2015 PLP 135 (YLR)

SHAKEEL AHMED BALOCH, J.

This judgment disposes of Civil Revision No.12/2010 filed by the petitioner (plaintiff) against the judgment and decree dated 31st October 2008 (hereinafter "the impugned judgment") passed by learned Qazi Turbat (hereinafter "the trial Court") and against the judgment and decree dated 13th October 2009 (hereinafter "the impugned judgment") passed by the learned Majlis-e-Shoora Mekran Division at Turbat (hereinafter "the appellate Court"), whereby the suit and appeal filed by the petitioner was dismissed.

2. Facts of the case are that plaintiff filed a suit for declaration, permanent injunction, cancellation of Mutation No.1 and for restoration of previous original abstract Khewat and Khatooni No.29/29, Khasra No.197, measuring 125 Rods 39 Poles, Mouza Muhammad Aslam Bazzar Turbat, (hereinafter referred as, "the suit property"), description whereof is East land of Ahmed, West land of Barkat, North Mountain and South Road. It was averred in the plaint that the suit property was measured and lastly attested in the year 1992 and the same was entered by the Revenue Department Turbat in the name of petitioner hearing Khewat/Khatooni No.29/29, Khasra No.197. It is further stated in the plaint that in the month of December 2007 the respondent No.1 along with a Patwari was illegally carrying out the demarcation of the property, hence the petitioner stopped him and inquired from him as to why he is carrying out demarcation of suit property, as it belongs to him, but the respondent No.1 claimed the ownership of suit property and stated that the mutation was also on the name of the respondent, but due to inadvertence the same was entered in the name of the petitioner in the year 1992 and further stated that according to Patwari the suit land belongs to respondent No.1. Hence, in such circumstances the petitioner approached the settlement department Turbat, from where it came into the knowledge of the petitioner that the respondent No.1 with the connivance of Revenue Department has got mutated the suit property in his name, whereas to the contrary the plaintiff is in possession of the suit property and the basic Khatooni has also entered in his name. Hence, the instant suit was filed by the petitioner by assessing the valuation of the same as Rs.2250000 and prayed for restraining the respondent No.1 from interference, cancellation of mutation entries in the name of respondent No.1 and restoration of earlier mutations in the name of the petitioner.

3. The suit was contested by the respondent No.1 by filing written statement, whereby he raised certain legal and factual grounds regarding non-maintainability of the suit on the ground that no requisite court-fee has been appended on the plaint; that the subject assertions and prayer clause of the plaint are contradictory to each other; wrongly mentioned the description of suit property; that the suit property were wrongly entered in the name of petitioner in the revenue record, hence the respondent No.1 filed an appeal bearing No.271/1992 before the Collector Turbat under section 161 of Land Revenue Act, and on service of notice, the petitioner made his appearance on 5th July 1992 and attested the contents of appeal in writing that the suit property has wrongly been mentioned in his name, whereas the actual owner of the suit property is the respondent No.1, hence on the said date appeal was accepted and the suit property was transferred in the name of respondent No.1 on 6th July 1992, hence the suit is hit by the Law of Estoppel. It was further averred that about 10/12 houses exist over the said property and the respondent No.1 along with his family is residing over the suit property and the said fact is in the knowledge of the respondent No.1, therefore, the suit is barred by time. Lastly, the respondent No.1 prayed for dismissal of suit. The respondents Nos.2 to 6 being the official respondents also contested the suit and supported the version of respondent No.1.

4. After framing of issues, at the trial the petitioner produced two witnesses and also recorded his own statement, whereas in rebuttal the respondent only recorded his own statement. Hence, on conclusion of trial, arguments were heard and the learned trial Court dismissed the suit filed by the petitioner, vide judgment and decree dated 31st October, 2008, against which an appeal was preferred before the appellate Court i.e. Majlis-e-Shoora Makran at Turbat, which was also dismissed, vide judgement and decree dated 31st October, 2008. Whereafter, instant revision was filed.

5. Learned counsel for the petitioner stated that the impugned judgments and decrees are result of misreading and non-reading of material available on record; that both the concurrent findings are suffering from illegalities and irregularities; that in such like cases limitation runs from the date of knowledge, hence the suit was within time; that since the suit property is in possession of petitioner, hence no maximum court-fee was required to be appended with the plaint.

6. Learned counsel for respondents stated that there are concurrent findings of courts below in favour of the respondent No.1 as he has succeeded in proving the ownership and possession over the property; that no illegality or irregularity has been committed by the courts below while decreeing the suit and dismissing the appeal as the same are based on proper appraisal of material available on record.

7. Heard the learned counsel and perused the available record. Perusal of record reveals that initially the suit property was entered in the name of petitioner in the year 1992 at the time of settlement, but since the said entries were wrongly recorded in the name of the petitioner, therefore, the respondent No.1 filed an appeal under section 161 of Land Revenue Act before Settlement Officer/Collector Mekran Division at Turbat and the petitioner on service of notice made his appearance and in writing he admitted the fact that he does not own the property bearing Khatooni No.29/29, Khasra No.197 rather the same belongs to the respondent No.1, hence the Collector Turbat on the basis of statement made by the petitioner cancelled the same and ordered for making entries in the name of the respondent No.1. Admittedly, after passing of such order by the Collector the petitioner kept silent for more than 15/16 years as he has not challenged the order of the Settlement Officer, which otherwise was a consent order, hence at this juncture the respondent No.1 is estopped from raising this point. It is established principle of law that once a party takes a position in the matter before the Court of competent jurisdiction, then it cannot be changed and deviate from its stance to adopt a fresh position on the same subject matter. Reliance in this regard is placed on the case of Mst. Attiqa Begum v. Muhammad Fayyaz Khan, 2013 MLD

978. Relevant portion thereof is reproduced below:-- "It is established principle of law that once a party takes a position in the matter strongly before the Court of competent jurisdiction, then it cannot change and deviate from its stance to adopt a fresh position on the same subject matter."

8. Admittedly, the matter has finally been decided by the Collector on the basis of consent given by the petitioner, who at the relevant time admitted the mentioning of wrong entries in his name in respect of land, which otherwise was owned by the respondent No.1, hence initiation of fresh proceedings after considerable delay in respect of same subject matter and between the same parties hit by the principle of res judicata, as earlier in the first round of litigation, the question of ownership and possession has been decided by the Settlement Officer/Collector having competent jurisdiction, thus same cannot be re-opened afresh by any of the parties. The principle of res judicata is based on the principle that there must be an end of the litigation and the parties may not be vexed twice for the same subject matter in the same cause of action. The Hon'ble Supreme Court of Pakistan has elaborated the meaning of res judicata in the case titled Government of the State of Jammu and Kashmir and another v. Kashmir Timber Corporation, (PLD 1979 SC( AJ&K) 139), in the following terms:-- "What is res judicata? A final judicial decision of a Court of competent jurisdiction, once pronounced between parties litigant, cannot be contradicted by any one, as against any other of such parties, in any subsequent litigation between the same parties, respecting the same subject-matter. It is founded on the principle that there should be an end to the litigation as to any issue between the same parties when once that issue has been directly and substantially determined between them by a Court of competent jurisdiction. It bars fresh litigation at the outset. Res judicata not only ousts the jurisdiction of the Court, but a person cannot be heard to say the same thing twice over, the reason being that a person cannot be harassed again and again upon the same question. A judgment delivered by a Court of competent jurisdiction operates as a bar as regards all findings which re essential to sustain the judgment."

9. The principle of res judicata is based on the principle that there must be an end to the litigation and the parties may not be vaxed twice for the same subject matter. It is well settled principal of law that once the matter is decided by the competent Court of law cannot be re-opened, otherwise it leads to anamolous situation and there would be no end to the litigation. Reliance in this regard is placed on the case of Mst. Attiqa Begum v. Muhammad Fayyaz Khan, 2013 MLD 978.

10. As discussed above, the Collector has finally decided the matter vide order dated 5th July 1992 in presence of petitioner as the petitioner in writing has admitted the recording of wrong entries in his name in respect of land owned and possessed by the respondent No.1, coupled with the fact that about 10/12 houses exist over the suit property, such fact was also admitted in his cross-examination by P.W.1 Obaidullah Son of Naimatullah, in the following terms:--

11. Record reflects that the petitioner is permanent resident of the vicinity and it was in his knowledge that the houses belonging to the family of respondent No.1 exist on the suit land coupled with the fact that the Collector in his presence has ordered for effecting mutation entries in the name of respondent No.1, therefore, it has been established that the petitioner neither is in physical possession of the suit property nor the mutation entries are recorded in his name, but just to avoid affixation of court-fee he has made wrong statement with regard to possession of suit land, hence admittedly the petitioner's suit is also barred by limitation and is also not maintainable under the provisions of the Court Fees Act, 1870 as a plaint cannot be treated as properly presented as long as proper court-fee is not paid. Even otherwise, the petitioner himself mentioned the valuation of the suit property as Rs.2,25,000, therefore, he ought to have affixed the ad valorem court-fee but he has failed to comply with the provisions of Court Fees Act, 1870.

12. It has been established from the above discussion, that the petitioner has filed a time barred suit as the same has been instituted after 16/17 years of cancellation of mutation entries in his name and even the order of the Collector Makran at Turbat was not assailed before proper forum and competent jurisdiction. Hence considering all the these facts and circumstances of the case the learned courts below have rightly dismissed the suit and appeal of the petitioner. Perusal of both the impugned judgments and decree would disclose the fact that the petitioner has failed to prove his claim. The scope of this Court while exercising power under section 115, C.P.C. is very limited and such powers can only be used, if law point is raised. The petitioner has failed to point out any illegality or irregularity in the impugned judgments, warranting interference by this Court in the concurrent findings of fact arrived at by the Courts below. Thus in view of what has been discussed herein above, I am not inclined to accept the petition, as such, the same is dismissed, with no orders as to cost. AG/60/Bal. Revision dismissed.