This civil revision under section 115, C.P.C. Has been filed by the petitioner to call in question the judgment and decree dated 3-4-1990 passed by the Appellate Court/learned Additional District Judge, Pakpattan Sharif, District Sahiwal, whereby, the judgment and decree dated 6-12-1987 passed by the learned Civil Judge, 1st Class, Pakpattan Sharif, decreeing the suit of the plaintiff/petitioner, was reversed.
2. Briefly stated the facts of this case are that Saleem Akhtar, plaintiff/petitioner had instituted a suit for declaration with consequential relief of possession in respect of agricultural land situated in Khewat No,68, Khattoni Nos.345, 346-min to 353, measuring 21 Kanals, 7 Marlas, alleging there in the plaint that he being minor in the year 1968, his brother Ronak Ali was managing his land, who, vide Mutation of Sale No,106 dated 16-4-1968, had transferred his land in favour of the defendant/respondent in his absence and without his knowledge. He further averred in the plaint that at the time of attestation of mutation in dispute, he neither appeared before Revenue Officer nor he received any consideration for the sale of land and that the mutation of Sale No,106 is illegal, against facts, ineffective on his rights and is liable to be set aside. The suit was contested by the defendant/respondent, who filed his written statement, denying the averments of the plaint, raising some preliminary objections including the suit barred by time. From the factual controversies appearing on the pleadings of the parties, the trial Court framed the following issues:--
(1) Whether the suit is not maintainable in its present form? OPD.
(2) Whether the suit is time-barred? OPD
(3) Whether the plaintiff has no locus standi to file the suit? OPD
(4) Whether the plaintiff has no cause of action to file the suit? OPD
(5) Whether the plaintiff is estopped by his words and conduct to file the suit? OPD
(6) Whether the suit is incorrectly valued for the purpose of court-fee and jurisdiction? If so, what is the correct valuation? OPD
(7) Whether the suit is based on mala fide and as such the defendant is entitled to special costs under section 35/A of C.P.C.? OPD
(8) Whether the plaintiff is exclusive owner of the suit land? OPP
(9) Whether the Mutation No,106 dated 16-4-1968 is illegal, against facts and being void is ineffective against the rights of the plaintiff? OPP
(10) Relief. After recording and appreciating the evidence of the parties, pro and contra, the trial Court decreed the suit in favour of the plaintiff/petitioner. Feeling aggrieved, the defendant/respondent (herein) preferred an appeal and the Appellate Court/learned Additional District Judge, Pakpattan Sharif, vide its impugned judgment and decree accepted the appeal, set aside the findings of the trial Court and dismissed the suit of the plaintiff/petitioner.
3. Learned counsel for the petitioner contended that the suit was filed within time as the Article 120 of the Limitation Act has provided limitation for filing a suit for declaration six years and the time would start running in such suits from the date of right to sue. He further contended that the Appellate Court has misread the evidence produced by the parties and this principle, that in case of sale is based on fraud, the onus to prove is shifted to the beneficiaries and in the present case is was obligatory on the respondent to prove the validity of mutation of sale. Learned counsel lastly contended that the judgment and decree of the Appellate Court is based on surmises and conjectures.
4. On the other hand, learned counsel for the respondent vehemently opposed the arguments of the learned counsel for the petitioner and supported the judgment and decree of the Appellate Court, contending that the suit was barred by time and it was not filed within 12 years from the date of dispossession of the petitioners. The Court after appreciating the whole evidence produced by the parties gave finding on questions of fact against the petitioner. He further argued that there is no illegality in the impugned judgment and decree passed by the Appellate Court.
5. I have heard the learned counsel for the parties at length and perused the record.
6. Article 120 of the Limitation Act has provided limitation for filing a suit for declaration six years only from the date of right to sue. The right to sue would accrue to the plaintiff when his right was denied by the defendant/respondent. The right of the plaintiff is a continuous right. There can be no right to sue until there is an accrual of right asserted in the suit and its infringement or its clear unequivocal threat to infringe that right by the defendant against whom the suit is instituted. "In paragraph No,8 of the plaint, it is stated that the plaintiff/petitioner has been asking through the respectable of the area to the respondent to get cancel the mutation in dispute, but the respondent had refused after beating about the bush fifteen days prior to the institution of the suit.
Therefore, the right to sue accrued to the petitioner when the respondent had refused to cancel the mutation of sale. The plaintiff/petitioner had prayed for declaring the mutation in dispute as illegal.
The entries of the mutation have been entered in the record of right. The entries in the record of rights afforded fresh cause of action to the plaintiff and adverse entries in the record of rights even if allowed to remain unchallenged does not necessarily extinguish the rights of the party against whom such entry had been made. Every entry in the record of rights is denial of right of plaintiff and the plaintiff has the option to file suit for declaration on every denial of his rights. Every denial of right would furnish the plaintiff a fresh cause of action. Reliance can be placed in this respect to the cases of Wali and 10 others v. Akbar and 5 others 1995 SCMR 284; Atta Muhammad v. Nasiruddin PLD 1993 Pesh. 127 and Muhammad Yousaf v. Noor Din and others 1993 MLD 763. The learned Appellate Court has not adverted to this legal aspect of this case and overlooked from its judicious consideration.
7. In view of the above discussion, I have no hesitation in observing that the suit of the plaintiff/petitioner has been filed within -period of limitation.
8. The case of the plaintiff/petitioner is that at the time of attestation of mutation of sale in dispute he was minor and he neither appeared before the Revenue Officer nor he had received any consideration for sale. In support of his version, the petitioner has produced Muhammad Bashir, P.W.1, and Sultan Ahmad P.W.2, who have stated that at the time of sale of the property in the year 1968, the. Petitioner was minor. The petitioner himself appeared as P.W.3 and supported his own case. He also produced a copy of school certificate wherein the date of birth of the petitioner is entered as 15-5-1954. The petitioner was admitted in school on 1-5-1968 after the sanctioning the mutation of sale. He was minor at that time and it was not known that whether a suit would be filed by the petitioner challenging the mutation of sale attested on his behalf.
9. The petitioner has claimed that sale of his property has been made fraudulently by his brother in favour of the respondent and after the transfer of land in favour of the respondent he is the beneficiary of the land and in such-like cases, the onus to prove the validity of sale is on the person in whose favour the sale has been effected. In this respect, reference can be made to the cases of Ghulam Haider v. Mst. Sooban Bibi 1986 MLD 1952 and Ghulam Hussain and others v. Inam Bakhsh and others 1995 MLD 1165.
10. The respondent has not been able to prove its own obligation. D.W.1 and D.W.2, namely, Khan Muhammad and Taj Muhammad have stated that at the time of sale, the petitioner was of 18/19 years of age and to prove this age of the petitioner, the respondent has not produced any documentary evidence to controvert the school certificate produced by the petitioner. It is also a settled principle of law that the oral evidence cannot exclude the documentary evidence. A document is rebutted by the document only. Reference can be made, in this behalf, to the case of Arif Baig v. Mubarrak Ali PLD 1992 Lahore 366.
11. It is an oral sale and to prove a sale the respondent should have Produced the witnesses in whose presence the bargain of the sale was struck and the consideration paid to the petitioner.
The sale has been defined in section 54 of the Transfer of Property Act, 1882:-- "Sale" is transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. The essential elements of the sale are--
(1) the parties;
(2) the subject-matter;
(3) the transfer of conveyance;
(4) the price or consideration.
' The parties of the sale are the seller and the buyer. The seller must be a person competent to transfer and he must be competent to contract and he must have title to the property or authority to transfer it if it is not his own."
12. The petitioner was minor at the time of sale, therefore, he was not competent to transfer his property and in this way this element of a valid sale is missing. The sale is transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. To prove this ingredient of sale, the respondent has produced two witnesses, namely, Khan Muhammad D.W.1 and Taj Muhammad D.W.2. None of them was present at the time of attestation of the mutation. D.W.2 has not been able to point out the detail of the currency notes when the amount was paid to the vendors. It means that the, consideration was not also paid in their presence. If the consideration of sale has not been proved on the record, then, there can be no sale in the eyes of law. The respondent has not been able to establish on record the essential elements of that valid sale and if any of the ingredients of sale is missing, then, there would not be a valid sale in the eyes of law. This legal aspect of the case has not also been taken into consideration by the First Appellate Court which is an ille6lity.
13. Each and every finding of fact by Court of appeal would not be wholly sacrosanct, where record was missed or grossly inference were raised from it or scant evidence was on record to support a finding, the Court in revision could competently review the findings of fact recorded by the First Appellate Court. Reliance in this context can be placed on the case of Wazir Muhammad v.
Muhammad Hussain 1993 CLC 1585.
14. In view of the above discussion and in agreement with the principles laid down in the cases referred to above, this revision petition is accepted and the impugned judgment and decree dated 3-4-1990 passed by the learned Appellate Court is set aside and that of the trial Court, decreeing the suit of the plaintiff/petitioner, is maintained. There shall be no order as to costs.