' ABDUL LATIF KHAN, J.---This civil revision has been filed against the judgment and decree dated 5- 7-2011 of learned Additional District Judge/Izafi Zilla Qazi, Dir Lower, whereby appeal filed by the petitioner against the judgment and decree dated 18-2-2010 was dismissed.
2. Facts of the case are that plaintiff/petitioner instituted a suit against defendants/respondents for declaration which was contested by filing written statement. Learned trial Court when found the parties on cross road, framed issues from the pleadings of the parties and after recording pro and contra evidence dismissed the suit, vide judgment and decree dated 18-2-2010.
3. Feeling aggrieved, the petitioner filed an appeal, which was also dismissed by the learned Additional District Judge/Izafi Zila Qazi, Dir Lower, vide judgment and decree dated 5-7-2011, hence, the present revision.
4. Learned counsel for petitioner contended that Courts below have failed to appreciate the available record in its true perspective. It is contended that petitioner/plaintiff and father of respondent No,1 were brothers inter se and were original owners of the suit property and this fact is admitted by the other side too, however, relied upon two documents, Exh.DW-1/3 and Exh.DW1/4, by dint of which, allegedly purchased the suit property from petitioner and his brother. It was argued that petitioner was aged about eleven years at the time of alleged transaction. He referred to school certificate and CNIC and argued that being minor petitioner was not capable to enter into any transaction and would be ab initio void, if shown to have executed on his behalf. He argued that mischief of limitation has no applicability to the instant matter.
5. As against that learned counsel for the respondents contended that suit has been filed in the year, 2004. He added that petitioner after attaining age of majority has failed to come to Court within prescribed period of limitation. He added that petitioner came to village in the year, 1994, and get married there in the year, 1980, but has not raised any objection. He referred to the statement of petitioner, who deposed as P.W.1 and pointed out various admissions on his part, leading to conclusion that he had not challenged the deed after attaining age of majority and as such stopped to question the same now after prolong delay.
6. I have considered arguments of learned counsel for parties and have gone through record of the case.
7. The perusal of record reveals that petitioner/plaintiff filed a suit for declaration to the effect that property in dispute owned by plaintiff and defendant No, 1 as ancestral property and deed dated 20-1-1965 and 17 Ramazan 1381 Hijri (14 Safar 1385) regarding suit property to the extent of lis is wrong and ineffective upon his rights. The plaintiff mainly focused on the validity of deed as it is executed during his minority at the age about 11 years, incapable to execute the same and as such being ab initio void, ineffective upon his rights. He produced P.W.3, Bakht Zada, Teacher, who produced Exh.P.W.3/1, school admission register, wherein date of birth of plaintiff has been shown as 2-9-1953. The deed executed on 20-1-1965 and at that time age of the plaintiff was almost 11 years and would be ab initio void, if it executed as alleged and of no legal effect as minor cannot enter into any transaction as provided under section 11 of Contract Act which is reproduce for guidance.
S.11. Who are competent to contract. Every person is competent to contract who is of the age of majority according to the law to which he is subject and who is of sound mind, and is not disqualified from contracting by any law to which he is subject.
8. A look at the provision of law suggests that any agreement by minor would be void ab initio.
Reliance is placed on 2008 SCMR 1031. The defendant himself admitted in cross-examination that plaintiff was aged about 15/16 years at the time of execution of deed and if it is taken as such even then he was minor and transaction would be of no legal effect. The vendor aged about 11 years was not sui juris to validly enter into any transaction of sale and would be void ab initio as incapable and no right or liability would arise in favour of vendee from void transaction. Wisdom is derived from Mofizan's case (PLD 2004 Lahore 255).
9. The plaintiff has claimed his knowledge of transaction some time prior to filing of instant suit on denial of his rights by defendant No,1 and has reiterated his stance in the evidence. The property was unpartitioned remained in possession of plaintiff and DW-1 (uncle and nephew) and no evidence has been brought on file that he was not minor at the relevant time and instead defendant with taxing and searching cross-examination tried to give an impression that he failed to question the transaction on attaining age of majority. No doubt, he failed to do so C but the initial question as whether he was in know of this transaction prior to filling of suit and has waived his right, has not been proved by the defendant and obviously burden to this effect lies on defendant. Even otherwise a void to transaction can be questioned, the moment it came into the knowledge and limitation would start from knowledge. Apart from this, void transaction bestow no right on the vendee and can be annulled along with subsequent events as the superstructure if any raised would crumbled down, if the original transaction was ab initio void.
10. The burden to prove the deed heavily lies on the defendant, beneficiary of the deed, who has failed to discharge the same. DW-2 D Rahim Jan deposed as marginal witness of Ex-DW 1/3. He has admitted in cross-examination that his name is Abdur Rahim and a decree has been proposed by court in a case in his favour as Abdur Rahim instead of Rahim Jan. He produced CNIC wherein he has been shown as Abdur Rahim. The deed contains no marginal witness in the name of Abdur Rahim. His name and parentage has not been mentioned on the deed and he has admitted this fact in cross-examination. DW-3 Gul Rahman deposed that he. Has not read the deed and simply put his signature on Ex DW 1/4. He has admitted that deed was not read over to him and has not seen the same, as to whether it was scribed in urdu or persian. No boundaries were given in the deed. He has candidly admitted that he is not witness of sold property. He failed to mention the date or even year of and scribing of document. DW-4 deposed as Marginal witness of both the deeds Exh.DW-1/3 and Exh. DW-1/4. The other marginal witnesses numerous in number have not been produced and those referred above are not aware of transaction, description of land and payment of sale consideration, leads to conclusion that defendants/respondent failed to prove the deeds as required under the law.
11. The courts below have not considered the vital aspect of admitted disability of the plaintiff, as minor at the time of execution of deeds and payment of sale consideration and instead focused the mischief of limitation and non-situated the plaintiff by dint of impugned judgments, ignoring the legal aspect of the matter that ab initio void transaction would not bestow any right in favour of vendee/respondent as such contract could not be enforced as sword nor can be taken in defence as shield to claim thereunder a right or title. The lis before them has not been properly decided with conscious and application of independent mind. For the aforesaid reasons, this civil revision is accepted; judgment and decree of courts below are set aside and suit of plaintiff- petitioner is decreed as prayed for with no order as to costs.