' Muhammad Hanif respondent No,1 brought a Suit bearing No,147 of 1988 for declaration and permanent injunction in respect of land measuring 72 Kanal in Chak No,52/HR, Tehsil Haroonabad, District Bahawalnagar. As per the plaint, it was contended that Mst. Ghulam Fatima, respondent No,4 was the original owner of the said land. Mst. Ghulam Fatima got the suit land exchanged with her mother Mst. Rabia Begum respondent No,3 vide Mutation No,62, dated 30-5-1967. It was further contended that through mutation No,63, dated 12-6-1967 Mst. Rabia Begum sold the land in question in favour of respondent No,1/plaintiff. After this sale, a suit was instituted collusively by the respondent No,4 against respondent No,3 wherein it was claimed that the respondent No,4 was a minor at the time of the exchange witnessed by Mutation No,62, dated 30-5-1967 and therefore, the Mutation of Exchange No,62, dated 30-5-1967 was without lawful authority. Vide judgment and decree, dated 27-6-1973 the said mutation was directed to be cancelled. Mutation of Sale No,63 was also cancelled by Collector Haroonabad as it offended against Martial Law Regulation No,64.
2. Subsequently Mutation No,197, dated 19-3-1979 was attested by virtue of which the land in question reverted back to Mst. Ghulam Fatima, respondent No,4 as owner. On the basis of the said mutation, Mst. Ghulam Fatima transferred the land in dispute through sale in favour of the petitioner, Abdul Samad, Abdul Ahad, Abdul Wahid, Muhammad Ashraf and Abdul Ghani vide separate registered sale-deeds, dated 28-6-1979 and 12-3-1980 respectively. Based upon these sale-deeds Mutations Nos.202, 203, 204, 205 and 209 were got attested in favour of the petitioner.
These sale-deeds and mutations in favour of the petitioners were challenged on the ground that the judgment and decree, dated 27-6-1973 was collusive and the cancellation of mutation of exchange Nos.62 and 63 was also illegal. Against the cancellation of Mutation No,63, the matter was agitated by the respondent No,1 which was finally decided vide order of the Member Board of Revenue, dated 11-3-1980. By virtue of the said order the Mutation No,63 was restored. According to the respondent No,1, the petitioners have no right or interest in the property.
3. The suit of Muhammad Hanif was contested by Mst. Ghulam Fatima and defendants Nos.4 to 8 (petitioners herein) separately. Mst Ghulam Fatima, respondent No,4 contended that as she was a minor, she was not competent to get her land exchanged with her mother and it was for this reason that the mutation of exchange was set aside jay the Civil Court. According to her the sake in favour of respondent No,1 by Mst. Rabia Begum her mother was without lawful authority and void.
She also denied having executed any registered sale-deed in favour of defendants Nos.4 to 8 (the petitioners herein). On the other hand the petitioners contested the suit on the ground that the suit was time-barred; that the suit filed on 26-7-1980 was hit by section 12(2), C.P.C. That the suit was barred under Order 23, C.P.C. As well as under section 11, C.P.C. And that the suit was not valued properly for the purposes of court-fee and jurisdiction. On merits it was averred that the decree, dated 27-6-1973 was correctly passed and that the cancellation of Mutation No,62 and Mutation No,63 was lawful. They claimed ownership on the basis of the registered sale-deeds executed in their favour by Mst. Ghulam Fatima.
4. The petitioners themselves brought Civil Suit No,146 of 1988 for a declaration that they were owners in possession of the land in question on the basis of the registered sale-deeds, dated 28-6- 1979 and 12-3-1980 and Mutations Nos.202, 203, 204, 205 and 209. It was also contended that the order of Member Board of Revenue, dated 11-3-1980 was illegal.
5. This suit of the petitioners was contested by Muhammad Hanif, respondent No,1 and Mst. Ghulam Fatima and Mst. Rabia Begum separately. While respondent No,1 contested the suit on the same contentions which were raised by him in his Suit No,147 of 1988, the respondents Nos.3 and 4 initially admitted the suit of the petitioners through their consenting written statement. However, subsequently respondent No,4 Mst. Ghulam Fatima was allowed to file a separate written statement in which she denied the execution of the registered sale-deed in favour of the petitioners. She also contended that the land in question has been under the control of the Guardian Judge and that the sale-deeds without the permission of the Guardian Judge were illegal. She also contended that even at the time of execution of the sale-deeds in favour of the petitioners she continued to be a minor. Her contention was as her Guardian was appointed during her minority, she would have attained majority only at the age of 21 years.
6. Both these suits were consolidated and from the pleadings of the parties, the following issues were framed:-- ' ISSUES
(1) Whether the present plaintiff is owner of the disputed property and as such,he is entitled to recover its possession from the defendants on the grounds as contained in the body of the plaint?
OPP.
(2) Whether the judgment and decree, dated 27-4-1973 passed by the learned Senior Civil Judge Bahawalnagar, impugned Mutation No,197, dated 19-3-1979 and the registered sale-deeds, dated 28-5-1979 in favour of defendants Nos.4 to 8 and registered sale-deed, dated 11-3-1980 on behalf of defendant No,3 in favour of defendant No,8 and impugned Mutations Nos. 202 to 205, dated 15- 11-1979 are illegal, collusive, ex parte, void, without any lawful authority and inoperative against the rights of present plaintiff on the grounds as contained in the body of the plaint? OPP
(3) Whether the present suit is barred by time? OPD 2, 4 to 8.
(4) Whether the present plaintiff has no cause of action and locus standi to bright the suit? OPD 4 to 8
(5) Whether this suit is not competent in its present form? OPD, 2, 4 to 8.
(6) Whether the suit cannot proceed in view of the preliminary Objections Nos.5 and 6 of the written statement on behalf of the contesting defendants Nos. 4 to 8? OPD 4 to 8 (6-A) Whether suit cannot proceed under Order 23, rule 2, C.P.C.? OPD 4 to 8.
(6-B) Whether the suit filed by plaintiff is hit by principle of res judicata under section 11, C.P.C.? OPD.
(6-C) Whether the suit is liable to be dismissed under section 12(2), C.P.C.? OPD
(7) Whether the suit has been undervalued for the purpose of court-fee and jurisdiction? If so what is its correct valuation? OPD 2, 4 to 8.
(8) Whether this Court has no jurisdiction to try the cross suit titled as Abdul Samad and others v.
Muhammad Hanif and others? OPD 3
(9) Whether the cross suit titled as Abdul Samad and others v. Muhammad Hanif and others is bad for non-joinder of necessary parties? If so, who are they and to what effect? OPD-3 and OPP
(10) Whether the cross suit titled as Abdul Samad and others v. Muhammad Hanif and others has been undervalued for the purposes of court-fee and jurisdiction? If so, what is the correct valuation? OPD-3 and OPP
(11) Whether the plaintiffs in the cross suit titled Abdul Samad and others v. M. Hanif and others owners in possession of the suit land by virtue of registered sale-deeds, dated 28-6-1979 and sale- deed, dated 13-3-1987 and consequent Mutations Nos.202 to 205, dated 15-11-1979? OPD 4 to 8
(12) Whether the order, dated 11-3-1980 passed by Member Board of Revenue, is illegal, void collusive and inoperative against the present defendants Nos.4 to 8 on the grounds as contained in the body of the point of the cross suit? OPD 4 to 8.
(13) Whether the present defendants Nos.4 to 8 are entitled to the decree for a declaration and permanent injunction as prayed for? OPD 4 to 8.
(14) Whether the present defendants Nos.4 to 8 have no cause of action and locus standi to bring the cross suit? OPP
(15) Whether this Court has no territorial jurisdiction to try the cross suit titled as Abdul Samad and others v. Muhammad Hanif etc.? OPP
(16) Whether the present defendants Nos.4 to 8 are estopped to bring the cross suit by their words and conduct? OPP
(17) Whether the present plaintiff is entitled to recover the special costs under section 35-A of C.P.C., in the cross suit? OPP
(18) Whether the contesting defendants Nos.4 to 8 are entitled to recover special costs under section 35-A of C.P.C., in the present suit? OPD 4 to 8.
(19) Whether the impugned registered sale-deeds in respect of the suit land, dated 28-6-1979 in favour of defendants Nos.4 to 8 are illegal, void, collusive, without consideration based on fraud, without any lawful authority and inoperative against the rights of the present defendant No,3 on the grounds as contained in the bodies of the cross suits? OPD-3
(20) Whether the present defendant No,3 is entitled to recovery the possession of the entire suit property from the present defendants Nos.4 to 8 on the grounds as contained in the body of the cross suits? OPD-3
(21) Whether the present defendant No,3 has no cause of action and locus standi to bring the cross-suits? OPD-3.
(22) Whether the present defendant No,3 is estopped by her words and conduct to bring the cross suits? OPD-4 to 8.
(23) Whether the cross suits titled as Ghulam Fatima v. Abdul Ghani, Ghulam Fatima v. Abdul Samad, Ghulam Fatima. v. Abdul Wahid, Ghulam Fatima v. Abdul Ahid and Ghulam Fatima v. Ashraf Ali have been undervalued for the purposes of court-fee and jurisdiction, if so, what is the correct valuation? OPD-4 to 8.
(24) Whether all the suits filed by the present defendant No,3 are hit by principles of res judicata under section 11, C.P.C.? OPD 4 to 8.
(25) Whether the present defendants Nos.4 to 8 are entitled to recover the special costs under section 35-A, C.P.C.? If so, to what amount? OPD 4 to 8.
(26) Whether the present defendant No,2 has waived her right to challenge the impugned registered sale-deed, if so, to what effect? OPD 4 to 8.
(27) Whether the impugned Mutation No,197 is illegal void, collusive, based on fraud and inoperative against the rights of the present plaintiff? OPP (28)Relief.
7. After recording oral as well as documentary evidence, vide judgment and decree, dated 11-2- 1989 the suit of respondent No,1 was dismissed while the suit filed by the petitioners were decreed in their favour by the learned trial Court.
8. Feeling aggrieved of the said judgment and decree, the respondent No,1 filed an appeal on 6-3- 1989.
9. Vide judgment and decree, dated 20-4-1989 the learned District Judge, Bahawalnagar accepted the appeal and decreed the suit in favour of respondent No,1 primarily on the ground that as Mst.
Rabia Begum had alienated the land in question in favour of respondent No,1 who was a bona fide purchaser for value without notice, the respondent No,1 had become the owner of the suit land and that Mst. Ghulam Fatima had no right left in the property to further transfer the same in favour of the petitioners.
10. The learned counsel for the petitioners raised the following grounds:---
(a) that the Mutation No,62, dated 30-6-1967 and MI ,action No,63, dated 12-6-1967 conk not transfer any title in the land in question which being of more than Rs,100 in value could not have been transferred without registered instrument.
(b) that admittedly Mst. Ghulam Fatima was a minor at the time of Mutation of Exchange No,62, dated 30-5-1967. Any alienation by a minor without the permission of the Guardian Judge was void.
(c) that Mst. Rabia Begum was not clothed with any transferable right and thus, the Mutation of Sale No,63, dated 12-6-1967 was illegal and void.
(d) that the decree of the Civil Court, dated 27-6-1973 and the subsequent Mutation No,197, dated 19-3-1979 in favour of Mst. Ghulam Fatima were lawful and that the registered sale-deeds, dated 28-6-1979 and 12-3-1980 in favour of the petitioners were legal and effective.
(e) that the two Suits Nos.146 of 1988 and 147 of 1988 hid been consolidated by the trial Court.
Muhammad Hanif, respondent No,1 had filed only one appeal and had not challenged the decree passed against him in the Suit filed by the petition bearing No,146 of 1988. The said decree shall be final against respondent No,1.
(f) that the learned trial Court had framed as many as 28 issues. It was legally incumbent upon the Appellate Court to record its findings on all the issues.
(g) that the Appellate Court had erred in holding that respondent No,1 was a bona fide purchaser for valuable consideration without notice, particularly when there was nothing on the record to support this finding.
11. On the other hand, the learned counsel for respondent No,I submitted that after the exchange evidenced by Mutation No,62, dated 30-5-1967, Mst. Rabia Begum was shown as the ostensible owner of the land in question. The respondent No,1 had purchased the said land from Mst. Rabia Begum for valuable consideration without notice of any defect in her title and was thus, a bona fide purchaser and protected under section 41 of the Transfer of Property Act 1882. He further submitted that the decree, dated 27-6-1973 obtained by Mst. Ghulam Fatima was a collusive decree to deprive the respondent No,1 of his legal right. He further urged that the order of the Member Board of Revenue, dated 11-3-1980 was a correct and valid order which rightly restored the mutation of sale in favour of respondent No,l.
12. Arguments have been heard and record perused.
13. From the perusal of the pleadings of the parties, the controversy disclosed is contentious and is between the petitioners, Muhammad Hanif, respondent No,1 and respondents Nos.3 and 4. While respondent No,1 claimed ownership on the basis of the Mutation of Exchange No,62 made by respondent No,4 in favour of respondent No,3 and Mutation of Sale No,63 made by respondent No,3 in his favour the petitioners have based their right upon the registered sale-deed executed in their favour by Mst. Ghulam Fatima. Quite to the contrary Mst. Ghulam Fatima has denied the legality of sale of the suit land, either in favour of respondent No,1 or in favour of petitioners. According to respondent No,4 the sale in favour of respondent No,1 is ineffective as Mst. Rabia Begum, her mother had no transferable title in the land. She denies the sale-deeds in favour of the petitioners on the allegation that she was a Paradansheen lady and had not executed the sale-deeds in their favour. She also sought to have the sale-deeds declared ineffective on her right on account of her minority at the time of execution of the said sale-deeds.
14. Contention as the controversy may be, the framing of as many as 28 issues by the trial Court appears to show over zealousness in order to recover the entire gamut of the dispute. This has occasioned repetition of the same material proposition of law and fact. Such extravagance in framing of issues only makes the trial More tedious and cumbersome. It is the duty of the trial Court to ascertain upon what material propositions of fact or of law the parties are at variance, and should frame such issues on which the right decision of the case shall depend. It is nonetheless observed that this has not prejudiced the case of any party.
15. Respondent No,1 examined P.W.1, Muhammad Bilal son of Khuda Bux, P.W.2 Muhammad Amin son of Abdul Sattar, P.W.3 Karam Din and himself appeared as P.W.4. He also produced copy of the order, dated 11-3-1980 passed by Member Board of Revenue as Exh.P.1, copy of Mutation No,62 Exhs.P.2 and Exh.P.3, and Mutations in favour of the petitioners Nos.202 etc. In favour of the petitioners, Exhs.P.4 to P.7 and Mutation No,I97 in favour of Mst Ghulam Fatima as Exh.P.8. On the other hand Mst. Ghulam Fatima appeared as D.W.1 and produced copies of registered sale-deeds in favour of the petitioners as Exh.D-1 to Exh.D-5, copy of the order, dated 16-12-1979 passed by the High Court as Exh.D-6, copy of Mutation of inheritance Exh.D-7 copy of Mutation No,55 Exh.D.8, copy of Mutation No,197 Exh.D-9 copy of the judgment of the Civil Court, dated 27-6-1973 Exh.D-10 and Exh.D.11, copy of the order of the Guardian Judge, dated 16-2-1971 Exh.D.12, copy of the order, dated 12-2-1980 Exh.D.13, copy of the order, dated 17-10-1987 Exh.D.14, copy of Nikah Nama. Exh.D-15 and copy of School Certificate Exh.D.16.
16. The petitioners examined Ejaz Ahmed as D.W.2 while petitioners Abdul Samad, Muhammad Ashraf and Abdul Gani recorded their statements as D.W.3 to D.W.S. They also brought on record the original sale-deeds, Exh.D.17 to Exh.D.21, copy of Mutation No,202 as Exh.D-22 Mutations Nos.203, 204, 205, 209 and 597 as 'Exhs.D.23 to D.27 copy of plaint Exh.D.28, copy of order, dated 5-5-1988 Exh.D.29, copy of the Jamabandi Exh.D-30, Khasra Girdawari Exh.D.32, copy of the order, dated 11-3- 1980 of Member Exh.D-32, Mutation No,62 as Exh.D.33, copy of the order, dated 16-12-1989 upon stay application Exh.D.34, copy of the judgment and decree, dated 27-6-1973 Exh.D.35 and Exh.D-36, Mutation No,161 as Exh.D.37, copy of Vakalat Namas Exh.D-38 and Exh.D.39, copy of consenting written statement Exh.D.40, copy of Vakalatnama Exh.D.41 and Exh.D. 42 and copy of written statement as Exh.D.43.
17. The learned trial Court discussed Issues Nos.1, 2, 4, 11, to 14, 19 and 27 jointly. These issues rightly reflected the controversy between the parties, only that they were too repetitive and burdensome.
Nevertheless the learned trial Court found that the mutation of exchange between Mst. Ghulam Fatima and Mst. Rabia Begum was void on account of the admitted minority of Mst. Ghulam Fatima at the time of exchange. It was also held that the subsequent mutation of sale in favour of Muhammad Hanif, respondent by Mst. Rabia Begum was also ineffective and void. The sale-deeds Ddi.D.1 to Exh.D.5 in favour of the petitioners were held to be valid and legal. The objection that as Mst. Rabia Begum had been appointed as Guardian of the person and property of Mst. Ghulam Fatima, the latter was still a minor having not attained the age of 21 years was overruled. The efficacy of the order, dated 11-3-1980 of the Member Board of Revenue was also denied.
18. The trial Court further found that the suit of respondent No,1 was barred under Order 23, rule 1 and also under section 11, C.P.C. As Muhammad Hanif respondent had previously filed a suit upon the same subject-matter which was dismissed as withdrawn on 10-5-1980. It was also held that his suit was barred by time and was also barred under section 12(2), C.P.C. The learned trial Court was also impressed by the fact that Mst. Ghulam Fatima who had challenged the five sale-deeds in favour of the petitioners had withdrawn the same. The trial Court drew the conclusion that by this act Mst. Ghulam Fatima had admitted the sale-deeds. It was thus that the trial Court had dismissed the suit of respondent No,1 and decreed the suit filed by the petitioners.
19. Quite contrary to the laborious effort put in by the trial Court in coming to a well-considered judgment, the Appellate Court while dealing with the appeal of respondent No,1 approached the matter in a rather causal fashion. The appeal was accepted and the judgment and decree of the trial Court was set aside upon the sole assumption that respondent No,1 was a bona fide purchaser for valuable consideration from Mst. Rabia Begum who was shown as the ostensible owner of the land in question. The learned Appellate Court did not advert to the real controversy between the parties and decided the appeal in a less than workman-like fashion.
20. That a perusal of the entire evidence on the record leads to the inescapable conclusion that Mst. Ghulam Fatima was a minor at the time of the Mutation of Exchange No,62 attested on 30-5- 1967. As such the right of ownership of Mst. Ghulam Fatima could not have been conveyed to Mst.Rabia Begum who later sold the land in suit in favour of respondent No,1 vide Mutation No,63, dated 12-6-1967. The respondent No,1 would thus, not be vested with any rights through the said mutation of sale. Section 54 of the Transfer of Property Act applies with full force to the area forming part erstwhile State of Bahawalpur. Section 54 (ibid) was applied to the Bahawalpu State vide notification, dated 28-5-1931. The value of the land in question being more than of the value of Rs,100 no title can be conveyed through an oral transaction and otherwise than through a registered sale-deed. Mutation No,63 in favour of the respondent No,1 would not transfer any title in his favour.
21. The reliance placed by respondent No,1 upon the order, dated 11-3-1980 passed by the Member Board of Revenue is also of no avail to him.
22. The claim of the petitioners to be the owners of the suit land is based upon registered sale- deeds Exhs.D-1 to D.5 executed in their favour by Mst. Ghulam Fatima. The contention of Mst.
Ghulam Fatima that she was a minor at the time of the execution of the said sale-deeds in negatived by the order of this Court (Exh.D.6) by virtue of which Mst. Ghulam Fatima was stated to have attained majority. The other contention that she was a Pardahnasheen lady and did not execute the sale-deed is not proved by any cogent evidence on the record. This contention is also negatived by the act of Mst. Ghulam Fatima who had challenged the sale-deeds by separate civil suit which she withdrew by the order, dated 24-1-1988.
23. There is nothing on the record to suggest that respondent No,1 exercised due care and caution before the attestation of mutation of sale in his favour.
24. Indeed the mutations of exchange as well as the mutation of sale were both a conscious exercise to deprive Mst. Ghulam Fatima of her ownership in the land in question. The decree, dated 27-6-1973 i,e, Exh.D-10 and Exh.D.11 could not be challenged through a civil suit on 26-7-1980 as in the meanwhile section 12(2) had been brought on the statute book on 26-3-1980 which was added by Ordinance X of 1980. The suit of Muhammad Hanif was also barred by time.
25. For all that has been discussed here inbefore, the judgment and decree, dated 20-4-1989 of the Appellate Court cannot be sustained. It is a result of an irregular exercise of jurisdiction. As a result this civil revision succeeds and the impugned judgment and decree, dated 204-1989 passed by the District Judge, Bahawalnagar is set aside. Parties to bear their own costs.