2022 PLP 873 (CLC)

MUHAMMAD NAEEM ANWAR, J.

Petitioners have questioned the validity and correctness of the judgment and order of learned Additional District Judge-II, Lakki Marwat, whereby their appeal was dismissed consequently the judgment and order of learned trial court dated 05.01.2017 was maintained.

2. Facts forming the back ground of the instant petition are that petitioners filed a suit for declaration to the effect that being the legal heirs of Sardar Ali Shah and Said Badshah who are successors of Mst. Gul Adama, on the strength of Mutation No. 322 attested on 24.07.1998 through decree of court in Civil Suits Nos. 142/13 and 145/13 of learned Additional Civil Judge, Lakki Marwat dated 15.03.1997, are owner of the property bearing Khasras Nos. 51, 75, 77, 86, 89, 49, 48, 76, 78, 53, 50, 52, 81, 87, 88, 85 (16 in number) of the revenue estate of Langar Maidad Khel Tehsil Naurang District Lakki Marwat, but non incorporation of their names in periodical record is wrong, against the facts, collusive and mala fide which is inoperative upon their rights. Suit was contested by the respondents through their written statement along with an application under Order VII, Rule 11 of the Code of Civil Procedure, 1908. The application under Order VII, Rule 11 of the Code of Civil Procedure, 1908 was allowed and plaint was rejected. The petitioners filed an appeal but their appeal too was dismissed through impugned judgment and decree, hence this petition under section 115 of the Code of Civil Procedure, 1908. C. M. No. 194-B/2021 and C.M. No.227-B/2021. Through these civil miscellaneous applications, both the parties have sought permission for placing on file the copies of revenue record which as per their contention are necessary for just decision of the instant petition. In view of submission of the learned counsel for the parties qua the nature of the documents appended with the applications, i.e., Fard-e-Jamabandi for the years 1997-98, 2001-02, 2005-06, 2009-10, 2013-14, Mutation No. 322, both these CMs are allowed and the documents appended therewith are hereby considered as part and parcel of the instant petition.

3. Arguments heard and record perused.

4. It appears from the contents of the plaint that petitioners have made the basis for their suit, the Mutation No. 322 dated 24.07.1998 (reviewed on 22.12.1998) by alleging therein that on the strength of decision in Civil Appeal Nos. 142/13 and 143/13 decided on 15.03.1997, mutation No. 322 was attested but it was not incorporated in the Jamabandi. The petitioners are legal heirs of Mst. Gul Adama whose name was entered in the revenue papers while preparing Jamabandi for the years 2001- 02 but it was cancelled. A prayer for injunction was also sought that respondents be restrained from making any interference in their possession, alteration in the nature of the property and its alienation through any means in favour of anyone else. Both the parties have filed the copies of revenue papers but even then, for determination as to whether for non-incorporation of Mutation No. 322 in revenue paper despite attestation of Mutation No.322, could it be judged by the learned trial court without recording of evidence being complicated question of law and fact, not only the parties were heard at length on four different dates, i.e., 15.09.2021, 11.11.2021, 23 11.2021 and 13.12.2021 but ADK was also summoned along with record. It was not in dispute that Mst. Gul Adama was not the legal heir of Ghulam Shah to whom the property was transferred from Azeem on whose death in the year 1926. It is also not in dispute that Ghulam Shah pre deceased his father and after decision in Civil Suit No. 153/1 Mst. Gul Adama alias Gul Andama, Mst. Gul Mewa and Mst. Halima were held entitled in the legacy of their predecessor to the extent of 2/3rd share. Suit No. 153/1 was filed on 10.04.1983 and decided on 16.05.1990 by the then Additional Civil Judge, Lakki. It appears from record that predecessor-in-interest of the petitioners along with Mst. Mosam Jana alias Osam Jana daughter of Ghulam Shah widow of Sardar Ali instituted suit No. 142/1 on 28.09.1985 wherein, after submission of written statement by the then defendants, an issue was framed to the effect that "whether the suit is hit by the doctrine of res subjudice? if so, its effect." Both the suits, i.e., Nos. 153/1 of 1983 and 142/1 of 1985 were decided by the learned Additional Civil Judge (Mr. Hujam Khan), Lakki Marwat as then he was, on 16.05.1990, whereby in suit No. 153/1 it was held "in consonance with my above discussion, I decree the case and declare the plaintiff and defendants Nos. 7 to 10 owners of 2/3rd share inherited by Mst. Gul Adama alials Gul Andama, Mst. Gul Mewa and Mst. Halima by virtue of inheritance mutation No. 80 re-attested on 05.03.1947 and order that the revenue record be corrected so as to confirm to the mutation as re-attested." Likewise, the suit of predecessor-in-interest of the present petitioners, i.e., Sardar Ali Shah to the extent of issue No.3, it was decided as "The defendants took in their written statement the plea that suit was hit by doctrine of res subjudice but point was not pressed at that time and the suit proceeded on. At the time of institution of this suit, the suit instituted by Nabat Shah against the plaintiffs wherein the parties and the property in dispute were the same was pending. Therefore, this suit is hit by the doctrine of res subjudice." Two separate appeals were filed and were dismissed by the learned District Judge, Lakki Marwat dated 15.03.1997 and against dismissal of appeals two separate revision petitions were filed, i.e., C.R No. 31/1997 and C.R No. 32/1997 which were decided through consolidated judgment by this court on 13.03.1998 by Mr. Justice Shah Jehan Khan Yousafzai, as then he was. In order to understand the controversy a pedigree table was reproduced in the judgment of this Court which is crucial for decision of the controversy in the instant petition as such the same is reproduced, as under:

5. Admittedly, Mst. Gul Adama (predecessor-in-interest of the parties) and Ghulam Shah were brother and sister and Osam Jana is the daughter of Ghulam Shah from his first wife. Likewise, Mst. Gul Adama died issueless whereas Mst. Halima and Mst. Gul Mewa were her uterine sisters falling in the category of sharer at Serial No. 11 of the table of sharer and as per Sharia 2/3rd share was devolved upon both of them equally. It is also not in dispute that Mehrab Shah son of Nizam Shah was brother of Azim Shah who was paternal uncle's son of Mst. Gul Adama and was alive at the time of death of Mst. Gul Adama as such remaining 1/3rd share was inherited by Mehrab Shah.

6. Intrinsically, grievance of the petitioners was that the name of their predecessor Mst. Gul Adama was incorporated in Jamabandi for the year 2001-02 but was cancelled later on and the substitution thereof was categorically mentioned in the first column of Jamabandi where except Mst Gul Adama all others were properly named. It is reflected from the decision of earlier suit that Mst. Gul Adama alias Gul Andama was not alive even at the time of decision of those suits, i.e., 16.05.1990 and in fact Mst. Gul Adama died in the year 1962, therefore, he was rightly not named/incorporated in the Jamabandi for the year 2001-02. Last column of Jamabandi appended with the application by the petitioners reflects that the reference of Mutation No. 322, which was confirmed from ADK present in the Court during hearing from record, and this has already been incorporated with determination of correct shares. Contents of the plaint demonstrate that the petitioners are legal heirs of Sardar Ali Shah who was the son of Mehrab Shah to whom 113rd share from the inheritance of Mst. Gul Adama as residuary was given. Apart from that, the judgment in Civil Suits Nos. 153 and 142 are self explanatory that predecessor-in-interest of the petitioners Sardar Ali Shah has filed the Suit No. 142/1 for declaration which was dismissed by the civil court on 16.05.1990 and the judgement and decree was maintained by this Court through the judgment in Civil Revision No. 31 of 1997 decided on 13.03.1998. The petitioners by their own conduct are stopped under the principle of estoppel by acquiescence in accordance with Article 114 of Qanun-e-Shahadat Order, 1984 which as per Osborn's dictionary "Acquiescence is a species of estoppel. An estoppel arises where the party aware of his rights sees other parties acting upon the mistaken notion of his rights. Injury accruing from one's acquiesces in another's action to his prejudice creates estoppel" The judgment in Civil Suit No.142/1 is an estoppel by record, to the effect that "where a judgement has been given by a competent court, and the effect of it is that the matters decided cannot be reopened by a person who is a party to the judgment or his representative. In India, principle of res judicata is applied to get the same effect". It is worth to mention that in the contents of plaint relationship of the petitioners with Mst. Gul Adama was nowhere mentioned nevertheless, after rejection of plaint when they have filed appeal, they have mentioned that Mst. Gul Adama was the widow of Mehrab Shah which fact is repelling to the judgment in C.R No. 31 of 1997 dated 13.03.1998 where Mst. Gul Adama was shown to be the daughter of Azim Shah from his first wife and Mehrab Shah was the son of Nizam Shah and the findings of this Court in C.R No. 31 of 1997 were not challenged before apex Court as such attained finality. It is by now well settled that judgment/order passed by the Court of competent jurisdiction, if not assailed in the higher forum shall attain finality, Reliance in this regard is placed on the cases reported as "Muhammad Aslam and 2 others v. Sved Muhammad Azeem Shah" (1996 SCMR 1862) and "Kanwal Nain v. Fateh Khan" (PLD 1983 SC 53).

7. Though ordinarily, intricate questions of law and facts cannot be resolved without recording of evidence but when a fact has already been established and resolved cannot be reagitated then of course on the basis of same cause of action which has earlier been alleged and decided by the Court to its logical conclusion, the institution of the fresh suit on the basis of same cause of action and trial of suit filed later on would be nothing but a futile exercise. The Supreme Court in Case titled "Raja Ali Shan v. Messrs Essem Hotel Limited and others" (2007 SCMR 741) has held that in view of the Order VII, Rule 11, C.P.C. it is the duty of the Court to reject the plaint if, on a perusal thereto, it appears that the suit is incompetent, the parties to the suit are at liberty to draw Courts' attention to the same by way of an application. The Court can, and, in most cases hear counsel on the point involved in the application meaning thereby that the Court is not only empowered but under obligation to reject the plaint, even without any application from a party, if the same is hit by any of the clauses mentioned under Rule XII of Order VII, C.P.C. Accordingly, when only one legal issue was involved which could have been resolved at the very initial stage of the suit, if the court ceased of the suit had attended to the plaint that would save the precious time of the court, the parties and their hard earned money on one hand and could achieve Goals of National Judicial Policy easily on the other, if the Trial Court would attend to the said observations. It is by now well-settled that incompetent, illegal, vexatious and frivolous suits must be buried at their inception, as the birth of those suits would not only prolong the agony of the parties but the wastage of precious time of the Courts as well. Fruitless and useless litigation must not be encouraged.

8. For the reasons discussed above, the instant petition has got no merits and both the learned courts below have rightly decided the fate of the suit instituted by the petitioners and petitioners have not been able either to prove contrary from record or an illegality in the impugned judgments or jurisdictional infirmity, therefore, this petition stands dismissed but with no order as to costs. ZH/7/P Revision dismissed.