SHAKEEL AHMAD, J:- Through this 'single judgment, I propose to decide the instant revision petition bearing No. 464-P/2011 and connected revision petition No. 131-P/2011, as both the revision petitions have arisen out of the impugned judgment.
2. Facts of revision petition No. 464-P/2011:-The petitioner/plaintiff brought a suit bearing No. 353/1 for ejectment of the respondents from the house constructed on the land measuring 1 kanal 2 marlas and Ghair mornkin Danda 1 kanal 2 marlas situated in khasra No. 3728 at moza Kalpani as per fard Jamabandi for the year 2002-03 and recovery of rent at the rate of Rs. 3600/- per year, due since last three years.
3. Facts of revision petition No. 131-P/2011:- The petitioner brought a suit No. 351/1 on 27.09.2005, against the respondents seeking declaration that the land measuring 2 kanals and 4 marlas situated in khasra No. 3738 was purchased by their predecessor in interest Sher Syed through Iqrar Nama dated 02.11.1985 and exchange deed dated 25.03.1980 which is in their occupation and that they have constructed house on it, and made improvements in it. They also sought declaration to the effect that entrance of the name of respondents in the revenue record as owners is illegal, without lawful authority , jurisdiction and the same is liable to be rectified. As a consequential relief they sought permanent '.injunction restraining the respondents from alienating the suit property and also prayed for possess on of the property in dispute, if their possession was not proved.
4. Vide order dated 23.11.2005, on the joint statement of the parties, both the suits were consolidated. After service of summons the defendants put their appearance in both the suits, filed their written statements, however, the defendant No.3 in both the suits submitted cognovits. From the divergent pleadings of the parties consolidated issues were framed and parties were directed to produce evidence.
5. On the conclusion of trial, the suit No. 351/1 of 2005, was partially decreed and suit No. 353/1 of 2005 was dismissed through consolidated judgment. Not contented with the same, the petitioner filed appeal which was accepted and the case was remanded back by the learned appellate court, for decision afresh.
6. After remand of the case by the learned appeal court, the following two additional issues were framed.
1. Whether the plaintiff Sher Saeed (plaintiff in Suit No. 351/1) has made improvements in the property in dispute by spending millions of rupees?
2. Whether the iqrar nama dated 02.11.1985 and exchange deed dated 25.03.1980 are fake, fictitious and concocted one?
7. However , both the parties did not opt to produce evidence and agreed to decide the case on the evidence already recorded before the learned trial court, in this respect their joint statement was recorded on 21.06.2008. The learned trial court after hearing the arguments: of both the learned counsel for the parties, partially decreed the suit No. 351/1 to the extent of cost of improvements of Rs. 10 lakh and rest of the suit was dismissed ,and the suit No. 353/1 was decreed as prayed for, vide consolidated judgment dated 26.11.2009. Not contented with the same, both the parties filed appeal before the learned appellate court, which were dismissed through a consolidated judgment dated 23.09.2010, and maintained the judgment and decree of the learned trial court. Feeling aggrieved both the parties have filed present revision petitions.
8. It has been argued by the learned counsel for the petitioners in C.R No. 464-P/2011; that impugned judgment and decree of the learned lower fora to the extent of cost of improvements is illegal, result of misreading and non-reading of evidence on record; that there is nothing on record to show that the respondents have made improvements in the property in dispute; that the learned lower fora misconceived the report of local commission and drawn a wrong conclusion that the improvements was made by the respondents; that it has been proved through evidence that the iqrar nama dated. 02.11.1985 and exchange deed dated 25.03.1980 are fake and fictitious, therefore, the suit No. 351/1 of 2005 was rightly dismissed by the learned lower fora, which needs no interference. He lastly prayed for setting aside the impugned judgment passed in suit No. 351/1, whereby the suit was partially decreed and upheld by the learned appellate court.
9. Conversely, the learned counsel representing the respondents (petitioners in CAZ. No. 131-P/2011) vociferously argued that the judgment and decree in suit No. 351/1 whereby his rest of the claim was dismissed, is illegal and result of misreading and non-reading of evidence in support of his contention, he relied upon the report of local commission; that judgment and decree passed in favour of the petitioners (plaintiff in suit No. 353/1 of 2005) is illegal, without lawful authority and result of mis-reading and non- reading of the evidence on record, which resulted in gross miscarriage' of justice, therefore, warrants interference.
10. I have heard the arguments of the learned counsel for the parties and scanned the record with their eminent assistance.
11. Perusal of record reveals that claim of the plaintiff in suit No. 351/1 mainly based on the exchange deed dated 25.03.1980, Ex PW2/2 and iqar nama dated 02.11.1985 Ex PW2/3, admittedly, both these documents were written on a plain paper ,neither on stamp paper nor attested by the notary public nor by oath commissioner nor registered under the registration Act. It was alleged by the respondents that both these documents were signed by the petitioner Umar Akhtar. Perusal of CNIC of the petitioner, exhibited as Ex DW 2/3 reveals that he was born in the year 1971, when the alleged exchange deed dated 25.03.1980 (Ex DW2/2) was executed, his age was 09 years and when iqrar nama dated 02.11.198 5 was Written, he was 14 years old, admittedly , he was minor during those days, at that time, his mother was alive, but these documents were neither executed through his next friend nor his duly appointed guardian nor it carries signature or thumb impression of his. mother . Now, the question arises as to whether the contract if any, executed by a minor is legal and enforceable at law. It will be advantageous to reproduce Section 11 of the Contract Act, 1872, which reads as, "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".
12. A plain reading of the ibid section reflects that any contract or transaction entered into with minor is void ab.- initio. Section 11 of the Contract Act makes the minor incompetent to enter into any contract and no right or liability could be attached to or arise out of a void contract. In this respect reliance can well be placed on the cases reported as "Abdul Zahir Vs Haji Gulab" 2000 CLC 04, "Shahbaz Rasool Vs Aamir Imran" 2011 CLC 1941, "Mst. Gulshan Hamid Vs Abdul Rahman and others" 2010 SCMR 334 and "Parvez Alam Khan VS Muhammad Mukhtar Khan, 2001 CLC 1489 .
13. Contrary to the above clause, there are exceptions that when the property of a person, who is not attaining the age of majority, can be alienated through his guardian. Paragraph Nos. 359, 360 and 361 of D.F. Mullah's Muhammadan Law, are relevant, therefore, same are reproduced as under:-- "359, Legal Guardian of propertyThe following persons are entitled in the order mentioned below to be guardians of the property of a minor:--
(1) the father;
(2) the executor appointed by the father's will;
(3) the father's father;
(4) the executor appointed by the will of the father's father .
360. Guardian of property appointed by Court. In &fault of the legal guardians mentioned in section 359, the duly of appointing a guardian for the protection and preservation of the minor's property falls on the judge as representing the State".
361. Detach) guardian. A person may neither be a legal guardian (S.359) nor a guardian appointed by the Court (S. 360), but may have voluntarily Placed himself in charge Of the person and property of a minor . Such a person is called de facto guardian. A de facto guardian is merely a custodian of the person and property of the minor".
As observed above, admittedly, the alleged transaction was not executed by the minor through his guardian or next friend, therefore, the case of the respondents does not fall within the exception provided under the Muhammadan Law quoted above.
14. Perusal of record f further discloses that neither the scriber nor the marginal witnesses of the exchange deed Lx PW2/2 were produced nor any explanation was given for not producing 'these witnesses. Only one marginal witness, Talizer PW 3, of iqrar nama Ex PW213, was produced, again no explanation or reason Was given for not producing the second Marginal witness or scriber, which is a serious blow and fatal tea the case of the respondents, therefore, it can safely be held that these documents could not be proved being hit by Article 79 of Qanoon-e-Shahadat Order, 1984. In this respect reliance may be placed on the case reported as "Sherin Zada and 2 others Vs imdad Huss ain and 10 others" 2010 MLD 1152, therefore, findings of the learned lower fora to that extent are correct and result of proper appreciation of evidence on record and needs no interference.
15. Now adverting to the possession of the respondents as to whether the possession was as tenant or not, and whether they made improvements in the property in dispute or not.? The learned counsel in support of his stance mainly relied upon the report of local commission Ex CW1/4. On the other hand it was stated by the PW-2 that the respondents were inducted as tenant in the suit house on the payment of Rs.
3600/- per year and entire construction had been carried out by his mother and he produced Bakhtiar as DW-3 in Support of his contention. Perusal of Fard Ex DWI/1 reveals that respondents are recorded as Kashtkar of the petitioner in the column of cultivation in khasra No. 3728 at Moza Kalpani on payment of 04 monds wheat.
16. Perusal of the local commission report Ex PW1/4 reflects that, no doubt it was reported by the local commission that :improvements were made in the suit property, but by whom, his report is silent. Even otherwise the improvement, if any, made by the respondents without prior consent of his landlord/owner is not entertainable as no evidence was produced by the respondents showing that improvements, if any, were made by them in the suit property with the prior consent of his: . . landlord/owner, therefore, findings of the learned lower fora on issue No.11 is illegal and against the evidence on record therefore the same is reversed, as discussed above.
17. For the reasons discussed herein above, the civil revision No. 464-P/2011 filed by the petitioner is allowed and the impugned judgment and decree of the learned lower fora partially decreeing the suit No. 351/1, is hereby set aside and the connected revision petition bearing No. 131-P/2011 being bereft of merits is dismissed.