2000 PLP 1279 (SCMR)

CH. MUHAMMAD ARIF, J.

In this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 a challenge has been made to judgment dated 8-5-1997 passed by a learned Judge in Chambers of the Lahore High Court, Lahore in Writ Petition No.4700 of 1997 whereby, present petitioners' challenge to judgment and decree dated 4-12-1996 of the learned District Judge, Faisalabad in revision petition filed by the private respondents herein against the order of Civil Judge, Faisalabad dated 9-6-1996 dismissing their application under Order VII, rule 11, C.P.C. was upheld with the observations that above provisions are not exhaustive and that the Court has inherent jurisdiction to reject a plaint if it feels that its process is being misused, with reference to Muhammad Akhtar etc. v. Abdul Hadi etc. 1981 SCMR 878, Syed Shahzad Hussain and 4 others v. Mst: Hajira .Bibi. and others PLD 1990 Lah. 222), Muhammad Saeed v. Mst. Nahid Shagufta and 3 others PLD 1990 Lah. 467 and Mst. Karim.Bibi and others v. Zubair and others 1993 SCMR 2039).

2. Petitioners herein had brought the suit of which the present proceedings have arisen seeking a declaration to the effect that as legal heirs and successors-in-interest of Col. Altaf Ali Khan, real brother of Col. Ghulam Jelani Khan, they were entitled to 1/3rd share in the inheritance of the latter and that two mutations bearing Nos. 374 and 450 attested on 4-12-1930/26-8-1931 and 22-3-1939/7-10-1939, respectively, depriving their predecessor of the inheritance. in- question was fraudulent, illegal, void and ineffective against their rights on 14-4-1996. The prayer clause in the above suit, after affecting amendments in the plaint, reads thus:-- "Suit for a declaration that the plaintiffs are entitled to get 1/3rd (and are owners to the extent of 1/3rd of the suit-land in accordance with their legal share) as descendants of Col. Altaf Ali Khan (the real brother of Col. Ghulam Jilani Khan, the predecessor-in-interest of the plaintiffs) and that of Mst. Amrao Begum out of the suit land comprising one Lal Kothi situate, opposite to the office of Telephone Exchange, comprising Khasra Nb.1010 of Chak No. 212/RB, Tehsil and District Faisalabad and that the landed property comprising Killas Nos. l to 25 of Square No. 32, Killas Nos. l to 25 of Square No.33, Killas Nos.1 to 25 of Square No.34, Killas Nos.1 to 25 of Square No.39, Killas Nos.l to 25 of Square No.40, Killas Nos. l to 25 of Square No.41, Killas Nos. l to 19, 20/1, 20/2, 21, 22, 23/1, 23/2, 24 and 25 of Square No.42, Killas Nos. l to 25 of Square No.43, Killas Nos. l to 25 of Square No. 51, Killas Nos. l to 24 of Square No.52, Killas Nos. l to 21, 23 to 25 of Square No.53, Killas Nos. l to 25 of Square No.54, Killas Nos. l to 25 of Square No.59, Killas Nos.10, 11, 19, 2, 22 of Square No.61, Killas Nos.1 to 25 of Square No.62, Killas Nos. 1 to 8, 17. to 20, 22, 225 of Square No.63, Killa No.21 of Square No.64, Killas Nos. 1, 10, 11, 19, 222 of Square No.65, Killas Nos.l to 25 of Square No.66, Killas Nos. l to 25 of Square No.67, Killas Nos. 1 to 25 of Square No.68, Killas Nos. l to 12, 14, 217, 20, 223 and 25 of Square Nos.69, Killas Nos. l to 3, 8 to 14, 18 to 25 of Square No. 17 and Killa No.21 of Square No.71, situate in Chak No.220/RB, Tehsil and District Faisalabad and the subsequent order dated 22-3-1939 and 7-10-1939 passed on Mutation No.450 of Chak No.220/RB, Tehsil and District Faisalabad whereby the inheritance of the predecessors-in-interest of the plaintiffs has been wrongly, fraudulently and illegally transferred in the names of the predecessors-in-interest of . defendants Nos. l to 5, are illegal, mollified, collusive, fraudulent, unjustified, null and void, without jurisdiction, ineffective and inoperative against the rights of plaintiffs. Similarly, the orders regarding the development of Lal Kothi (Khasra No.1010 of Chak No.212/RB, Tehsil Faisalabad) from the name of Mst. Amrao Begum in the name of Muhammad Hayat Khan, the predecessor-in-interest of defendants Nos.1 to 5 is also illegal, fraudulent, void and collusive, unjustified, without jurisdiction and void, ineffective and inoperative against the rights of plaintiffs, for a declaration that the order passed subsequent to the abovesaid orders are also based on fraud and are illegal, void, collusive, non-existent, not maintainable and hence inoperative against the rights of the plaintiffs, with a consequential relief restraining the defendants Nos. l to 5 and 7 from further alienating and disposing of the suit property, with a mandatory injunction to defendant No.7 to correct the Revenue Record accordingly declaring the plaintiffs as owners to the extent of 1/3rd of the suit land in accordance with their legal shares."

3. It would be to the point if the pedigree-table regarding the parties to this litigation and their predecessors-in-interest is reproduced from para. 1 of the amended plaint:--

4. It is common ground between the parties that the plaintiffs petitioners herein applied for a temporary injunction, from the trial Court under Order XXXIX, rules 1 and 2 and section 151, C.P.C. and, after filing written statement in the suit, defendants/private-respondents herein filed an application under Order VII, rule 11, C.P.C., seeking rejection of the plaint on the ground that the suit was frivolous and vexatious on the face of it. According to them, the suit was beyond time and, according, to the pleadings of the plaintiffs themselves, the inheritance of Altaf Ali Khan already stood decided more than 50 years ago and the same could nor be reopened.

5. Petitioners-plaintiffs' application for temporary injunction as also the application of the defendants/private-respondents were taken up together by the trial Court and were rejected on 9-6-1997 holding respectively (1) that though the petitioners were not entitled to the grant of temporary injunction; (2) yet the plaint could not be rejected as it can't be held that the plaintiffs had. no cause of action:

6. The defendants/respondents herein challenged the refusal of the trial Court to reject the plaint through a revision petition and the plaintiffs petitioners filed an appeal assailing that part of the order of .the trial Court through which they were refused temporary injunction. Both these matters were heard together by the then learned District Judge, Faisalabad who. on 4-12-1996, ruled that (1) the suit of the plaintiffs-petitioners was barred by time and that (2) the question of inheritance stood determined in the previous round of litigation between the predecessors-in-interest of the parties and as such the same could not be re-agitated. The result was that private respondents' application for rejection of plaint was allowed and petitioners' suit was dismissed.

7. The petitioners challenged the vires of the judgment and decree dated 4-12-1996 passed by the-then learned District Judge, Faisalabad through Writ Petition 'No.470. of 1997. The learned Judgc in Chambers noticed and considered the respective pleas of the parties beforc him and came to the conclusion that the learned District Judge was quite right in holding that (1) the suit on the face of the averments made in'the plaint itself was clearly barred by time and (2) that the same was frivolous and vexatious and was a belated attempt on the part of the petitioners to reopen the question of inheritance of Col. Altaf Ali Khan and'(3) that the suit was nothing but an abuse of the process of the Court. The arguments on behalf of the petitioners that they were not aware of the fraud committed by the predecessor of private-respondents herein and that it came to their knowledge, for the first time, in the year 1992 with the result that the suit instituted on 14-4-1996 was within time, were repelled with the following observations:-- ........................................ The right which the petitioners claim.in the present suit is through Ahmed Ali Khan and Nazir Ali Khan, who according to the averments were not only aware of the sanction of the mutations but had agitated the matter before the Revenue Officers before partition. At least from that date the limitation started running and the suit which was filed in the year 1996, on the face of it, was hopelessly barred by time. The petitioners cannot also profess ignorance of the two mutations in view of the previous litigation to which reference will be presently made. The learned District Judge was, therefore, justified in holding that on the basis of the averments made in the plaint itself the suit was barred by limitation. The other conclusion arrived at by the learned District Judge that the suit was frivolous and vexatious is equally unexceptionable. "

12. The petitioners claim to be successor in interest of Col. Ghulam Jilani Khan, a brother of Col. Altaf Ali Khan who had died in the year 1906. Their case is that their predecessors namely Amir Ali Khan and Ahmed Ali Khan were sons of Col. Ghulam Jilani Khan from Mgt. Khurshid Begum. The learned counsel for respondents Nos.2 to 6 have drawn the attention of this Court to various documents to show that this controversy already stands resolved in the previous litigation between the predecessors of the parties. The learned District Judge while so holding had relied upon the judgment of the learned District Judge, Ludhiana, dated 11-6-1940 which shows that Mgt. Khurshid Begum was not the legally wedded wife of Col. Ghulam Jilani Khan and that Ahmed Ali Khan and Amir Ali Khan were his illegitimate sons. "

13. There is another judgment which was delivered by the Chief Court of Punjab in R.F.A. No.245 of 1910, according to which Amir Ali Khan, the grandfather of the petitioners had admitted that he was not legitimate son of Col. Ghulam Jilani Khan and his mother Mgt.- Khurshid Begum was not the legally wedded wife of Col. Ghulam Jilani Khan. "

14. It is also to be seen that it was submitted before the learned District Judge that Col. Altaf Ali Khan had died on 8-5-1930 while his brother Col. Ghulam Jilani Khan through whom the petitioners claim inheritance died in 1906 much before Col. Altaf Ali Khan. As Col. Ghulam Jilani Khan had, died before Col. Altaf Ali Khan, the question of his inheriting the estate of Col. Altaf Ali Khan did not arise. The suit was, therefore, not only frivolous and vexatious but was an abuse of the process of the Court. " As regards the plea taken by and on behalf of the petitioners before the High Court that for the purpose of Order VII; rule .11, C.P.C. generally the averments in the plaint alone are to be considered and the defence set up from the material produced by the opposite side has to be ignored, it was held that the same was not of universal application and "...in a given case the Court on the basis of undoubted material comes to the conclusion that the suit was frivolous and vexatious and protracted trial would be nothing but would prolongation of the agony of the parties and would also an abuse of the process of the Court, the evil must be put to an end straightaway." (Underlining is for emphasis). As regards the plea of the petitioner-side to the effect that under Order VII, rule 11, C.P.C. the suit could 'not be dismissed and that at the most the complaint could be rejected, it was ruled that even if the objection is correct, the same will not make any difference in that the other side did not object to the rejection of the. plaint by substituting the 'dismissal of the suit' with 'rejection of the plaint', which was gone ahead. Hence this petition.

8. Mr. Ch. Mushtaq Ahmed Khan, learned Senior Advocate Supreme Court appearing in support of this petition, has referred to Ghulam Ali v. Asmat Ullah and another (1990 SCMR 1630) in support of his contention that the assertions made in the plaint had to be seen for the purposes of determining whether the plaint is liable to be rejected or not. The averments in the plaint here did disclose sufficient cause of action to proceed further. He was also critical of the impugned judgment upholding the order of the learned District Judge . in that regard, for the reason that lack of proof or weakness of proof could not be equated with a justification for coming to the conclusion that no cause of action has been shown in the plaint. It was next contended that co-sharer/s can't be non-suited in that the question of limitation in such cases pales out in significance. He relied upon Ghulam Ali and 2 others v. Mgt. Ghulam Sarwar Naqvi (PLD 1990 SC 1) in support of his plea that co-sharers/co-owners are not obliged to file a suit for declaration to the effect that a mutation had wrongly been sanctioned. Filing a suit for declaration due to denial of the rights of co-sharers, would be within time and the Revenue Authorities, on success of such suit, would be required by law to correct the wrong mutation. He also relied upon Mgt. Fazal Jan and 2 others v. Roshan Din and 2 others, (PLD 1992 SC 811) wherein it was ruled that: "....The only question which remains to be decided is one of limitation. According to the learned counsel, the period of limitation would be 12 years under Article 141 after the initial disposal of the property by Mgt. Piari by way of gift in 1962. And because the suit was filed in 1973 within the period of 12 years, therefore, it was within limitation. This reasoning in so far as it goes does resolve the question of limitation, but as recently held by this Court in the case of Ghulam Ali and others v. Mgt. Ghulam Sarwar Nagvi PLD 1990 SC 1, it was not necessary for the appellant to have sought the annulment of the mutation concerned. The cause of action arose in her favour repeatedly when her inheritance right was denied or usurped by the respondents side at various stages. Accordin Iy the appellant's suit was not hit by the bar of limitation." (Underlining is for emphasis). He concluded his arguments by placing reliance upon this Court's judgment reported as ,Mst. Namdara and 3 others v. Mst. Sahibzada and `2 others (1998 SCMR 996) to contend that it is trite law that mere omission of the name of a female proprietor in the Revenue Record and even attestation of a wrong mutation confer no right in property as Revenue Record is maintained only for the purpose of ensuring realisation of Land Revenue "...The purpose and legal nature of the entries incorporated in the Revenue Record was highlighted by the Privy Council in (Thakur) Nirman Singh and other v. Thakur Lal Rundra Partab Narian Singh and others (AIR 1926 Privy Council 100). The superior Courts keeping in view the true nature of the rights vesting on the heirs automatically on the death of a Muslim under the Shariah in the estate left by the deceased, have held that a co-sharer hold the property for and on behalf of all the co-sharers and any adverse entry in the Revenue Record and mere non-participation in the profits of the property would not amount to ouster of a co-sharer. In this context it was held that a brother cannot legally claim adverse possession against his sister and muchless "ouster". See cases of Ghulam Ali (supra) and Mst. Fazal Jan (Supra)." Underlining is for emphasis.

9. Contrarily, Mr. Jariullah Khan, learned Advocate Supreme Court appearing on behalf of the private-respondents/caveators has tried to support the impugned judgment with the submission that the learned District Judge and the learned Judge in Chambers had reached the right conclusion that the predecessor of the petitioners had failed to succeed in his efforts in the past to establish his alleged claim to inheritance and that the petitioners cannot lay any claim to the same now and that, too, after the lapse of more than half a century.

10. There is no need for entering into a detailed discussion of the respective pleas of the parties in this litigation. Sufficient to say that the averments made in the plaint and the material brought on the record by the petitioners/plaintiffs did make out a case for further proceeding with the plaint/suit. The initial, onus to prove fraud etc. having been perpetrated by any side in relation to 'the civil rights of citizens, remains on the plaintiff/party alleging such a state of affairs. The snapping of this tie, which. makes a litigation qualified for being proceeded with for trial in relation to the respective rights of inheritance of people similarly placed as the private parties herein, cannot be countenanced in law. Moreover, the question with regard to the suit being barred by time or not also required production of evidence by the parties in the suit. We are of the view that the pleadings of the parties should have been attended to in accordance with the normal procedure relating to trial of suits/disputes after full dressed arguments in line with the oral and documentary evidence brought on the record. This having not been done and the entire litigation having taken a different turn after the submission of their written statement/s by the defendants in the case, the defendants-side made an application under Order VII, rule 11, C.P.C. and the same was taken up alongside the earlier application of the plaintiffs-side under Order XXXIX, rules 1 and 2 and section 151, C.P.C. A lot of time was consumed in having the dispute resolved at that interim stage by (1) the trial Court., (2) the appellate/revisional forum and (3) the High Court in Writ Petition No.4700 of 1997.

11. For all that has gone before, the instant petition is converted into appeal and, allowing the same, the matter is remanded to the trial Court for its hearing after framing appropriate issues and allowing opportunity to the parties to lead whatever evidence they want to in the cause. No costs. M.B.A./P-4/S Case remanded.