This civil revision is against concurrent findings of the Courts below. The initial judgment and decree was passed by Mian Nasir Hussain, learned Civil Judge 1st Class, Attock, on 10-11-1985, dismissing the suit of the plaintiffs now petitioners. The judgment anti decree of the learned Civil Judge was affirmed by Sheikh Abdur Razzaq, learned District Judge, Attock, in Civil Appeal No.153 of 1985, vide his judgment and decree, dated 15-4-1986. It may be pointed out that the respondents had also filed cross--objections before the learned District Judge which were disposed of with the following words: "So far as cross-objections are concerned, suffice to say, that, as the appeal has been dismissed, so there is no need of dilating upon these cross-objections and the same are also dismissed."
2. The property consisting of a house etc. Was originally owned by one Kalandar Khan who sold it to Faqir Khan, the predecessor-in-interest of the petitioners, vide a sale-deed, dated 24-8-1938 (Exh.P.I). Upon the death of Faqir Khan, the property devolved in equal shares on his sons Munawar Khan and Amrood Khan. Amrood Khan is the father of plaintiffs Nos. l to 5 and husband of plaintiff No.6 and also the predecessor-in-interest of petitioners Nos.7 and 8.
3. It is said that when this property was sold, it was in possession of Wali Dad, defendant No. 1, as a non-occupancy tenant. It was said that Wali Dad handed over the possession of the property to defendant No.2 Muhammad Riaz through a sale-deed dated 18-10-1971.
4. Through this suit of possession, they have challenged the sale-deed on the ground that defendant No. l .Had, no locus standi in alienating the property to defendant No.2. And that he could only, -according to the terms of the Wajib-ul-Arz, retain the possession of the property and as he had left the village on migration and handed over the property to-defendant No.2 Muhammad Riaz, he had no right left in the property, and the transfer ,through sale was of no legal effect.
5. Defendant No. l was proceeded ex parte as he showed no interest. Muhammad Riaz, defendant No.2, took the plea that the suit-property was mortgaged with his father and brother (Exhs.D-1 and D-2) since 1955 and from whom he later purchased the suit-property alongwith the right of redemption, through the sale-deed under reference. And that he had further improved the property after spending money on it. He also claimed that he had acquired adverse possession over the suit-property (as the law then was).
6. The learned trial Court had framed six issues based on the controversy and these are reproduced below:--
(1) Whether the description of suit-property is incorrect? If so, what is the correct description? OPD
(2) Whether the suit is within time? OPP
(3) Whether the plaintiffs are estopped by their conduct to bring this suit? OPD
(4) Whether the suit is bad for non-joinder of necessary parties? OPD
(5) Whether the plaintiffs are entitled to get possession of suit-property? OPP (5-A) Whether the defendant No.2 has become owner in possession of suit-house due to adverse possession for more than 12 years? OPD-2 (5-B) Whether the defendant No.2 had made valid improvements on the suit-land. If so, to what extent and of what effect? OPD-2 (5-C) Whether the suit is undervalued. If so, what is the correct valuation? OPD (5-D) Whether the defendant No.2 is entitled to get special costs. If so, to what extent? OPD (5-E) Whether report of Local Commissioner is liable to be set aside? OPD-2
(6) Relief.
7. In paragraph 1.0 of his judgment, the learned District Judge, Attock, observed:-- "The plaintiffs have filed this suit for possession of the Haveli, which has been fully described in the headnote of the plaint Admittedly, this Haveli was the property of Qalandar Khan, who alienated the same in favour of Faqir Khan, sale-deed Exh. P. 1 , dated 24-8-1938. It is also fact that Wali Dad was in possession of suit-property at the time of alienation in favour of Faqir Khan. It is also fact that this very suit-property was mortgaged by Maskeen son of Wali Dad and Wali Dad son of Allah Dad in favour of Fida Muhammad and Dost Muhammad, vide mortgage deeds Exh.D.I and Exh.D.2, dated 19-9-1955. It is fact that the present plaintiffs never agitated their entitlement at the time of execution of the said mortgage deeds. It may be argued that the plaintiffs were not in the know of said mortgage deeds. Be that as it may, the plaintiffs came to know about the execution of said mortgage deeds when they came to know about the execution of sale-deed Exh.D.8, dated 18-10- 1971 , However, they have never chosen to challenge the mortgage deeds by which certain rights were created in favour of Fida Muhammad and Dost Muhammad and certain encumbrances were created upon the said property. Under such circumstances, Article 120 of Limitation Act comes into play which enjoins upon the plaintiffs to seek a declaration for setting aside the said mortgage deeds. The plaintiffs have not challenged the said mortgage deeds and have also not filed any suit for setting aside those mortgage deeds. The plaintiffs on the other hand have filed suit for possession and has relied upon Articles 142 to 144, Limitation Act. As the present sale-deed, dated 18-10-1971 Exh.D.8 clearly contains a mention of the mortgage deeds Exh.D-1 and Exh.D-2, dated 19- 9-1955, so the plaintiffs were bound to challenge the said mortgage deeds and file a suit within a period of six years after having come to know about the sale-deed dated 18-10-1971 (Exh.D.8). The plaintiffs have not done so, as such the very suit is hopelessly barred by limitation. "
8. The question, therefore, with respect to the ownership of the Haveli has been answered by the learned District Judge. The case of the. Petitioners was knocked out on the ground that they did not in the same go throw a challenge to the mortgage deeds, Exhs.D-1 and D-2, while moving for their cancellation within three years from their knowledge pursuant to Article 91 of the Limitation Act.
9. What was lost sight of, was the fact that the sale-deed; Exh.D.8 of 18-10-1971, had passed on ail rights in the property to Muhammad Riaz including the right to redeem the property mortgaged with the father and brother of Muhammad Riaz. And the question, under the circumstances, which called for determination, was with respect to the status of defe2dant No. l who had firstly mortgaged the property and later had sold his right of redemption to Muhammad Riaz, respondent. Because only after determination of his status, it could be said whether the mortgages made by defendant No. l were competent or were void documents calling for no notice.
11. There is wide difference between an agreement which is voidable and one which is void. A voidable contract is a good contract so long as it is not avoided by the person who has the right to avoid the same, while a void contract is no contract in law, and in the eye of law it does not exist: When a party seeks to avoid a voidable contract and gets certain ancillary relief it follows that if his claim for avoidance of the contract is barred by limitation he cannot get the ancillary relief while if the contract is void it is not necessary to have the contract set aside and the rights of the parties can be determined independently of the deed. So, even if the claim for the cancellation of the deed or for declaration that it is void is barred by limitation, the rights of the parties can still be determined independently of the same. Therefore, where property has been transferred under a void agreement, the plaintiff is entitled to bring his suit for possession within 12 years and Article 91 would have no application.
12. Reference in this connection may be made to the cases of Mst. Aisha Begum v. Mt. Kundan Jan and others AIR (32) 1945 All. 367, Abdur Rehman v. Abdul Haq and others PLD 1960 (W.P.) Kar. 625, Muhammad Akbar Shah v. Muhammad Yousaf Shah and others PLD 1964 SC 329 and Abdul Hamid alias MD. Abdul Hamid v. Dr. Sadique A.I Ahmad and others PLD 1969 Dacca 357.
13. Reference may also be made to the case of Dhuman Khan and others v. Gurmukh Singh and others AIR 1936 Lah. 394.
14. Some other aspects which were not gone into by the Courts below, pertain to the question as to what were the conditions of Wajib-ul-Arz pertaining to non-occupancy tenants. Which may have further shed light on the status of defendant No. l and would have clarified the whole position further in respect of the alienation made by him whether through mortgage or through sale. It appears that the Courts below had not taken enough pain in appreciating the questions involved and consequently the findings given are neither comprehensive nor illuminative nor do they completely adjudicate the controversy inter se the parties.
15. The matter is, therefore, returned to the learned First Appellate Court i.e. The learned District Judge, Attock, with directions that he may hear the case afresh as per the observations made hereinabove and decide the factual controversy through an enlightened judgment. And before whom the parties are to appear for this purpose on the 11th June, 2001. The learned District Judge shall endeavour to decide this matter with convenient dispatch and preferably before the end of July, 2001. Consequently, the civil revision succeeds but there will be no order as to costs.