondents side categorically denied the execution of alleged agreement dated 4-9-1964. In such like situation, when the execution of any document is denied, the onus shifts on the beneficiary to prove such document by producing marginal witnesses but in the instant case, no marginal witnesses was produced to established the execution of agreement of exchange. Therefore, both the learned courts below have rightly held that the execution of agreement could not be proved.
8. The next question is about the limitation. There is no denial that at the time of execution of alleged agreement, respondents Nos.1 to 3 were minors. This fact is further established from Exh.P-1 to Exh.P-9, the copies of their identity cards, therefore, suit for possession filed by the respondents is well within time. Even in agreement Exh.P-1, the respondents Nos.1 to 3 were shown as minors and there is no such evidence that respondents No.4, the mother of respondents Nos.1 to 3 procured any legal authority from a court of law to enter into a transaction of alienation of minors property.
The business of both the brothers i.e. Muhammad Ibrahim and Muhammad Ismail remained joint till December, 1973. The suit was filed on 6-10-1985 which is well within time as the period for filing a suit for possession has been provided 12 years under Article 144 of Limitation Act. Learned counsel for the petitioner could not point out any illegality, misreading or non-reading of evidence in the impugned judgment and decree. The instant civil revision is devoid of any merit, no interference is called for, same is dismissed..