' The facts of the case, briefly stated, are that the suit for possession of 5 kanals 16 marlas of land comprising of Khasras Nos. 779 and 780 filed by Lajbar and others (respondents 1 to 3) was decreed by the Senior Civil Judge, Mardan, on 21st February, 1973. The appeal filed by the petitioners, who were defendants in the case, was dismissed by the learned District Judge, Mardan, on 16th September, 1976. According to the plaintiffs their father Pazir, who was also the predecessor-in-interest of Mst. Akbaro, Taj Mahalla, Tajbaro and Mst. Khudejan, owned 11 kanals and 114 marlas of land out of which half of the share i. e., 5 kanals and 16 marlas belonged to the plaintiffs. By a registered sale-deed, dated 11th May, 1942 Mst. Akbaro, Taj Mahalla, Tajbaro (the major daughters of Pazir) and Mst. Khudejan widow of Pazir had sold the entire land measuring 11 kanals and 11 marlas in favour of one Qamar Din. The share of Lajbar, Mst. Noor Mahalla and Mst.
Bakhat Jana (plaintiffs), who were minors at the time, was also sold by their mother Mst. Khudejan acting as a guardian on their behalf. However, in sale Mutation No, 1989 attested on 31st July, 1942 the share of the minors was not mutated in the name of Qamar Din. The sale was successfully pre- empted by one Zamin, who was a brother of the original owner Pazir, by instituting Suit No, 99/1, decided on 1st June, 1943. In the pre-emption suit the minor children of Pazir were also impleaded as a party through Mst. Khudejan, their mother, as guardian ad litem. No objection to the sale of minors' share was taken in the suit by their guardian perhaps because the guardian herself had sold away the share of the minors which was also the subject-matter of the pre-emption suit. Thus, Zamin became the owner of the entire land by virtue of the preemption decree and the consequent sale mutation in his favour. Subsequently, he sold 7 kanals 41 marlas in favour of his son Salar Din, who later on sold 3 kanals 4 mar/as to Saadullah and Kiramatullah and also gave them 6 kanals and 16 mar/as by way of any exchange in lieu of some land out of Khasra No 1726. In view of the aforesaid transactions the names of all the heirs of Pazir including the minors were omitted from the revenue record. In the present suit instituted on 19th March, 1972 the plaintiffs alleged that they, being minors, were unaware of the aforesaid transaction and the omission of their names from the revenue record became known to them about a month before the institution of the suit when they obtainetheopy of farad jamabandi to lodge a suit for the recovery of produce against the defendants. Saler Din and others, defendants in the case, vehemently contested the suit who raised a number of pleas including that of limitation and adverse possession. Benefit under section 41 of the Transfer of Property Act, 1 882, was also claimed by defendants Nos. 7 and 8.
2. The learned trial Court, after considering the evidence, came to the conclusion that the parties were admittedly co-sharers in the suit land and, therefore, in the absence of any ouster or overt act the question of adverse possession would not arise in the case. It was also held that the sale of the minors' share by their mother, who was a de facto guardian, was void ab initio and as such it need not have been set aside. Defendants Nos. 7 and 8 were not held entitled to the protection under section 41 of the Transfer of Property Act. In this view of the matter the suit of the plaintiffs was held within time and the decree prayed for was granted on 21st February, 1973. In the appeal filed by the defendants the learned District Judge, by relying on the case reported in AIR 1937 Sind 157, also held that the sale of the minors' property by their mother, who was a de facto guardian, was void.
Reference was also made to Ahmad Khan v. Rasool Shah (1) wherein it was held that a de facto guardian of the minors had no power to transfer any right or interest in the immovable property of the minors and that such a transfer was not merely voidable but void. The learned District Judge also concluded that all the subsequent transactions based on a void sale were invalid and, therefore, the plaintiffs were rightly granted the decree prayed for. The plea of adverse possession of the defendants also did not prevail, for it was held that the parties were in possession of the property as co-sharers.
3. In support of the revision it is contended that the suit of the plaintiffs was barred by time and in view of the adverse possession of the defendants the decree prayed for should not have been granted. On the other hand the learned counsel for the respondents supported the judgments of the lower Courts and contended that the sale of the minors' property by the de facto guardian being void ab initio, the defendants could not claim any interest in the suit land nor the plea of adverse possession was available to them.
4. A reference to the revenue record would show that in the jamabandi of 1 940-41, Zamin and Pazir are entered as owners of certain shares in the Khasra numbers in dispute. It is also mentioned that by mutation No, 1988 attested on 17th July, 1942 the inheritance of Pazir had devolved on his legal heirs. In the subsequent jamabandi of 1947-48 the names of the legal heirs of Pazir are eliminated and children of Zamin are shown as owners in possession of the entire land. This entry is repeated in the subsequent jamabandis of 1951-52, 1955-56, 1959-60, 1963-64 and 1967-68. In the jamabandi of 1971-72, Saadullah defendant is also shown as owner in possession of some area of the suit land alongwith the children of Zamin. In view of these entries in the revenue record, the finding of the Courts below that the parties were in possession of the suit land as co-sharers is based on misreading of the evidence. It is clear that since after the sale transaction effected by the registered deed, dated 11th May, 1942 in favour of Qamar Din the names of all the legal heirs of Pazir stood eliminated from the revenue record and the land had been continuously possessed by the children of Zamin on the basis of the pre-emption degree obtained by their father against Qamar Din in Suit No, 99/1, decided on 1st June, 1943.
(1) PLD 1975.5 C 311 ' Therefore, the question for decision would be whether the defendants had completed their title by the adverse possession of the land and had become the absolute owners thereof. There is no evidence of the age of the minors at the time of sale of their share by registered deed, dated 11th May, 1942. However, Lajber (plaintiff) admitted in his statement that he was 3 or 31 years old at the time of the death of his father. He said nothing about the age of his sisters who are also plaintiffs in the case. Nor did he say if they were elder or younger to him in age. In the absence of any convincing evidence even if the minors are presumed to have been born on 11th May, 1942 when their share was sold, they were to attain majority on 10th May, 1960 and required to file the suit for possession of their share within 3 years of attaining majority as provided under section 6 read with section 8 of the Limitation Act, 1908. The contention of the learned counsel for the respondents that the period of 12 years provided for the suit was to commence from the date of their attaining majority is apparently based on a bare reading of section 6 of the Limitation Act. However, section 8 which is in the nature of a proviso to section 6 requires that the plaintiff cannot have more than 3 years after attaining majority for filing a suit for possession in cases where the period of limitation had already expired during his minority.
5. In support of the argument that there can be no adverse possession of the property which belongs to a minor during the continuance of the minority reliance is placed on AIR 1935 Mad.
1059, wherein it was held that the possession of a purchaser could not be deemed to be adverse to the true owners unless it was shown that a hostile title was asserted by the purchaser to their knowledge and in view of the fact that the defendants were minors of tender age, they were not expected to know that their shares were being held under a title hostile to them. But in AIR 1953 Mysore 84, a different view was taken. It was observed that the combined effect of sections 6 and 8 would be to enable a person like the plaintiff, who has been dispossessed during his minority, to file a suit within 3 years of his attaining majority or within the usual period of time ordinarily allowable to a major whichever is longer. It cannot be said as a general proposition that there can be no adverse possession of property which belongs to a minor during the continuance of the minority.
Where a person gets into possession of a minor's property not with a view to protect the minor and manage his property or as a guardian, but on bis own account, without recognizing the rights of the minor, his possession of the property is adverse to the minor even during the miniority. In the case in hand it is clear that the defendants had entered into possession of the land either on the basis of the registered sale-deed, dated 11th May, 1942 or on the basis of the pre-emption decree passed on 1st June, 1943 in assertion of a title which was clearly hostile to the interest of the minors.
In the circumstances, although the sale by the de facto guardian of the minors was void but there was a preemption decree against them in Suit No, 99/1, decided on 1st June, 194 in which they were impleaded as vendors, the plaintiffs were required by law B to have instituted the suit for possession of their share within 3 yea of attaining majority and the suit having been instituted on 19th March, 1972 was barred by time and their title in the suit property stood extinguished under section 28 of the Limitation Act. In Ahmad Khan v. Rasool Shah (1) it was observed that :- "It is well-established principle that a vendee who remains in possession after the sale of property which goes off or is otherwise defective in law holds adversely to the vendor."
(4) PLD 1975 SC 311 ' Similarly in the case of Mir Laik Ali v. The Standard Vacuum Oil Company (1) it was observed :- "When there is an invalid tranfer in favour of a person and he holds possession of the property transferred as transferee, his possession is in his own right and adverse to the transferor. If he continues in possession of immovable property for more than twelve years he will acquire an indefeasible title. Of course it is open to a transferee if he finds the transaction in his favour to be invalid not to treat the property as his own, but that will be where he accepts the invalidity of the transfer and henceforth proposes to hold the property on behalf of the transferor. If it be his claim that he holds it by virtue of a transfer which he regards as valid he is obviously holding in his own right and not on behalf of the transferor or in trust for him."
' In Nannekhan v. Ganpati (2) it was held that :- "Section 6, Limitation Act relates to the period of limitation for filing suits with respect to persons suffering under a legal disability. It lays down that where a person entitled to institute a suit is a minor at the time from which the period of limitation is to be reckoned, he may institute the suit within the same period after disability has ceased as would otherwise have been allowed from the time prescribed therefor. It has to be borne in mind that the provisions of this section are governed and controlled by section 8, Limitation Act which lays down that nothing in section 6 shall be deemed to extend for more than 3 years from the cessation of the disability the period within which any suit must be instituted."
6. In this view of the matter, the Courts below have not only acted with illegality in the exercise of their jurisdiction but also misread the evidence available in the case.
7. For the aforesaid reasons the revision is allowed and by setting aside the impugned decree the suit of the plaintiffs/respondents is dismissed The parties are, however, left to bear their own costs.
(1) PLD 1964 SC 220 (2) AIR 1954 Hyd. 45