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Civil Revision No. 199 of 1975, decided on 31st August, 1982.

‑‑S. 115‑Revision‑New point‑Petitioner's case set up at trial being land transferred in their favour by attorney of first respondent with consent of such respondent and such respondent major at time and not that disputed sales effected by such respondent's father in his capacity as legal guardian of property of minor‑No issue framed and no evi dence led by parties on such point‑Point also not urged before lower appellate Court‑Such point, held, cannot be permitted to be urged at revisional stage.‑[Labha Mal and others v. Malak Ram and another A I R 1925 Lah. 619(2) and Khushya v Faiz Muhammad A I R 1928 La h. 115 held not applicable].

Labha Mal and others v. Malak Ram and another A I R 1925 Lah.,619 (2) and Khushya v. Faiz Muhammad A I R 1928 Lah. 115 held not applicable.

R. S. A. No. 187 of 1968 and Ajudhiya Prashad and another v. Chandan Lal and another A I R 1937 All. 610 ref.

‑‑S.115‑Revision‑Concurrent findings‑Two Courts below concur rently holding respondent minor at tine of transaction of sale‑Findings based on proper appraisal of evidence on record and no misreading or non‑reading of evidence by Courts below pointed ant‑Findings, held, unassailable in revision.

‑‑S.115‑Revision‑Concurrent findings‑Both Courts below concur rently holding first respondent as minor at time when power of attorney allegedly executed by him‑Any agreement or authorisation by such respondent in favour of his father in circumstances. held, void ab initio, not conferring any right on his father to transfer his land in favour of petitioner and did not even require canciliation‑Mutations got attested by such respondent's father on basis of power of attorney- Without legal effect and could not affect ownership and possessory right of first respondent‑Mere fact of such respondent having mis represented himself as major at time of execution and registration of so‑called power of attorney, held further, would not work as estoppel against such respondent who declined to have appeared before Sub -Registrar for registration of power of attorney.‑[Estoppel].

---S. 115‑Revision‑Concurrent findings‑Both Courts below holding disputed sales having been made without consideration and such decision arrived at because of lack of cogent evidence on record to show any sale consideration having either been received by first respon dent himself or by any one legally entitled to receive same on his behalf‑Such findings relating as they do to a question of fact, field, cannot be disturbed in revision.‑[Question of fact].

Qazi Abdur Rashid for Petitioner.

Saleh Bin Ahmad for Respondent No. 1.

Date of bearing : 23rd June, 1982.

Muhammad Iqbal Khan, respondent No. 1 herein, owned 1/2 share is Khasra No. 414 and 1/6 share in Khasra No. 422. He also owned some share in Khasra No. 379 and was in exclusive his sadari possession thereof. The land is situated in village and tehsil Mansehra. His father Abdur Rehman Khan, respondent No. 2 herein, acting as his attorney, conveyed the aforesaid land by way of sale to Maqboolur Rehman and his four brothers, who are the petitioners and respondents 9 and 10 herein. Three mutations for the purpose, bearing Nos. 11349, 10392 and 11401, were got attested by the said Abdur Rehman Khan in favour of Maqboolur Rehman and his brothers on 27‑8‑1966, 15‑3‑1965 and 23‑12‑1966, respectively. Muhammad Iqbal Khan, respondent No. 1 herein, brought a suit, out of which this revision arises, claiming therein that he bad neither appointed his father Abdur Rehman as his attorney, nor transferred the disputed land in favour of any one, nor received any sale consideration therefore, and that all the sale transaction mentioned in the plaint were not only fictitious and collusive, but were also transacted during his minority when he was legally incompetent to enter into any contract with any one, and thus were illegal and ineffective against his rights.

2. The suit was contested by the transferee‑defendants 1 to 5 on factual as well as legal grounds, which would be reflected by the following issues framed in the case :

(1) Whether the plaintiff bas a cause of action

(2) Whether the suit is within time

(3) Whether the plaintiff is estopped by his conduct from suing

(4) Whether the defendants 1 to 5 are transferees for consideration in good faith, and their rights, as such are protected

(5) Whether in case of decree, defendants 1 to 5 are entitled to the return of sale consideration, alongwith interest and payment of compensation for improvements, if any, effected by them

(6) Whether the court‑fee paid is deficient

(7) Whether the suit is bad for non‑joinder of necessary parties

(8) Whether the mutations in dispute have been genuinely attested.

(9) If issue No. 8 is not proved, whether the plaintiff is owner of the suit land and the mutations aforesaid are ineffective against his rights on account of being attested during the minority of the plaintiff and being based on fraud, deception and mis‑representation

(10) Whether the plaintiff is entitled to the possession of the suit land as owner

(11) Relief.

The suit was tried by the Civil Judge, Mansehra, who by his judgment dated 13‑3‑1973, granted to the plaintiff the declaration claimed by him as well as the decree for the possession of the suit land. Against the judgment and decree passed by the learned Civil Judge, Maqboolur Rehman and his brothers went in appeal to the Court of the District Judge, Hazara. The appeal was beard by Mr. Inayatullah Khan, the then Additional District Judge, Hazara, who by his judgment and decree dated 18‑7‑1975, agreeing with the findings of the learned trial Judge on all the issues, dismissed the appeal, leaving the parties to bear their own costs. It is against the said judgments and decrees of the learned two Courts below that Maqboolur Rehman and his two brothers have filed this revision petition."''

4. Qazi Abdur Rashid, Advocate, appeared on behalf of the petitioner and Mr. Saleh Bin Ahmad, Advocate, appeared on behalf of the respondent No. 1. Their arguments were heard and the record perused with their help.

5. The learned counsel for the petitioners argued that the two Courts below were wrong in applying Article 120 of the Limitation Act to the case. He argued that the case was governed by Article 44 of the Limitation Act and since the suit was not instituted by the plaintiff‑respondent No. 1 within three years after becoming major, it was hit by limitation and should have been dismissed. Developing his arguments he further argued that the transfer by the father, who is a legal guardian of the property of his minor son, is void able and not void ab intio and that therefore the suit for the cancellation of such transfer is required to be instituted by the minor son within three years after attaining majority under Article 44 aforesaid. He, therefore, suggested that the findings of the two Courts below on issue No. 2 are incorrect and may be reversed, and consequently the suit dismissed. On this point he relied on the case of Labha Mal and others v. Malak Ram and another (A I R 1925 Lah. 619(2)) and the case of Khushya v. Faiz Muhammad (A I R 1928 Lah. 115).

6. The learned counsel for the petitioners next argued that in case his aforesaid arguments do not find favour wit; the Court, his clients are entitled to the return of the amount paid by them to the plaintiff‑respondent No. 1 as sale consideration of the suit land. In this regard he also suggested that since on this point there is a single Bench decision of this Court in R. S. A. No. 187 of 1968, decided on the 6th March, 1974, holding a contrary view, the matter may be referred to the Division Bench for decision.

7. The learned counsel for the respondent No. 1, however, contended that Article 44 of the Limitation Act was not applicable to the case and the findings of the two Courts below on issue No. 2 are correct. He argued that the disputed sales took place during the minority of the respondent No. 1 and the so‑called power of attorney in favour of Abdur Rehman, the father of respondent No. 1, on the basis of which the disputed sales were effected, was also executed without the knowledge and consent of the respondent No. 1 when he was a minor. 'The sale transactions finalised on‑ the basis of such power of attorney, he maintained, were, therefore, void ab initio and not voidable, as suggested by the learned counsel for the petitioners. He further agreed that the disputed sales were not transacted by Abdur Rehman in his capacity as legal guardian of the property of the respondent No. 1 and as such, the argument of the learned counsel on the opposite side that the sale transaction were voidable was without substance. He next argued that the petitioners could not claim the return of the sale consideration alleged to have been paid by them, for it has not been proved in evidence that any sale con sideration was paid by them to the respondent No. 1 directly or to anyone else legally entitled to receive the same on his behalf. He relied on the Full Bench authority of the Allahabad High Court in Ajudhiya Prashad and another v. Chandan Lal and another (A I R 1937 All. 610) and the judgment of this Court in R. S. A. No. 187 of 1968, referred to above.

8. The case of the petitioners as set up at the trial was that the suit land was transferred in their favour by Abdur Rehman, the attorney of the respon dent No. 1, with the consent of the respondent No. 1, who at the relevant time was major. It was not the case of the petitioners before the trial Court that the disputed sales were effected by the father of the respondent No. 1 in his capacity as legal guardian of the property of the minor, in which capacity he could make the sales provided the conditions laid down in the personal law were satisfied. No issue was therefore, framed and no evidence was led by the parties on this point at tile trial. It was also not urged before the learned lower appellate. Court that the sale transactions were effected by the A father of the plaintiff‑respondent No. 1 in his capacity as legal guardian of the1 property of the minor. At this stage, therefore, the learned counsel for the petitioners cannot be permitted to urge a new ground. Moreso, when respec ting such ground there is neither an issue nor any evidence on the record. He cannot, therefore, argue that the sale transaction were in fact effected by the legal guardian of the plaintiff‑respondent No. 1 and as such, were voidable and not void ab initio. Once this argument is kept out of consideration, the argument of the learned counsel for the petitioners that Article 44 of they Limitation Act was applicable to the case automatically fails. The Lahore cases relied upon by him are, therefore, inapplicable to the facts of this case.

9. There are concurrent findings of the two Courts below on the fact that the respondent No. 1 was minor at the time when the transactions were Affected. These findings are based on the proper appraisal of the evidence brought on the record and no misreading or non‑reading of evidence by the Courts has been urged before me. Such findings are, therefore, unassailable in revision. The sale transactions were effected by Abdur Rehman acting as attorney of the respondent No. 1. The two Courts below have also held after proper appraisal of the evidence brought on record, that the respondent No. 1 was minor at the time when the power of attorney was allegedly executed by him. Any agreement or authorisation by the respondent No. 1 in favour of Abdur Rehman was, therefore, void ab initio, did not even require cancellation and could not confer any power or authority on the said Abdur Rehman to transfer the land of the respondent No. 1 in favour of the present petitioners. The sale mutations which were got attested by the said Abdur Rehman were, therefore, of no legal effect end could not affect the ownership and possessory right of the respondent No. 1. The mere fact that the respondent No. 1 had misrepresented himself as major at the time of the execution and the registration of the so‑called power of attorney would no work as estoppel against the respondent No. 1, who has even not accepted that he bad appeared in the Registration Office for the registration of the said power of attorney. The findings of the two Courts below on this point are un assailable in revision.

10. The two Courts below have also held that the disputed sales were without consideration. This decision was arrived at because there was no cogent evidence on the record to show that any sale consideration was either received by the respondent No. 1 himself or by any one else legally entitled to receive the same on his behalf. Such findings, relating as they do to question of fact, cannot be disturbed in revision. As to the question whether the decision of this Court in R. S. A. No. 187 of 1969, decided on the 6th March, 1974, lays down the correct law, it can be taken up for determina tion in any other appropriate case.

11. Before taking leave of the case, I would like to point out that both the Courts below were wrong in applying Article 120 of the Limitation Act to this case. Article 44 of the Limitation Act, as held, was not applicable to the case. It was in fact Article 144 of the Limitation Act which was applic able to the case because the possession was hostile and adverse to the respon dent No. 1. The suit instituted by him on 24‑2‑1971 was well within time.

12. There being no merit in this revision petition, it is hereby dismissed. In view of the nature of the case, however, I leave the parties to bear their own costs.

S. A. H. Revision dismissed.

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