MUJAIHD MUSTAQEEM AHMED,J.- Tersely the facts culminating into instant civil revision and necessary for its adjudication are that respondent was owner in possession of land measuring 8 kanal situated in Mauza Obatta Tehsil Khanpur, District Rahim Yar Khan. Purportedly, she sold away the same vide mutation of sale No. 978 attested on 8.03.1997 (Ex.P-2) in consideration of Rs.50,000 to petitioner No.1 Ghulam Akbar, (petitioner No.1), who vide mutation of sale No.1750 and Mutation of tamleek No.1754, both attested on 19.06.2006, further transferred his property in favour of petitioners. No.3 and 4 to 7 respectively. On 24.09.2009 respondent lady filed a suit for declaration to the effect that she was owner in possession of suit property and impugned mutation of sale Ex.P-2 was based on fraud, collusion, without any consideration and as such in-effecti ve upon her rights. She claimed that she had not sold away this property to petitioner No.1. She also assailed subsequent mutations of sale Ex.P-3 and Ex.P-4 being in- ef fective upon her vested rights.
2. The present petitioners contested the suit mainly on the grounds that respondent with her free will sold away the suit property to petitioner No.1 and at the time of attestation of mutation of sale, her father was also present and possession was also delivered to him (petitioner/vendee). To resolve the controversy in between the parties, ten issues were framed. Both the parties led evidence in support of their respective pleas. Vide judgment dated 02.03.2011 passed by the learned Civil Judge Khanpur suit of respondent was dismissed.
Therefore, she filed an appeal which was accepted by the learned Addl. District Judge Khanpur, vide judgment and decree dated 15.32.2014 mainly on the ground that 'at the time of entry and attestation of mutation of sale, she was minor. Feeling aggrieved by the impugned judgment and decree passed by the learned Addl.
District Judge Khanpur, the petitioners have assailed the same through the instant civil revision maintaining that same is against facts, law, result of misreading and non-reading of evidence and as such not sustainable under the law.
3. Arguments heard. Record perused.
4. The initial onus of disproving the validity of sale transaction lies on the respondent, who as PW-1 deposed that she has leased out 8 kanal land to respondents No.1 and three years prior to date of evidence, he stopped payment of lease money. Subsequently, she came to know about the impugned mutation of sale. She categorically stated that she had never appeared before the revenue officer for attestation of mutation of sale and she had neither received any sale consideration, nor affixed her signature/thumb mark on impugned mutation of sale. She further deposed that neither her Identity Card number was incorporated in the impugned mutation of sale nor her photograph was pasted on it, to establish her identity (and presence before revenue officer). During cross-examination she stated that in the year 1997 she was aged 16/17 years and student of 8 class. PW-2 Abdul .7asheed also nodded in favour of respondent. As such in view of case law reported as 2012 SCMR 1373 (Supreme Court of Pakistan) Noor Muhammad and others versus Mst. Azmat-e-Bibi; 2007 YLR 1770 (Lahore) Qasim All Versus Sher Muhammad; 2005 CLC 180 (Peshawar) ) Fida Hussain and others versus Abdul Aziz, the onus shifted towards petitioners/beneficiaries of transaction to establish that mutation of sale was validly attested.
Admittedly, petitioner No.1 was tenant of respondent, as such under Article 125 of Qanun-e-Shahadat Order 1984 also onus lies on petitioners to prove termination of such relationship, on the basis of alleged sale.
5. DW-1 Ghulam Akbar (petitioner No.1) in his examination in chief supported the version taken in written statement. During cross-examination he conceded that neither photograph of respondent nor her Identity Card was appended with the mutation and at the time of attestation of Mutation of sale Revenue Officer asked from the respondent her age but he was riot memorizing her reply in this context. He showed his lack of knowledge that at the time of attestation of impugned mutation of sale, respondent was of 13/14 years. DW-2 Noor Muhammad a close relative of petitioners and attesting witness of mutation supported the case of petitioners. In cross- examination he conceded that at the time of attestation of mutation, respondent was in veil and he had not seen her face and at that time her age was 16/17 years. During cross examination he further deposed that petitioner No.1 was not his relative, whereas petitioner No.1 has admitted that DW-2 was his close relative.
As such it is established that DW-2 is not a truthful witness.
6. Ex.P-2, is copy of impugned mutation of sale. Ex.D-2 is copy of jamabandi for the year 2001-2002. Ex.D-3 is copy of Khasra Girdawari for crop of Kharif 2006 in which petitioner No.1 is recorded in column of possession as co-sharer.
7. In the instant case neither Revenue Officer nor revenue Patwari has come in witness box to establish that mutation of sale was validly attested in favour of petitioner No.l. In case reported as PLD 2003 SC 678 (DB Judgment) Muhammad Ikram and another versus Altaf Ahmad and 2015 MLD 1736 (Peshawar) Zahir Shah versus Mst. Fatehoon and 9 others, it has been laid down that non-production of such witnesses was fatal to the case of beneficiary of mutation.
8. Learned counsel for the petitioners while referring the above noticed revenue record and relying on case law reported as PLJ 2008 S.C. 775 (Appellate Jurisdiction) Mehr Khan, etc. vs. Mst. Basaee, etc., 2007 SCMR 614 Muhammad Amir and others vs. Mst. Beevi and others, has maintained that mutation of sale stood incorporated in record of rights and as such carries presumption of truth. On the other hand counsel for the respondent referring case law reported as 2012 SCMR 1373 supra has maintained that mutation of salt itself did not create title and beneficiary of such transaction is under legal obligation to prove that transferor did part with the ownership of property voluntarily. Learned counsel for the respondent has further maintained that from the testimony of DWs and omission of revenue officer to incorporate CNIC number of respondent, it is well established that respondent was below 18 years of age at the time of attestation of mutation and as such she was not competent to sell the land. Section 11 of Contract Act 1872 deals with competence of a person to enter into a contract and same is reproduced for ready reference:- "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."th In precedent 2008 SCMR 1031 Muhammad Ali through L.Rs versus Manzoor Ahmad, while interpreting Sec.11 of Contract Act 1872, it has been held that agreement by person under legal disability (a minor) would be void ab initio and even incapable of rectification or confirmation, after attaining age of majority as law forbids such transaction. In A.I.R 1919 Privy Council, it has been held that where a minor purports to contract, his alleged contract is void and not merely voidable. In 33 Indian Cases 133 and A.I.R. 1961 Patna 21, it has been authoritatively laid down that a minor cannot make any valid contract. In 2016 CLC Note 147, {(Peshawar (E.I.Khan Bench)} and 2003 YLR 874 Lahore (D.B.) Faqir Muhammad vs. Zahoor Ahmad and 6 others, also similar view has been expressed. Case law reported as 2000 MLD 251(Lahore)
(D.B.) Noor Muhammad and another versus Muhammad Ishaq and another, 2003 YLR 1870 (Lahore)
Muhammad Aslam and 2 others vs. Ameer Muhammad Khan and others, PLJ 2004 Lahore 133 (Rawalpindi Bench Rawalpindi) Muhammad Aslam and 2 others versus Ameer Muhammad Khan(deceased) through L.Rs and 13 others and 2001 CLC 551 (Lahore) Musaddaq Ali Khan and 6 others versus Sharif Rahat Qureshi and 10 others also support this legal preposition. In PLD 1996 Lahore 483 (D.B.), it has been held that any contract or transaction entered into with minor was void ab initio, as minor could not give consent to create any binding contract. Even recording of presence of father of minor by Revenue Officer, or signature of father on mutation sheet would not prove that he had sold land in dispute and also for the interest and welfare of minor. It was further held that in order to prove genuineness of oral transaction reflected through mutation of sale, particularly when same was relating to property of minor and female, vendee must prove by positive evidence that transaction was entered into with free will and consent of minor and that in case of minor, sale was for her benefit and welfare and consideration had passed on and in proof thereof, there was something in black and white and that in case of a female even if she was major, independent advice was available at the time of entering into transaction. The facts of the case in hand are identical and as such the precedent is aptly applicable. In view of principle laid down in above rich case law, it is consistent and settled law that minor is incompetent to sell property. As such learned Addl. District Judge has rightly concluded that impugned mutation of sale is not valid one and is in-effective upon the rights of the respondent. The findings of learned Addl. District Judge, in this respect are un-exceptional one and call for no interference by this Court in its revisional jurisdiction.
9. The impugned mutation of sale was attested on the basis of fraud, without any consideration and suffered from legal disability of vendor being minor as such it was void transaction in view of case law PLD 1964 S.C. 329 Muhammad Akbar vs. Mohammad Yusaf Shah and others, PLD 1975 S.C. 624, Mst. Hameeda Begum Vs. Murad Begum and as per settled law there is no limitation to assail the void transaction. In precedent 2016 SCMR 1417, Peer Bakhsh Vs. Mst. Khan Zadi and others, it has been laid down that limitation did not run against a void transaction. Thus the learned Addl. District Judge has rightly concluded that suit filed by the respondent is well in time.
10. As a sequel of above discussion and keeping in consideration the peculiar facts and circumstances of this case, the findings of learned Addl. District Judge on crucial issues are based on proper appreciation of evidence and same do not suffer from misreading and non-reading of evidence. The learned Appellate Court has rightly, justly exercised the jurisdiction vested with it, to protect the rights of minor and struck down sale transaction based on fraud, without any consideration. As such the instant revision petition, being devoid of any merits, stands dismissed.