This R.SA. Arises out of a suit for declaration with consequential relief filed by Mst. Jamila respondent on 12-4-1983 to challenge the sale through mutation No. 294 sanctioned on 16-2-1962 allegedly made by the respondent --plaintiff. The suit was resisted by the present petitioner who is the step-brother of Mst. Jamila respondent. He claimed to be in possession of the disputed land as an owner on the basis of the mutation No. 294 sanctioned on 16-2-1962.
2. Originally the relief of possession was not claimed in the plaint but subsequently the plaint was amended by the order of the Court dated 4-1-1987 and the amended plaint was filed on 8-2-1987.
3. On the pleadings of the parties the trial Court framed the following issues:-- (1)Whether the suit is not maintainable in its present form? O.P.D.
(2)Whether the plaintiff has no locus standi to file this suit? O.P.D.
(3)Whether the plaintiff has no cause of action to bring this suit by her own act and conduct? O.P.D.
(4)Whether the plaintiff is estopped by her own act and conduct? O.P.D.
(5)Whether the suit is barred by limitation? O.P.D.
(6)Whether the suit has not been properly valued for the purposes of court-- fee and jurisdiction?
O.P.D.
(7)Whether the defendant is entitled for special costs under section 35-A, C.P.C.? O.P.D.
(8)Whether the plaintiff sold the property to the defendant and recovered Rs.10,000? O.P.P.
(9)If issue No. 8 is not proved, whether the mutation in question is liable to be set aside for the reason mentioned in the plaint? O.P.P.
(10) Relief.
The parties produced their oral as well as documentary evidence before the trial Court. The trial Court held that the respondent was a minor aged about 15 years at the time of attestation of the mutation. Hence the alleged sale through mutation was void and conferred no right of title on the petitioner. The Court also held that the mutation being void the suit was not barred by limitation.
The Court recorded findings on issues Nos. 1 to 6, 8 and 9 in favour of the plaintiff/respondent and decreed the suit vide judgment and decree dated 25-2--1987. The same was upheld in appeal by the learned Additional District Judge, Khanewal vide judgment and decree dated 3-5-1987. Hence this R.S.A. The learned counsel appearing for the petitioner has assailed the findings of the Courts below on issues Nos. 5, 8 and 9. He also submitted that no issue about minority was struck by the trial Court which prejudiced the petitioner. He argued that the respondent was bound to bring the suit within the period of limitation even if the impugned mutation was held to be void. In this connection he placed reliance on S. Sharif Ahmad Hashmi v. Chairman Screening Committee, etc. 1980--SCMR 711. He further submitted that the respondent was major and had even executed power of attorney Exh. D.1. On 14-2-1961 in favour of Ch. Muhammad Hanif, alongwith 5 other persons. He submitted that the document Exh. D.1 was not considered by the Courts below. Lastly he submitted that after attaining majority the suit ought to have been filed within the period of three years. In this connection he relied upon Allah Ditta and another v. Muhammad Azeem PLD 1953 B J 1, Kesem Molla v. Fajel Slick PLD 1952 Dacca 347 and Mst. Hanifa Begum v. Muhammad Afzal Khan and 46 others 1981 CLC 1156. On the other hand the learned counsel for the respondent argued that in this case limitation will run from the date of knowledge. Because the respondent was fraudulently kept in dark about the alleged sale of mutation. He added that the respondent had been receiving share of Batai till 1982. According to the learned counsel no question was put to the P.Ws. About the date of knowledge of the mutation or the r1aud. Hence the suit was within limitation. As regards Exh. D.1 the learned counsel explained that the said document was not proved. At any rate the respondent/plaintiff was not mentioned as major in the said document.
Moreover, the mutation transaction was not done on the basis of the power of attorney Exh. D.1.
4. As regards the question of limitation the factual position is that Mst. Jamila respondent/plaintiff was minor and was living with her step-brother prior to her marriage. Her marriage took place in the year 1970 and she continued to receive her share of the Batai as stated by her in her statement as P.W.
4. P.W. 1, Muhammad A.I and P.W. 2 Shah Muhammad, brother-in-law of Mst. Jamila, respondent and cousins of Ghulam Siddiq, as well as Ghulam Siddiq appellant had also stated that Ghulam Siddiq appellant used to cultivate the land and give share of produce to Jamila respondent till 1982-83. P.W. 3 Wali Muhammad husband of Mst. Jamila had also stated that the share of produce was given to Mst. Jamila till 1982-83, when Ghulam Siddiq appeared as D.W. 5 and admitted that Muhammad Hanif had been receiving respondent's share of Batai from him. On being questioned as to when the share of Batai was given last time, he expressed ignorance about the time. In this state of evidence the delivery of the share of produce to the plaintiff/respondent by the present appellant is admitted. He has deliberately refrained to give the period of the last Batai and has thus not said anything to contradict the averments of the P.Ws. That the Batai was delivered up to the year 1982. It can thus be safely concluded that the respondent/plaintiff had been receiving her share of Batai till 1982 and that she came to know about mutation No. 294 somewhere in the said year. It is also significant to mention that no question was put to' the P.Ws.
About the date of knowledge of the mutation, hence the suit was within limitation. There is no cavil with the proposition that even a void order/transaction has to be challenged within the period of limitation but in such a case the limitation runs from the date of knowledge and not the date of the order or the transaction. It is also true that after attaining majority a minor has to file the suit within a period of three years but the said period also runs from the date of knowledge. In this view of the matter the suit was not barred by time. As regards findings on issues Nos. 8 and 9, I do not find any misreading or non-reading of the evidence which may attract interference by this Court.
Admittedly the power of attorney Exh. D.1 was executed by a number of persons including the respondent. The said document was executed on 13-2-1961 when Mst. Jamila was hardly of 14 years as is evident from the statements of P.Ws. 1 and 2 that Mst. Jamila was only of 2/3 months old at the time of partition. They were not specifically cross-examined on this part of their statement. P.W. 3 Wall Muhammad had stated that in the year 1962 Mst. Jamila was only of 15 years. He was also not cross-examined on this part of the statement. Hence even if examination of document Exh. D. 1 is admitted this does not ipso facto prove that the respondent/plaintiff was major. The Courts below had rightly arrived at the conclusion that the petitioner, the step-brother of Mst. Jamila, had fraudulently go the mutation sanctioned in his name and kept her in dark about the same. The said mutation was, therefore, illegal and inoperative on the rights of the respondent.
5. For the foregoing reasons there is no merit in this R.SA. Which is dismissed leaving the parties to bear their own costs.
H.B.T./G-267/L