PLJ 2006
Present: Talaat Qayyum Qureshi, J.
Mst. RUKHSANA BEGUM--Petitioner
versus
Mst. ULFATA etc.--Respondents
C.R. No. 1046 of 2005, decided on
31.3.2006.
Limitation Act, 1908 (IX of 1908)--
----S. 8--Specific Relief Act, (I of
1877), S. 8--Plaintiff attained majority on 25.10.1979 and suit was filed on
24.9.1987 containing prayer for decree of possession--As suit could be filed
within 12 years so it was found within time. [P.
137] A & B
1994 CLC 1240; PLD 2004 Lah. 255 &
PLD 1994 SC 462, ref.
Mr. Amjad Zia, Advocate for Petitioner.
Mr. Nasir Khan Khalil & Mr. Assad
Jan, Advocates for Respondents.
Date of hearing : 31.3.2006.
Judgment
Mst. Ulfata, Respondent No. 1/plaintiff
filed suit against the petitioners/defendants and others for declaration,
perpetual injunction and in the alternate for possession of the suit property
mentioned in the heading of the plaint. The said suit was resisted by the
petitioners/defendants by filing written statement. The learned trial Court
after framing issues, recording pro and contra evidence of the parties
dismissed of the Respondent No.1/plaintiff vide judgment and decree dated
28.10.2004.
2.
Feeling aggrieved with the said judgment and decree, Respondent
No.1/plaintiff filed Appeal No. 9/13 of 2005 in the Court of learned Additional
District Judge-XIV,
3.
Being not contented with the judgment and decree dated 6.6.2005 passed
by the learned Appellate Court, the petitioners/defendants have filed the
revision petition in hand.
4.
Mr. Amjad Zia, Advocate the learned counsel representing the
petitioners/defendants argued that the suit filed by Respondent No. 1/plaintiff
was barred by time. She attained majority on 25.12.1979 whereas initial suit
was filed on 24.9.1987 and the amended plaint was filed on 25.6.1990 under
Section 8 of the Limitation Act she could file the suit within three years of
attaining her majority but the learned Appellate Court failed to appreciate
this legal position. Reliance was placed on (1994 CLC 1240).
5.
It was also argued that the petitioners/defendants have raised
construction spending lacs of rupees and in case of passage of decree in favour
of the plaintiff, the petitioners were entitled for the compensation or the
actual price of the constructed area but this aspect of the case was over
looked by the learned Courts below.
6.
It was further argued that the petitioners are the bonafide purchasers
of the suit property having purchased from one Salahuddin whose name appeared
in the revenue record and after clarifying about his title, the petitioners
purchased the property in dispute after paying considerable sale consideration
to the vendor, therefore, their rights are protected under Section 41 of the
Transfer of Property Act.
7.
On the other hand Mr. Nasir Khan Khalil, Advocate the learned counsel
representing Respondent No. 1/plaintiff argued that the Mutation No. 1713 was
attested on 5.12.1974 in favour of Qudratullah and it has been established on
record that at the time of attestation of the said mutation Respondent No.
1/plaintiff was minor. This fact has also been admitted by the learned trial
Court and its findings were not challenged by the petitioners/defendants in
appeal, therefore, the same have attained finality.
8.
It was also argued that the attestation of mutation mentioned above was
illegal and void ab initio act of the petitioners/defendants, there-fore, no
limitation would run against Respondent No. 1/plaintiff to challenge the same.
Reliance in this respect was placed on (PLD 2004
9.
It was also argued that the mutation was wrongly and illegally attested,
therefore, no period of limitation would run against the Respondent
No.1/plaintiff. Reliance in this regard is placed on (PLD 1994 Supreme Court
462).
10.
About the improvements, the learned counsel argued that there is no
evidence available on record to show that the petitioners/defendants have made
any improvements. The D.W. was silent in this regard, therefore, the learned
Appellate Court did not grant any improvements.
11.
Mr. Assad Jan, Advocate the learned counsel representing Respondent No.
2 argued that the learned trial Court had rightly dismissed the suit filed by
Respondent No. 1/plaintiff but the learned Appellate Court committed illegality
and it did not appreciate the evidence available on record. Mutation No. 1713
was attested by the Respondent No.1/plaintiff herself and she had thumb
impressed the same. He further argued the Courts below were at variance,
therefore, the revision petition be admitted to regular hearing.
12.
After haring the learned counsel for the parties, I admit the revision
petition in hand to regular hearing and since full arguments in the case had
been addressed by the learned counsel for the parties, therefore, on their
request, I proceed to decide the same on merits today.
13.
The argument of the learned counsel for the petitioners/defendants that
the suit filed by Respondent No. 1/plaintiff was barred by time as under
Section 8 of the Limitation Act and the suit could be filed within three years
of attaining her majority has no force. Respondent No. 1/plaintiff admittedly
attained majority on 25.10.1979. In this regard School Leaving Certificate was
placed on record as Ex. PW3/2. She filed suit on 24.9.1987. Similar question
came up for hearing before the august Supreme Court of Pakistan in case "Moolchand
and 9 others vs. Muhammad Yousaf (Udhamdas) and 3 others" (PLD 1994
Supreme Court 462), in which it was held:--
"After reading the case-law
mentioned in the preceding paragraph and language used in Sections 6 and 8 of
the Limitation Act, we feel inclined to form the view that combined effect of
Sections 6 and 8 to enable a person who has been dispossessed during his
minority to file a suit within three years of his attaining majority or within
usual period of time ordinarily allowable to a major, which is longer. If minor
attains majority after three years of cause of action he can sue within nine
years from the date of attaining majority if period of limitation is 12
years".
14.
Similarly in "Muhammad Zofigan vs. Muhammad Khan and 49
others" (PLD 2004
"The reading of the provisions of
Sections 6 and 8 of the Limitation Act shows that provisions of Section 8
provide exception to a person suffering under disability like a minor from the
limitation provided under Section 6 read with Ist Schedule of the Limitation
Act. Such person on attainment of majority or cessation of disability can life
suit within the period of limitation provided in the Ist Schedule of the
Limitation Act if such period had not expired. If period of such limitation had
elapsed, such person also had a maximum period of three years from attainment
of majority/cessation of disability to file the suit....."
15.
The suit in hand, as mentioned above, was filed on 24.9.1987 which
contained prayer for decree for possession also. Under Article 142 of the Ist
Schedule of the Limitation Act, suit for possession could be filed within a
period of 12 years. The suit filed by Respondent No.1/plaintiff was, therefore,
within time.
16.
The argument of the learned counsel for Respondent No. 1/plaintiff that
attestation of Mutation No. 1713 Ex. PW2/1 on 5.12.1974 in favour of
Qudratullah and others was illegal and void ab initio has a force in it. It has
been established on record that at the time of attestation of the above
mutation, Respondent No. 1/plaintiff was hardly 13 years old and thus was
admittedly under a legal incapacity under Section 11 of the Contract Act to
enter into the sale transaction or consent to sale on her behalf. At the time
of sale transaction, Respondent No. 1/plaintiff had not attained the age of 18
years to be sue-juris for validly entering into a sale contract and the sale
transaction was thus void ab initio and had no legal existence.
17.
The argument of the learned counsel for the petitioners/defendants that
the petitioners/defendants are bonafide purchasers of the suit property having
purchased from one Salahuddin, therefore, their rights were protected under
Section 41 of the Transfer of Property Act has no force firstly; because no
rights or liabilities as claimed by the petitioners/defendants arose from such
a void transaction. The said transaction was incapable of enforcement and the
petitioners/defendants could not even to set up a valid defence plea to claim a
right or title as the alleged original purchaser had no title to pass to the
subsequent vendees i.e. the petitioners/defendants.
18.
Secondly; the protection under Section 41 of the Transfer of Property
Act, it is well-settled principle of law, is not extendable in the cases of
transaction which are void ab initio.
19.
The argument of the learned counsel for the petitioners/defendants that
the petitioners/defendants have spent huge amount on the
improvements/construction of the suit property but the learned Appellate Court
ignored the same, has also no force. Suffice it to say that the
petitioners/defendants did not produce any evidence to show as to what amount
was spent on the construction and how much construction was made in the suit
property. Zahir Shah was examined as D.W. 1 as attorney of Defendants Nos. 4
& 5 stated that there was construction on the property which was made by
spending a huge amount. Except this vague statement there is nothing on record
on the basis of which the petitioners/defendants could claim the amount of
alleged improvements made by them.
20.
The learned Appellate Court has properly appreciated the evidence
available on record and I have not been able to find out any
mis-reading/non-reading of evidence or any illegality or any material
irregularity or jurisdictional error or defect warranting interference in the
impugned judgment of the learned Appellate Court. Resultantly, the revision
petition is dismissed. There shall be no order as to costs.
(Javed Rasool) Revision dismissed