ASIF SAEED KHAN KHOSA, J.---The necessary facts giving rise to the present appeal are that Muhammad Umar Khan appellant filed a suit for possession on 17-9-1990 before the Senior Civil Judge, Vehari in respect of agricultural land measuring 102 Kanals and 14 Marlas situated in Mauza Qadir Wah, Tehsil and District Vehari. According to the plaint the appellant plaintiff was the owner of the land in question having received the same from his mother namely Mst. Aziz Begum, respondent No. 1, herein, as a gift vide mutation No.187 dated 30-3-1973 which alienation was duly recorded in the Revenue Record. According to the appellant he was born on 22-10-1969 and he attained majority on 22-10-1987 before which date he was not competent to alienate his property in any manner nor was anyone else competent to do so on his behalf without permission from a Guardian Judge. The suit land was exchanged by the appellant's father with the appellant's mother, respondent No. l herein while receiving in return a shop situated in Multan City owned by the appellant's mother and this was achieved through a registered exchange deed dated 3-11-1979 when the appellant was only 10 years of age. Still later the appellant's mother sold the suit land in favour of Muhammad Anwar, respondent No.2 herein, through a registered sale-deed No.2593 dated 27-11-1979 for a consideration of Rs.1,91,620. The said sale-deed in favour of respondent No.2 was incorporated in the Revenue Record vide Mutation No.729 sanctioned on 26-3-1980. In the plaint the appellant had maintained that the initial exchange of the appellant's land by the appellant's father in favour of the appellant's mother and the subsequent sale of the said land by the mother of the appellant in favour of respondent No.2 were void and nullity in the eyes of law as both the said transactions had taken place when the appellant was a minor. In the said plaint the appellant had impleaded his mother, respondent No.1 herein, as defendant No.1 and Muhammad Anwar, respondent No-2 herein, as defendant No.2. The appellant's mother did not come forward to contest the appellant's suit land and, therefore, she was proceeded against ex parte by the learned trial Court. However, Muhammad Anwar, respondent No.2 herein, submitted his written statement and contested the appellant's suit by raising various pleas. Upon the divergent pleadings of the parties the following issues were framed by the learned trial Court.:-----
(1) Whether the suit is not maintainable? OPD.
(2) Whether the suit is bad for non-joinder of necessary party? OPD.
(3) Whether the suit is bad for multifarious of causes of action? OPD
(4) Whether the suit is barred by time?. OPD
(5) Whether the defendants are bona fide transferees without notice of the disputed property?
OPD.
(6) Whether the suit is hit by sections 6 and 8 of Limitation Act? OPD.
(7) Whether the suit is false, frivolous and vaxatious and the defendants are entitled to special costs? OPD.
(8) Whether the plaintiff has not claimed any relief against the exchange of land situated in Multan? OPD.
(9) Whether the suit is bogus and confusing and the suit is hit by Order 7, rule 1-e, C.P.C.? OPD.
(10) Whether the suit has not been properly valued for court-fee and jurisdiction? OPD.
(11) Whether the plaintiff is estopped to isle this suit? OPD.
(12) Whether the plaintiff has waived his right? OPD.
(13) Whether the plaintiff has not come to the Court with clean hands and is not entitled to any relief? OPD.
(14) Whether the plaintiff is entitled to relief prayed for? OPP.
(15) Whether the plaintiff is owner of the disputed property? OPP.
(16) Relief.
Thereafter, the parties led oral and documentary evidence in support of their respective stands.
2. After considering the oral and documentary evidence of the parties and hearing arguments of the learned counsel for the parties the learned Senior Civil Judge, Vehari decided Issues Nos. 1, 5, 8, 9, 11, 12, 13 14 and 15 against the appellant and in favour of respondent No.2 but decided Issues Nos.,2, 3, 4, 6, 7 and 10 against respondent No.2. Thus, through the judgment and decree dated 18- 10-1995 the learned Senior Civil Judge, Vehari dismissed the appellant's suit with costs. Hence, the present appeal by the appellant before this Court.
3. In support of this appeal the learned counsel for the appellant has assailed the findings recorded by the learned trial Court on issues Nos.1, 5,8, 9, 11, 12, 13, 14 and 15 and has maintained that the said findings have been rendered by the learned trial Court without appreciating the correct legal and factual position pertaining to this case. It has also been argued by him that at the relevant time the appellant was admittedly a minor and, therefore, any alienation of his property was hit by the provisions of section 11 of the. Contract Act, 1872, He his referred to the case of Karim Bakhsh v. Gul Rehman (1990 CLC 1200) in this regard. It has also been argued by the learned counsel for the appellant that the learned trial Court was not legally justified in drawing adverse inference against the appellant on account of late filing of the suit against the appellant as the suit had admittedly been filed by the appellant within the prescribed period of limitation. It has lastly been argued by the learned counsel for the appellant that in the facts and circumstances of this case the suit of the appellant merited to be decreed in his favour.
4. The appellant's mother namely Mrs. Aziz Begum respondent No. l has failed to appear before this Court despite notice and, therefore, she is proceeded against ex parte. It may not be out of place to mention here that she had been proceeded against ex parte even before the learned trial Court.
5. The learned counsel for respondent No.2 has argued that the conduct of the appellant after attaining majority was such that he appeared to have consented to the alienation of his land in question as he had not initiated any proceeding in that regard soon after attaining majority and the present suit had been tiled by the appellant at a time when the period of limitation for tiling the same was at its last stage. In the alternative the learned counsel for respondent No.2 has argued that respondent No.2 was a bona tide purchaser of the land in question for valuable consideration without notice and, thus, his interests ought to be protected. In this context a reference has been made to the provisions of section 41 of the Transfer of Property Act, 1882 and reliance has been placed on the case of Manzur Hussain Shah and another v. Ghulam Hussain and 22 others (PL D 1972 Lah. 855). With these submissions it has been maintained by the learned counsel for respondent No.2 that the suit of the appellant had been rightly dismissed by the learned trial Court.
6. We have heard the learned counsel for the parties and have gone, through the record of this case with their assistance.
7. It may straightaway be observed by us that by virtue of the provisions of section 11 of the Contract Act, 1872 a minor is not competent to enter into a contract. It is admitted at all hands in this case that at the time of the relevant alienation this case the appellant was indeed a minor. It is also not disputed that none of the parents of the appellants got himself/herself appointed as a guardian of the appellant's property from a Guardian Judge and, therefore, none of the parents of the appellant could alienate the appellant's property on his behalf. It may be true that under the Muslim Personal Law a legal natural guardian may in exceptional cases of necessity alienate a minor's property but that is permissible only where such an alienation is to be exclusively for the minor's benefit. A reference in this context may be made to the case of Manzoor Hussain and others v. Bhole Khan and others (1991 CLC 640). However, the evidence in this case does not show that the alienations in question had been made out of necessity for the exclusive benefit of the appellant or as to how the appellant actually stood benefited from such alienations. In these circumstances there cannot be any cavil with the argument that the alienations in question were legally) incompetent and, therefore, completely bereft of any effect.
8. We have also strongly felt that the learned trial Court had erred in raising an adverse inference against the appellant on account of his filing his suit at a time when the period of limitation for filing the same was about to run out. It is settled law that as long as a suit is filed within the prescribed period of limitation no adverse inference is to be drawn against the plaintiff on the basis of filing of such a suit at a particular stage within the period of limitation. Different persons can have different reasons for filing their suits' at different stages of the prescribed period of limitation.
In the present case the appellant had maintained in the plaint that after attaining majority he had repeatedly required respondent No.2 hand over possession of the property in dispute to the appellant and to get the record of rights corrected in favour of the appellant before filing the suit in this case. Even otherwise due to involvement of the appellant's parents in the impugned alienations the appellant must have spent some time in appreciating the illegality of the exercise and then in making up his mind to challenge the same before a Court of law. Thus, this factor could not have been considered by the learned trial Court as conduct disentitling the appellant to the relief that he deserved.
9. As regards the plea of respondent No.2 regarding his being a bona fide purchaser of the land in question for valuable consideration without notice we may un-mincingly observe that, upon an assessm ent of the evidence available on the record, we have not felt convinced of bona fide of respondent No.2 in the whole affair. It is available on the record that both the said alienations had taken place in the year 1979 when the appellant was only 10 years of age and he was at that time admittedly an exclusive owner of the land in question. On 17-5-1979 an agreement had been reduced into writing (Exh.D.2) between the appellant's father and respondent No.2 whereby the appellant's father had agreed to alienate the suit land in favour of respondent No.2 and it was expressly recorded in the said agreement that the sale would be got registered after the appellant's father gets himself appointed as a guardian of the appellant's property from a Guardian Judge. This clearly shows that at that time respondent No.2 was conscious of the factual position regarding the appellant's minority as well as of the legal position regarding incapacity of the appellant's parents to alienate the appellant's property. Subsequently the land in question belonging to the appellant was exchanged by the appellant's father with the appellant's mother, respondent No.1 herein, for a shop in Multan City which was transferred by the appellant's mother in favour of the appellant's father. This exchange had taken place through a registered exchange deed dated 3-11-1979. Soon after getting the appellant's land exchanged in her favour the appellant's mother sold the same to respondent No.2 through registered sale-deed dated 27-11- 1979. This shows, and shows very clearly to us, that this was a device adopted by the appellant's parents as well as respondent No.2 to go through the sale agreed upon earlier on without the parents of the appellant getting themselves appointed as guardian of the appellant's property.
Respondent No.2 was surely a beneficiary of this stratagem and, therefore, no premium can be claimed by him upon such a circumvention of the law. In order to claim protection of the provisions of section 41 of the Transfer of Property Act, 1882 a purchaser has to convince the Court about his bona fide but in the present case respondent No.2 has utterly failed to convince us on that score.
10. For what has been discussed above we have arrived at a confident conclusion that the findings recorded by the learned trial Court on Issues Nos. 1, 5, 8, 9, 11, 12, 13, 14 and 15 were not justified in view of the evidence available on the record and in view of the peculiar circumstances of this case.
The said findings are, therefore, reversed, the present appeal is accepted and the suit of the appellant is hereby decreed leaving the parties to bear their own costs.