2006 PLP 1649 (CLC)

MUZAFFAR ALI, J.

This 2nd appeal assails the judgment/decree dated 20-11-2002, passed by the learned District Judge, Skardu in C.F.A. No.26 of 1996 and judgment decree passed by learned Civil Judge, Skardu in Civil Suit No.30 of 1994, dated 20-4-1996. Fact of the case briefly are that the present appellants claimed 1/6th share being legal heirs of their mother Mst. Nurgis Baigum daughter of Raja Abdullah Khan from respondents Nos. 1 and 2 and also challenged the alienation of portion of land in favour of respondents Nos.3 to 30 vide, mutation numbers listed in the head note of the plaint by respondent No.1 and Fazil Ali Khan who was defendant No.2 in the plaint, but later on he passed away and his legal heirs have been impleaded in the appeal. In para. 1 of the plaint, the plaintiffs/appellants inserted the pedigree chart which is undisputed between the parties which apparents the mother of appellants in the list of the heirs of the late Raja Abdullah Khan along with the respondents Nos.1-2. The defendant No.2 admitted the averments of the plaint while defendant No.1 contested the same in his written statement, but an "Akrar Nama" has been presented before this Court, which reveals admission of the defendant No.1 also the other defendants/respondents denied the version of the plaintiffs/appellants. The learned Civil Judge framed 29 issues in the light of pleadings, and when the suit was fixed for plaintiff's evidence and the plaintiffs had produced P.Ws., the learned Civil Judge deviated from normal procedure and heard the parties on the issues of maintainability of the suit and application of Order II, rule 2, C.P.C. in the present suit and accordingly the learned Civil Judge dismissed the suit on 20-4-1996 as non-maintainable by considering it to be hit under Order II, rule 2 of C.P.C. the plaintiffs/appellants challenged the dismissal order/decree, dated 20-4-1996 before the learned District Judge, Skardu which met the same fate. Hence this appeal before this Court. I heard the arguments advanced by the learned counsel for the appellants and counsel for the respondents in detail and same may be summarized as such. (a) That, the learned counsel for the appellants urged that the present suit is based on a new cause of action and the cause of action in the previous suit was different. Hence Order II, rule 2, C.P.C. is not impediment for the present suit. (b) That previous Suit No.11/84 was not decided on merits and the plaintiffs had reserved their right to sue against the defendants 1 and 2 in respect of the remaining incestral properties of the parties situated in other villages and in this regard the learned counsel for the appellants referred a "note portion" in the plaint in the Suit No.11/84, wherein the plaintiffs had requested grant of permission from the Court to file a separate suit for other common properties belonging to plaintiffs and appellants Nos.1-2. (c) That the learned trial Court has drawn wrong inferences from the documents i.e. Exh.P.1, P.2 and P.3 in the present suit. Hence impugned judgment/decree passed by the learned trial Court is liable to be set aside. (d) That the respondents Nos.1, 2 have admitted the right of plaintiffs over the whole incestral property to the extent of their share in the previous suit as such Order II, rule 2, C.P.C. is not impediment in the way of subsequent suit. On the other hand the counsel for the respondents vehemently denied the above points and urged that. (a) The cause of action in both the above suits is same and the plaintiffs on their own accord have relinquished or omitted a main portion of their claim as such Order II, rule 2 is impediment legal in their way to sue for the remaining portion. (b) The counsel for the respondents rebutted the second point of the learned counsel for the appellants also and stated that, in previous suit the plaintiffs had neither reserved their right to sue subsequently in respect of the remaining portion of their hereditament nor they could reserve .the same under law. "The note portion" in this respect in the plaint was tampered one-after institution of the suit. (c) The learned counsel for the respondents denied the contention of the counsel for the appellant that, the trial Court has drawn wrong inferences from the documents i.e. Exh.P.1, P.2, and P.3 submitted in the present suit by the plaintiffs, and urged that the learned trial Court has drawn inference correctly in accordance with law. (d) That, the learned counsel for the respondents stated that in spite of the fact that in previous suit the plaintiffs had admitted the right of inheritance to the extent of 1/6th of their mother's share in whole of the property left by deceased Raja Abdullah Khan, but the plaintiffs/appellants failed to claim whole of their share in the hereditament in the Suit No.11/84, as such, the present suit is hit by Order II, rule 2, C.P.C. I considered the above points raised by both the learned counsel for the parties and also have gone through record of both the Suits Nos.11/84 and 30/94, wherein I observed that in the year 1984, the present plaintiffs filed Suit No.11/84 in the Civil Court Skardu against the present defendants claiming to be the legal heirs of Mst. Ntfrgis Baigum their deceased mother who was share-holder of the property situated in various villages of Rundu, left by her father, the plaintiffs instead of claiming entire share of their mother out of whole land, claimed share of their mother in only one portion of hereditament situated in village Mendi, in spite of admission made by the defendants Nos.1-2 through their written statement not only in respect of suit-land, but in respect of whole land. At this stage I deem it proper to reproduce the head note of the plaint under Suit NO.11/84 which is as under: Urdu Page 1652 The present suit was filed after laps of about ten years from the institution of previous suit, when the plaintiff's came to know about the sale transactions between the defendants Nos.1-2 and the remaining defendants, in respect of joint estate, claiming 1/6th share of their mother which was omitted in the previous Suit No.11/84 and also challenged the mutation numbers listed in the head note of the present suit. Keeping in view the above facts it may be said that, the points raised by the counsel for the appellants which have been inserted at pages Nos.2 and 3 of this judgment are devoid of substance and having no foundation in law for the reason that both the suits relate to the "Islamic principle of devolution" and the moment when the father of Mst. Nurgis Baigum died, the property left by him was "devolved"' into the legal heirs of him including Mst. Nurgis Baigum, mother of the plaintiffs and the movement when the mother of the plaintiffs passed away, her share in the whole of the movable and immovable property inherited by her was devolved upon the plaintiffs and the (sic) Movement when the mother of the plaintiffs passed away, her share in the whole of the movable and immovable property inherited by her was devolved upon the plaintiffs and the movement when plaintiffs felt that the other sharers of their mother are trying to deprive them from their right to the land, the cause of action and right to sue accrued to them in respect of whole hereditament, so they had not been prevented by anyone to file the previous Suit No.11/84 claiming entire share of their mother in respect of the whole property, but they voluntarily relinquished or omitted the same, therefore, the cause of action in both suits is same and one and no new cause of action for the present suit accrued to the plaintiffs. Hence the present suit is hit by Order II, rule 2, C.P.C. The learned counsel for the appellants again failed to substantiate the second point raised by him, the appellant No.1 admitted before the Court that, the "note" in the second page of the previous plaint was inserted by him after institution of the plaint before trial Court and the plaint was written by a solicitor named Abdul Samad. So the story of reservation of their' right to sue against the respondents Nos.1 and 2 in respect of the remaining property situated in other village apparently seems to be tampered with the plaint and even if the point is accepted to be true, the plaintiffs could not under law reserve the right to sue for such claim subsequently nor the Court can permit to bring a suit later on for the claim omitted or relinquished. The third point is also' without legal force, the trial Court has drawn very correct inference from the documents Exhs.P.1, P.2, and P.3. The another most important legal aspect of the case pertinent to discuss here is that, the application of Order II, rule 2, C.P.C. in the present suit means that, the plaintiffs are barred to institute the present suit and to seek remedy from the Civil Courts in respect of the claim omitted or relinquished in previous suit, but it does not mean to oust the plaintiffs from their right to the suit property and their right in respect of the land as-co-sharers subsists particularly when the defendants Nos.1-2 have admitted the same not only in the present suit, but in the previous Suit No.11/84 and otherwise too their right is established and in such circumstances of the case no declaratory decree requires to be obtained from Civil Courts. Section 42 of the Specific Relief Act postulates clearly "that a status or a right of a person to which the person is entitled, may file a suit against any person denying or interested to deny his title to such right and the Court may declare the person is so entitled". In the present case no person denies the right of the plaintiffs, therefore, the plaintiffs have merely been excluded from instituting a civil suit, but they are entitled to get partition of their mother's share from the other co-sharers with mutual consent or otherwise through an application under section 135, Land Revenue Act to the Collector and the Order II, rule 2, C.P:C. is not legal impediment in the way of remedy available to them in other laws. The above legal discussion reveals that, the right of the plaintiffs in respect of the 1/6th share of their mother is intact and the plaintiffs are admittedly the co-sharers of the whole property left by late Raja Abdullah Khan, then whether the other co-sharers (defendants Nos.1-2) are under law competent to sell some portion of undivided property and whether the sale transactions between defendants Nos.1-2 and remaining defendants in the suit are valid or not. In this respect the law relevant is section 44 of the Transfer of Property Act, which allows a co-sharer to sell joint property, but to the extent of his own share. Therefore, the sale transactions between the defendants Nos.1-2 and the remaining defendants are valid, but to the extent of their own share in the hereditament and in case of division of the property, the sold portion would be included in the share of the defendants Nos.1-2. The upshot of the above discussion, is that the present appeal is dismissed as the suit of the plaintiffs/appellants is hit by Order II, rule 2, C.P.C., but the same is no bar in the way of other laws and the plaintiffs/appellants may get division of their share through Collector under Land Revenue Act or otherwise and the sale transactions in favour of the respondents 3 to 30 are valid to the extent of share of the respondents Nos.1-2, therefore, the portion sold by the defendants Nos.1-2 in favour of defendants Nos.3 to 30 or to anybody else will be included in the share of defendants Nos.1 and 2 in case of partition. No order as to cost. S.M.B./122/P?????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.