' MUHAMMAD AMEER BHATTI, J. --- This appeal is directed against the judgment and decree dated 07.09.2006 passed by the learned Trial Court whereby suit for declaration along with possession and permanent injunction filed by the appellant was dismissed.
2. The brief facts of the case per averments of the plaint are that appellant acquired large number of square land including the disputed one through sale mutation No, 30 dated 09.01.1966. The appellant filed a suit on 09.08.2001 against the respondents seeking declaration to the effect that he was owner of the land in dispute prescribed in the headnote of the suit and transfer of the same through mutation No, 45 dated 19.06.1970 in favour of the respondent was illegal, without consideration, result of fraud, misrepresentation, impersonation and thus void and ineffective to his rights as the plaintiff was minor at that time. He did not appoint any attorney during his minority nor any Court did appoint any guardian for the purpose of alienation of his land. Further averred that the entries in the revenue record on the basis of purported mutation No, 45 are illegal and ineffective. It is also prayer of the appellant/plaintiff that the subsequent transactions of the disputed land by virtue of purported mutation also be declared void, fraudulent and illegal.
3. On the other hand, respondents filed their written statement and raised preliminary objections of no cause of action, limitation, estoppel in addition to controverting the actual position and also claimed that they were bona fide purchasers for value. It was also asserted that out of the same land major portion was re-purchased by the plaintiff in the year 1991 and from that date this has become time-barred.
4. From the divergent pleadings of the parties learned Trial Court framed 11 issues, however, additional issues were also framed by the learned Trial Court vide its order dated 26.01.2005:--- ISSUES.
(1) Whether the plaintiff was minor at the time of attestation of the mutation? OPP
(2) Whether the mutation No, 45, dated 19.06.1970 is outcome of fraud, forgery, misrepresentation without notice to the plaintiff? OPP
(3) Whether the plaintiff has not appointed any person as his attorney? OPP
(4) Whether The subsequent mutation and sale- deeds completely mentioned in the para No, 6 of the plaint are also against the law and facts and liable to be set aside? OPP
(5) Whether the plaintiff is entitled to the decree for declaration as prayed for? OPP'
(6) Whether the mutation was sanctioned in presence of Malik Fatieh Hayat Tiwana, Ahmad Ali and Shahbaz Khan? OPD
(7) Whether the suit is barred by time? OPD
(8) Whether the plaintiff is estopped by his words and conduct? OPD
(9) Whether the plaintiff has waived his right? OPD
(10) Whether the plaintiff has got no cause of action or locus standi? OPD
(11) Whether suit is bad for misjoinder and non-joinder of necessary parties? OPD ADDITIONAL ISSUES.
(11-A) Whether the suit is based on male fide as such its effects upon the suit? OPD (11-B) Whether the plaintiff has not come in the Court with clean hands? OPD (11-C) Whether the plaintiff has not approached revenue authorities for initiating proceedings for cancellation of mutation, if so, its effect upon the suit? OPD (11-D) Whether the suit is not maintainable in its present form? OPD (11-E) Whether the suit is liable to be rejected under Order 7, Rule 11 of CPC? OPD (11-F) Whether the defendants are bona fide purchasers, if so, its effect upon the suit? OPD (11-G) Whether the defendants are entitled to recover special costs u/s. 35-A of CPC, if so, to what extent? OPD (11-H) Whether the suit land and some of its portion have been alienated through the decrees of Civil Courts of competent jurisdiction, if so, its effect upon the suit? OPD
(12) Relief.
' Both of the parties led their evidence according to the onus of issues and the plaintiff produced 5 PWs and also tendered documentary evidence from Ex.P.1 to Ex.P.41. One of the defendant appeared as D.W.1, however, defendants tendered written documents from Ex.D.1 to Ex.D.78. The learned Trial Court after hearing the parties and examining the record of the the suit by means of impugned judgment and decree dated 07.09.2006, hence this appeal.
5. The learned counsel for the appellant contends that the purported mutation No, 45, dated 19.06.1970 was sanctioned when the appellant was minor and it is also an admitted fact that neither did he sell this land himself nor did he appoint any guardian or attorney in this regard, therefore, the transaction was void, ab-initio. According to Section 362 of Muhammadan Law, the minor's property could not be sold out even by his appointed guardian without getting the permission of the Court. He has also placed reliance on Sher Baz Khan & others v. Mst. Malkani Sahibzadi Tiwana and 2 others (PLD 1996 Lahore 483) and Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others (PLD 2003 SC 849). He has also referred the Section of Contract Act to strengthen his case that any transaction executed during the minority could not be considered a valid contract, therefore, the impugned judgment and decree passed by the learned Trial Court being contrary to the law laid down by this Court as well as Hon'ble Supreme Court of Pakistan regarding the transactions held during the minority is not sustainable in the eye of law. It is expedient to reproduce the Section 362 of Muhammadan Law & Contract Act (Sections 11 and 183):---
362. Alienation of immovable property by legal guardian.---A legal guardian of the property minor [section 359] has in no power to sell the immovable property of the minor except in the following cases, namely, (1) where he can obtain double its value; (2) where the minor has no other property and the sale is necessary for the maintenance; (3) where there are debts of the deceased, and no other means of paying them; (4) where there are legacies to be paid, and no other means of paying them; (5) where the expenses exceed the income of the property; (6) where the property is falling into decay; and (7) when the property has been usurped, and the guardian has reason to fear that there is no chance of fair restitution.
C on tra ct A ct: ' Sec.
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.
' Sec.
183. Who may employ agent.--- Any person who is of the age of majority according to the law to which he is subject, and who is of sound mind, may employ an agent.
6. We have given our due consideration to the arguments advanced by the learned counsel for the appellant and to the transfer of land of the minor. We have no doubt in our mind that in order to prove the genuineness of transaction as reflected through mutation of sale, the vendee must prove by positive evidence that transaction was entered for his/her benefit, welfare and consideration was paid so in proof thereof there was something in shape of tangible evidence, otherwise transfer of land into any form would have been void if it had been executed in the minority of the owner, except exception followed. It remains open to challenge by the minor at the attainment of majority on the ground that the transaction had not been made for his/her benefit.
' But here the question before us elaborated and established from the pleadings and the evidence of the parties that after attaining the majority it was incumbent for the minor to agitate the matter before a competent forum, upon acquiring the knowledge, within prescribed per: ad of limitation. It is established from the record that he had to know of the transfer of the disputed land in the year when he attained the majority and subsequently when he repurchased the major portion of the said land from the respondent/defendant and even from that date this suit is hopelessly time barred principle of estoppel is also attracted. Further adds that even without proving those vital aspects of the case, a transaction happening during the minority of any owner could not be declared void. In this regard, the learned counsel for the respondent drew our attention to the Para-3 of the written statement where it was specifically asserted that the plaintiff through mutation No, 758, dated 26.03.1991 re-purchased a major portion of sold land from the defendants.
After this transaction he could not claim that he remained unaware of the transaction executed through mutation No, 45 dated 19.06.1970 during his minority and did not come to his knowledge as it is settled law and its requirement that purports vendee must first verify the ownership of the vendor by examining all the relevant revenue record. He further referred the statement of DW1 where it was categorically deposed regarding the same fact and this portion of examination-in- chief was not cross-examined. Even no suggestion was put to him. Meaning thereby this portion of statement remained un-challenged in cross-examination and amounted to acceptance. He also tendered the mutation through which the portion of the disputed land was transferred to the plaintiff by the defendant in the year 1991 but the suit was filed in the year 2001. Hence from the date of second mutation the suit of the appellant was hopelessly time-barred and he remained silent about the first transaction after attaining the age of majority and after re-purchase of the major portion of the same land from the defendants in the year 1991 by not taking any step to get the impugned transaction annulled for a considerable period is not permissible under the law of limitation and provision of Article 114 of Qanun-e-Shahadat as it amounts to waive of his right if any to get that transaction set aside. Therefore, the emphasis of learned counsel for the respondents that the knowledge of the disputed transaction at least from 1991 is sufficient estoppel against the plaintiff to challenge the said transaction, has substance.
' We are of the view that although the minor's property could hot be transferred even by the appointed guardian without following the restrictions imposed by the provisions as envisaged under Section 362 of Muhammadan Law and the transaction could have been challenged before any Court of law; and if it is not challenged forthwith after acquiring the knowledge of it, then the principle of estoppel squarely operates against the appellant within the purview of the Article 114, Qanun-e-Shahadat. It is settled law if the affectee is aware of certain facts which are likely to cause harm to his rights and adversely affect him and are prejudicial against him and he intentionally permits and allows another person to believe a thing to be true and act on such belief without taking any steps to nullify such adverse fact and instead he sleeps over the matter, then the law does not help the indolent. In this regard we would like to place reliance on a latest law laid down by the Hon'ble Supreme Court of Pakistan reported as Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 SC 212) wherein it was held:- "According to Article 114 of the Qanun-eShahadat, 1984 which reads as "114. Estoppel: When one person has by his declaration, act or omission and intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing", a person is estopped by his own conduct if he though was aware of certain fact(s), which is likely to cause harm to his rights and adversely affect him and is prejudicial against him, avowedly or though some conspicuous act or by omission, intentionally permits and allows another person to believe a thing to be true and act on such belief without taking any steps to controvert or nullify such adverse fact and instead he sleeps over the matter.
In other words, where a person who is aggrieved of a fact, he has a right, rather a duty to object thereto for the safeguard of his right, and if such a person does not object, he shall be held to have waived his right to object and subsequently shall be estopped from raising such objection at a later stage. Such waiver or estoppel may arise from mere silence or inaction or even inconsistent conduct of a person. In the facts of the present case the silence and the conduct of the respondent, which has been extensively highlighted while dilating upon proposition No, 1, is now being relied upon. We would also reiterate some of the relevant facts here, such as that the respondent admittedly came to know about the GPA in favour of Fazal-e-Azeem in the year, 1971 and allegedly moved to the martial law authorities, but did not take recourse to the proper legal action; according to his own statement he was aware of the sale having been made in favour of Manzoor in 1974, but no action was taken for assailing the same in time and he remained silent.
The GPA which is the basis of alleged fraud as mentioned above undisputedly was in the knowledge of the respondent since 1971, but he slept over the matter, and allowed the said GPA to be utilized against his interest, which culminated into the sale firstly in favour of Manzoor Ahmad and thereafter by Manzoor Ahmad in favour of the present appellant. Above all this power of attorney was acted upon and Fazal-e-Azeem in fact virtually procured the exemption of the suit plot on the basis of the said power of attorney; and thereafter entered into an agreement with the LIT (referred to above). The respondent having come to know of the power of attorney did not seek the revocation of the GPA per section 203 of the Contract Act, 1872 or ever issued a notice for the revocation or renunciation of the GPA according to Sections 206 and 207 of the Act ibid or a public notice to renounce the same. He since the year, 1971 never ever bothered to visit the plot in question to see its physical condition, whether it was vacant or had been constructed upon. All these facts put together lead us to no conclusion other than that the rule of estoppel squarely operates against the respondent, within the purview of section 114 ibid. Therefore, the view and the findings of the first two Courts were valid in law, and the opinion formed by the learned High Court, which overlooked the above aspects, is untenable, cannot be sustained and is hereby set aside".
' In the same judgment the object and the significance of the law of limitation has also been elaborated by the Hon'ble Supreme Court in the following manner:- "This law is vital for an orderly and organized society and the people at large, who believe in being governed by systemized law. The obvious object of the law is that if no time constraints and limits are prescribed for pursuing a cause of action and for seeking reliefs/remedies relating to such cause of action, and a person is allowed to sue for the redressal of his grievance within an infinite and unlimited time period, it shall adversely affect the disciplined, and structured judicial process and mechanism of the State, which is sine qua non for any State to perform its functions within the parameters of the Constitution and the rule of law. The object of the law of limitation and the law itself, prescribing time constraints for each cause or case or for seeking any relief or remedy has been examined by the Courts in many a cases, and it has been held to be a valid piece of legislation, and law of the land. It is 'THE LAW' which should be strictly construed and applied in its letter and spirit; and by no stretch of legal interpretation it can be held that such law (i,e, limitation law) is merely a technicality and that too of procedural in nature. Rather from the mandate of section 3 of the Limitation Act, it is' obligatory upon the Court to dismiss a cause/lis which is barred by time even though limitation has not been set out as a defence. And this shows the imperative adherence to and the mandatory application of such law by the Courts. The said law is considered prescriptive and preventive in nature and is held to mean and serve as a major deterrent against the factors and the elements which would affect peace, tranquility and due order of the State and society. The law of limitation requires that a person must approach the Court and take recourse to legal remedies with due diligence, without dilatoriness and negligence and within the time provided by the law; as against choosing his own time for the purpose of bringing forth a legal action at his own whim and desire. Because if that is so permitted to happen, it shall not only result in the misuse of judicial process of the State, but shall also cause, exploitation of the legal system and the society as a whole. This is not permissible in a State which is governed by law and Constitution."
7. Taking into consideration the law laid down by the Hon'ble Supreme Court referred ibid it is held that in order to succeed in getting the relief, the aggrieved party must approach the Court of a competent jurisdiction within the period stipulated by Limitation Act. The significance of the law of limitation as elaborated in the above-referred judgment of the apex Court leaves no room for any indolent for his success as the mandate of Section 3 of the Limitation Act put the obligation upon the Courts to dismiss the cause//is which is barred by limitation even though limitation has not been set out as a defence.
' A cursory glance over the evidence referred by the learned counsel for the respondents renders it crystal clear that the transaction impugned was in the knowledge of the appellant since his attainment of majority. He re-acquired the knowledge at the time when he re-purchased the major portion of the same land from the respondents because it was incumbent upon the appellant to examine and verify the ostensible ownership of proposed vendor. His appointment as a lumberdar of the area in the year 1986 also established sufficient presumption that he had the knowledge about the transaction of sale in favour of the respondents but did not agitate the matter by way of legal action within the prescribed period of limitation. Therefore, we are of the view that the suit of the appellant was hopelessly time-barred.
' Another aspect that despite having the knowledge of illegal transfer of land to the alleged strangers, no effort to enforce his right until 2001 was made, amounts to waive his right to question the impugned sale at the relevant time does not permit him to bring this suit at this belated stage.
Afflux of time and his failure to challenge the transaction within the stipulated period has made him loose the right to ask for a decree qua the land in dispute and hence it is held that the learned Trial Court has properly appreciated the detailed evidence on the record.
8. For what has been discussed above we are of the view that the appellant lost his right to challenge transaction by own his conduct and the law helps vigilant not the indolent. Therefore, we hold that findings of the learned trail Court are in consonance with law and no interference is warranted. Hence this appeal has no merits, thus, dismissed. No order as to costs. R.F.A. Dismissed.