MAULVI ANWARUL HAQ, J.----This case has a chequered history. The property in suit was owned by Noor Muhammad. On his death it had devolved upon his widow namely, Mst. Hamidan Begum and six sons i.e. Present respondents Nos.1 to 5-A. Now Mst. Hamidan Begum was appointed as guardian of the said minor children on 19-11-1973 and thereafter she herself and on behalf of the minors children proceeded to appoint Bandu respondent No.6 as a general attorney on 12-1-1974.
Acting under the said document Bundu sold the property to Ashiq Ali respondent No.7 vide Mutation No.3700 attested on 31-8-1974. This Ashiq Ali sold the property to the present petitioner vide Mutation No.3737 attested on 14-11-1974. On 1.1-10-1975 Hamidan Begum herself as also on behalf of her minors children filed a civil suit challenging the said power of attorney and consequent sales. Now in this suit apart from Bundu and Ashiq it was Sabir, father of Faqir Muhammad petitioner who was impleaded as a party. However, he contested the suit and ultimately the suit was partly decreed inasmuch as the said document and sales were held to be ineffective as against 7/8 shares of the minors. This was done vide judgment and decree dated 21- 7-1978 (Exh.P.3). Against this three appeals were filed and all these appeals were dismissed on 3-11- 1980. Thereafter R.S.A. No. 827 of 1980 was filed in this Court which was dismissed on 12-10-1983 (judgment Exh.P.7).
2. On 25-4-1981 i.e. While the said R.S.A. Was still pending the petitioner filed a suit seeking declaration that he is owner of the property. This suit was dismissed by the learned trial Court on 4- 11-1987. However, learned Additional District Judge, Jhelum, proceeded .To allow the appeal on 7-4- 1991 (judgment Exh.D.3). He proceeded to hold the sale to be valid. Against this judgment C.R.No.158 of 1991 was filed by Mst. Hamidan Begum. This civil revision was dismissed as withdrawn on 8-3- 1993 (order Exh. PD. 4).
3. On 23-12-1987 the respondents Nos. 1 to 5-A i.e. The said children of Mst. Hamidan and Noor Muhammad filed a suit for separate possession of their 7/8 shares by partition. Now this suit was contested by the petitioner but it was conceded by respondents Nos. 6 and 7 after the learned trial Court decreed the suit on 28-2-1994. A first appeal was dismissed by the learned Additional District Judge, Jhelum, on 24-7-1996.
4. Since somewhat conflicting judgments came from this Court in R.S.A.No.827 of 1980 and C.R.No.158 of 1991, this civil revision was ordered to be heard by a larger Bench and accordingly we have heard this case today.
5. Learned counsel for the petitioner has argued with reference to the judgments in the cases of Muhammad Sohail and 2 others v. Government of N.-W.F.P. And others (1996 SCM R 218) and Pakhsh v. The Chairman, Allotment Committee (PLD 1987 SC 145) that the judgment delivered in R.S.A.827 of 1980 (Exh.P.7) could not even be looked into by the learned Courts below as it did not fall within the mischief of section 11, C.P.C. Or otherwise under Article 54 or 55 of the Qanun-e-Shahadat Order, 1984. The precise contention of the learned counsel is that the petitioner who had purchased the property from Ashiq Ali before the institution of the said earlier suit had not been impleaded as party and notwithstanding the fact that his own father had been contesting the matter throughout, judgment would not be binding upon his client.
6. Mr. Subah Sadiq Bhutta, learned counsel for the respondents Nos. 1 to 5 on the other hand concedes that section 11, C.P.C. Or its principles would not be strictly applicable. He, however, presses into service estoppel by conduct. According to the learned counsel the said suit started in the year 1975 and culminated in the year 1983 vide Exh.P.7 and petitioner had been silent spectator and, as such would be estopped by his conduct. He cites case of Nana Oforiatta II v. Nana Abu Bonsra II (PLD 1958 PC 68). Also refers to the case of Mst. Khurshid Begum and others v. Mr. Ghulam Kubra and others (1982 SCM R 90) to urge that keeping in view relationship, and even no denial of knowledge of the said proceedings to which his father was contesting party, the rule laid down in the said judgments would become applicable.
7. We have gone through the records, copies whereof are appended with this civil revision, with the assistance of the learned counsel for the parties. Now it is admitted position that the respondents were minors at the time the sale took place in favour of Asniq ana also in favour of the present petitioner. The case set up by the vendees was that sale had taken place with permission of the learned Judge of Guardian Court. We have checked up the record. What to speak of any order for grant of permission we do not even find any particulars of the same i.e. Its dates etc., in the entire pleadings and entire evidence. It is matter of record that the property in question is located within Municipal Limits of Dina. However, somehow or the other this sale came to be recorded in favour of Ashiq by means of a Mutation 3737 attested on 31-8-1974. There is nothing forthcoming from this document as to whether Patwari, Girdwar or Tehsildar was aware that vendors are minors. Nobody asked and nobody stated and there is nothing in this mutation to allege that sale was being conducted with permission of the Guardian Court Judge.
8. We may further state that sale had been effected in favour of Ashiq by Bundu khan who was appointed as an attorney by guardian Mst. Hamidan Begum vide document Exh. P.1. To our mind the lady after having been appointed as guardian was to act within four corners of terms of appointment and of course provisions of Guardians and Wards Act. We also are of the view that a guardian appointed by the Judge of Guardian Court and thus conferred authority by the said Court cannot further delegate the same to any other person and certainly not without the permission of the said learned Judge. The power of attorney on the face of it is void being without lawful authority.
9. Now coming to the said contention of the learned counsel for the parties. We have already narrated above the said history of this case. Now in the earlier round it was concurrently held by the learned trial Court, First Appellate Court and this Court (Exhs.P.3, P.5 and P.7 respectively) that the sale is void to the extent of minors. Thereafter, Faqir Muhammad petitioner filed a suit and this was dismissed vide judgment and decree dated 4-11-1987 of Mr. Sakhi Muhammad Kahute, learned Civil Judge, Jhelum (Exh.P.1) An appeal was filed by the petitioner which was allowed by a learned Additional District Judge, Jhelum, who proceeded to hold that since the lady was appointed as guardian it is to be assumed that learned Guardian Judge permitted the sale of the property in favour of Ashiq. This was done vide judgment and decree dated 7-4-1991 (Exh.D.3). Against this judgment C. R.No.158 of 1991 was filed by the present respondents. Now this civil revision was taken up on 8-3-1993 when learned counsel appearing for the revision petitioners (present respondents) stated in presence of learned counsel for the present petitioner that titled suit seeking possession of the land in, dispute is pending in the Court of learned Civil Judge at Jhelum and which has been filed by the revision petitioners and is being contested by the respondents (in civil revision). The petitioner did not want to press the said civil revision and will fight out the suit which has been tiled by them in the Court of competent jurisdiction. After noting the said statement following order was passed:-- "Resultantly, the civil revision is dismissed as not pressed. It is clarified that as civil revision has been dismissed, the order by which the proceedings before the lower Court in the suit titled Zahoor Ahmad and others v. Faqir Muhammad' stands vacated and the said suit can now proceed and be decided in accordance with law."
It will be noted that reference in the said order is by all means, to present suit that had already been filed by the respondents for separate possession of their share in the suit property by partition. Now this suit had been filed on 23-12-1987 i.e. To say during pendency of the appeal which was contested vide Exh.D.3.
10. It may be noted that against the judgment Exh.P.5 Ashiq as well as Muhammad Sabir, father of the petitioner filed R.S.A. No. 827 of 1980. We may here note contention raised on behalf of Muhammad Sabir (father of the petitioner) in Exh.P.7 and noted by this Court:-- "It is further argued that Muhammad Sabir appellant being a second vendee, having no notice of any defect in the title of Ashiq Ali appellant stands fully protected in law as he is a bona fide purchaser for consideration without any notice of any defect whatsoever."
It is thus apparent on the face of record that father of the petitioner who was made a party never disclosed that actual vendee is his son. At the same time the petitioner also opted to remain silent spectator when the said litigation was going on and he has no where pleaded ignorance of the same. Needless to state that no attempt was made to get impleaded as party. The Privy Council judgments cited by the learned counsel for the respondents, to our mind fully attract to the facts of the present case. Lord Denning in his leading opinion observed as follows:-- "There is a practice in this Court, by which any person having an interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the Judges of the Prerogative Court held that if a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to re-open the case. That principle is founded on justice and common sense, and is acted upon in Courts of equity where, if the persons interested are too numerous to be all made parties to the suit one or two of the class are allowed to represent them; and if it appears to the Court that everything has been done bona tide in the interests of the parties seeking to disturb the arrangement, it will not allow the matter to be re--opened."
11. We, therefore, do hold that even if the petitioner was not party to the previous judgments, he was estopped by his conduct to get the matter re-opened which had already been finally decided.
12. We may further note here that there is no doubt in our mind that judgment delivered by Mr. Muhammad Hussain Maiken, learned Additional District Judge, Jhelum (Exh.D.3) is wholly without jurisdiction and could have been challenged and set aside in this very suit in terms of Article 58 of Qanun-e-Shahadat, 1984. Now learned Additional District Judge may not be said to be over- stepping his jurisdiction while holding that earlier judgment was not binding on the petitioner since he was not party. However, at the same time he was fully aware of the said judgment. The finding recorded was that sale had been made without permission of the Guardian Judge. Now the judgment can be said to be not applicable to the extent that it decides the said allegation in the absence of the petitioner. However, thereafter it was for the petitioner to prove that the sale was with permission. We have examined. The entire judgment and we do not find any mention of any order directing the sale. We have already stated above that in the entire judgment there is no mention of even particulars of such order much less of its existence. One fundamental principle firmly entrenched in our system of jurisprudence is that a contract by a minor is void. This does not need a declaration by a Court or any incidental proceedings. Once it is admitted of proved before a Court that a minor is party to a contract sought to be enforced against him, the same shall not be enforced on the ground that it is void. Learned Additional District Judge has proceeded in utter violation of the statutory provisions as also interpretation placed upon them by superior judiciary of this country and as such is without lawful authority and without jurisdiction. We have already noted above that learned Additional District Judge has proceeded on the assumption that since the lady was appointed as guardian of her children it is to be assumed that she was permitted to sell the property: There is no such presumption available in the law and certainly not on the record.
Even in the present suit no evidence is forthcoming of any permission having been accorded by the learned Guardian Judge to the sale in favour of Ashiq. In this behalf we have already referred to available evidence.
12-A. For all that has been discussed above, we do not find any force in this civil revision which is accordingly dismissed. Parties are left to bear their own costs.