P L D 2021 Peshawar 8 (PLP)

MUHAMMAD NAEEM ANWAR, J.

This civil revision has been directed against the judgment and decree of learned Additional District Judge-V Charsadda, whereby the appeal filed by respondents was accepted, consequently the judgment and decree of the learned trial Court was set aside and suit filed by plaintiffs/respondents was dismissed.

2. Significant facts, necessary for disposal of the instant revision petition are that respondents (Rasool Khan and others) filed a suit for declaration etc, in respect of the property measuring 43 Kanal on the strength of sale deed No.670 dated 1.9.1956 and mutation No.469 dated 6.11.1956 by alleging therein that on the basis of the judgment of by Judicial Commissioner dated 16.09.1949 Farid and Akbar sons of Muhammad Zarif Khan were declared as owners of the suit land and to that effect mutation No.447 dated 23.02.1956, and mutation No.466 dated 26.04.1960 Mst. Shalo and others (respondents Nos.1 to 7 and 13) had become the owner of the suit land, from whom the suit property was purchased by predecessor in interest of the plaintiffs/petitioners namely Abdul Jabbar, through registered deed No.370 dated 1.9.1956. Fazal Raheem predecessor in interest of respondents Nos.6 and 7 in collusion with the official of the Revenue Authorities got attested mutation No.447 dated 23.2.1956 whereby his name was included in the inheritance of Mst. Bibi Rana through attestation of Mutation No.820 dated 20.04.1960. It was contended that order of attestation of mutation No.820 dated 22.04.1960 was passed in their absence, as no notice was issued to them, therefore, the entries in revenue papers on the basis of mutation No.820 in favour of Fazal Rahim and others are wrong, illegal, against the fact and against the judgment of Judicial Commissioner Peshawar.

3. Suit of the petitioners/plaintiffs was contested by respondents who had submitted their respective written statement from the divergent pleadings of the parties, following issues were framed. ISSUES

1. Whether the plaintiffs have got a cause of action? OPP

2. Whether suit is bad for non-joinder and mis-joinder of both the parties? OPP

3. Whether suit is maintainable? OPP.

4. Whether plaintiffs are estopped to sue? OPP

5. Whether plaintiffs are owners and possessor of the suit property on the basis of deed No.670 and sale mutation No.469? OPP.

6. Whether the mutations Nos.466 and 467 attested on 17.09.1969 and mutation No.974 attested on 27.12.1992 are against the revenue record and law, if so, what is its effects?

7. Whether the suit is hit by the principle of res judicata? OPP

8. Whether plaintiffs are entitled for declaration as prayed for? OPP

9. Whether plaintiffs are entitled for the perpetual injunction as prayed for? OPP

10. Whether plaintiffs are entitled for possession as prayed for? OPP

11. Relief?

4. After recording of pro and contra evidence, the suit was decreed by the learned trial Court through its judgment and decree dated 2.11.2009, which was assailed by the respondents/defendants before the learned appellate Court, where the appeal filed by defendants/ respondents was accepted, judgment and decree of learned trial Court was set aside and suit of the plaintiffs/petitioners was dismissed.

5. Arguments heard and record perused.

6. In order to prove the respective contentions, as alleged in the pleadings, plaintiffs/petitioners produced Abdul Ghafoor, Patwari halqa as PW.1, Malik Aman, patwari Halqa as PW.2, statement of Rasool Khan was recorded as PW.3, being the attorney for rest of the plaintiffs/ petitioners. As against that, respondents/defendants produced Abdul Manan as DW1, statement of Muhammad Israil was recorded as DW.2 whereas statement of Fazal Wadood was recorded as DW.3.

7. Admittedly the dispute in between the parties is in respect of the property owned by one Amir Nawas son of Fazal Akbar, who was original owner of the property in dispute, situated in Zarbab Garhi, Umarzai and Maira Umarzai. Amir Nawas died issueless and his property devolved solely upon his mother Mst. Rana vide inheritance Mutation No. 108 dated 10.03.1935, who was the customary limited owner. The entire property was mortgaged by Mst. Rana to one Said Alam through registered mortgage deed dated 31.07.1943. Mst. Bibi Rana, then sold her rights with regard to equity of redemption at the hands of one Mian Khadim Shah vide sale deed dated 30.08.1943. Farid Khan and Akbar Khan (who claimed to be reversioners of Amir Nawas in case of termination of limited ownership of Mst. Bibi Rana brought Suit No.370/1 on 04.09.1947 (Ex.PW2/3) for declaration that Mst. Bibi Rana was limited owner therefore she could not dispose of the property and after her death or re-marriage, the plaintiffs shall be entitled to the "possession" of land being reversioners of Amir Nawas. They have challenged the transfer made by Mst. Bibi Rana in respect of her limited ownership. The suit was decreed by the learned Sub-Judge through his judgment and decree on 24.04.1948. The judgment and decree of the learned Sub-Judge was assailed before learned appellate Court, where the appeal was allowed and the suit filed by Farid Khan and Akbar Khan (the then 'plaintiffs') was dismissed, by the learned appellate Court on 22.01.1949. The second appeal bearing No.31/15 was filed by Farid Khan and Akbar Khan before the then Judicial Commissioner, Peshawar where the appeal was accepted and the suit was decreed through judgment and order dated 17.09.1949. The operative part of the judgment of Judicial Commissioner was as under: "we therefore, hold that it has been conclusive established upon record that the plaintiffs' are reversioners of Amir Nawas and would be entitled to succeed to his property on the death or re-marriage of Mst. Bibi Rana". Record further reveals that when Mst. Rana had died in mid of fifties the inheritance Mutation No.447 dated 23.02.1956 was attested in favour of Farid Khan and Akbar Khan. The pedigree Table would make the situation clear with respect to the inheritance of Amir Nawas and revisioners as such the pedigree Table is as under:-- Mst. Bibi Rana was the widow of Fazal Akbar and mother of Amir Nawas. Fazal Rahim happened to be the brother Mst. Bibi Rana whereas Farid and Akbar were the sons of Muhammad Zarif who was son of paternal uncle of Amir Nawas. Fazal Rahim filed an appeal to the Collector on the ground that he being the real brother of Mst. Bibi Rana is entitled for legacy. The appeal succeeded vide order dated 28.02.1957 and the matter was remanded to the revenue officer with the direction to ascertain the legal status of Farid and Akbar and the factum of Fazal Rahim being brother of Mst. Bibi Rana and then to attest the mutation. The operative part of decision in case No.51/9 decided on 28.02.1957 by Collector Peshawar is reproduced as under:- "I, therefore accept the appeal and remand the case back to Revenue Officer concerned for sanctioning the mutation a fresh giving due shares to each of the revisioners. It is not clear as to who Fazal Rahim appellant is and therefore, I pass no order as to what share will he inherit and hence the remand order." Record depicts that the said orders was challenged in appeal however the appeal was dismissed. The copy of order of Additional Commissioner (Revenue) Peshawar dated 06.05.1997 was placed on file as Ex.PW3/5. The operative part of the dismissal order of appeal is reproduced as under: - "If the female is entitled to any share under the shariat law of the last full owner she is to succeed to that share as a full owner and this share on her death is to pass to her heirs under Muhammadan Law. The passing of amending Act has rendered all previous decisions including that of 17.09.1949 in operative because these orders are not passed in the light of the amendment Act of the year 1950. The position now is that as Mst. Rana died after the year 1950 the property which was in her possession is to be mutated in accordance with the provisions of Act-II of 1950. No inquiry has been made by the revenue circle officer to ascertain the heir of the last full owner and also the heir under shariat of Mst. Bibi Rana, as such it was necessary to remand the case to him for holding an inquiry on this point and passing his order afresh."

8. It is pertinent to mention here that claim of the plaintiffs/ petitioners was that their predecessor-in-interest namely Abdul Jabbar had purchased the property through registered deed bearing No.370 dated 01.09.1956, from one Mst. Shalo and others who were the legal heirs of reversioners (Farid and Akbar). It is important to note that the registered deed on the basis of which the predecessor-in- interest of plaintiffs/petitioners became the owner was earlier to the attestation of mutation in favour of Fazal Rahim (brother of Mst. Bibi Rana). When the inheritance mutation of Mst. Bibi Rana was reviewed and was attested as Mutation No.820 on 22.04.1960 Fazal Rahim was given 1/3rd share while remaining 2/3rd were left with Farid and Akbar jointly. Order of revenue officer and Mutation No. 820 dated 22.04.1960 were assailed by the legal heirs of Farid and Akbar through Civil Suit No.272/1 instituted on 06.06.1960, the suit remained pending adjudication before the civil Court for more than two years, however, the then plaintiffs have requested for withdrawal of suit with the permission to institute a fresh one, resultantly the request was acceded by learned civil Court and the suit was dismissed as withdrawn on 26.10.1962 and the plaintiffs were allowed to institute a fresh suit. It would be appropriate to mention that since 26.10.1962 till 1996 no such suit was instituted and in the year 1996 the plaintiffs of suit No.272/1 i.e. Mst. Shalo, legal heir of Akbar and Farid and the legal heirs of Abdul Jabbar (present petitioners) filed suit No.74/1 by making their claim on the basis of the decision of Judicial Commissioner, Peshawar dated 17.09.1949 and have challenged the Mutation by which Fazal Rahim was held entitled owner of 1/3rd of the inheritance of his sister Mst. Bibi Rana, but interestingly the said suit was also withdrawn with the permission to institute a fresh one, as such the suit was dismissed as withdrawn on 19.10.1996 and they were allowed to file the fresh suit. Though the legal heirs of Akbar and Farid have not instituted any such suit however, the present plaintiffs instituted the instant suit for declaration on 17.11.1996 and they have impleaded the legal heirs of Farid and Akbar as defendants.

9. It was strenuously contended that the vendors of predecessor-in-interest of petitioners were the lawful owner of the property on the basis of the judgment of Judicial Commissioner dated 17.09.1949 from whom the predecessor-in-interest of the petitioners has purchased the suit land thus he had become the lawful owner of the property and the revenue officer was not competent to review the inheritance mutation of Mst. Bibi Rana as the matter involved intricate question of law and fact which was not within the domain of revenue officer who was bound to decide the matter in the light of the decision of the Judicial Commissioner but he acted illegally and with material irregularity when the judgment of Judicial Commissioner was either misunderstood or was not considered and Fazal Rahim was introduced as the legal heir of Mst. Bibi Rana.

10. Admittedly, undeniably and undisputedly the predecessor in interest of petitioners namely Abdul Jabbar had become the owner on the strength of registered deed No.370 dated 01.09.1956, when Fazal Rahim has already filed the application and claimed himself to be the legal heir of Mst. Bibi Rana (being his brother). It is also undisputed that the vendor of Abdul Jabbar remained a part of the said litigation before revenue officer. The dispute before the revenue officer was very simple to the effect that Fazal Rahim was the legal heir of Mst. Rana Bibi, who was excluded from the inheritance of Mst. Bibi Rana. The matter remained pending adjudication before revenue officer and also sub-judiced before the appellate Court and on remand it was reviewed and Fazal Rahim was held entitled in accordance with injunction of Islam to the extent of 1/3rd share of Mst. Bibi Rana. It is worth mentioning that at the time of institution of Suit No.272/1 which was instituted on 06.06.1960, in Para-9 of the plaint it was categorically mentioned in case Fazal Rahim is found entitled in the inheritance of Bibi Rana then the property of Moza Sarki-masharan should be adjusted against the share of Mst. Bibi Rana. Though the plaint of suit No.272/1 was placed on file as Ex. DW3/9, however, the same was not annexed with the instant petition, be that as it may, the suit was withdrawn with the permission to institute a fresh suit on 26.10.1962. The record further revealed that when the permission was accorded to the than plaintiffs they were burdened with the cost of Rs.50/-.

11. Civil Procedure Code, 1908 under the provision of Order XXIII Rule 1, which for convenience is reproduced as under:

1. Withdrawal of suit or abandonment of part of claim. - (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the Court is satisfied- (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim."

12. Evidently, the predecessor-in-interest of the petitioners had purchased the property from Mst. Shalo widow of Farid Khan, Mst. Niaz Parwar and Mst. Saliha, daughters Muhammad Zarif Khan and sisters of Farid Khan vide registered deed bearing No.670 dated 01.09.1956. When Suit No.272/1 was dismissed as withdrawn, thereafter, the institution of the Suit bearing No.74/1 in the year 1996 shall be considered in accordance with the provision of Rule 2 of Order XXIII, C.P.C., wherein it was provided that "In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit has not been instituted", thus the institution of Suit No.74/1 shall be considered within the four corners of Article 120 of Limitation Act of 1908.

13. In case titled Bahadar Alam v. Abdul Razaq (2001 YLR 331) it was held that "in case of institution of the fresh suit on the basis of permission granted under Rule 1 of Order-XXIII, C.P.C., the plaintiff is bound by the law of limitation in the manner as if the first suit had not been instituted. Thus, it will be seen that not only the time consumed in litigation in the form of earlier suit instituted by the plaintiffs and not to be excluded for the purpose of limitation but applicability of section 14 of limitation Act has also been excluded as it is to be deemed that no first suit had been instituted earlier." For the purpose of institution of a fresh suit, the limitation shall be considered from the knowledge as alleged in the earlier suit. In similar circumstances in case titled Abdul Karim Butt v. Government of Balochistan and others (1989 CLC 1625) it was observed that "it may be noted that the object of permission to file a fresh suit is that the technicalities of law may not stand in way of the plaintiff to defeat the ends of justice. But in case the rule gives protection to the plaintiff from running of limitation against him". For determining the period of limitation after the withdrawal of earlier one in case titled Malik Zahir v. Muhammad Salim (2010 CLC 642), it was held that "there is no cavil with the legal proposition that after withdrawal of first suit, limitation is to be reckoned from the date of filing of earlier proceedings as once limitation starts on the same cause of action then it does not stop". As Mst. Shalo and the legal heirs of Farid and Akbar (from whom the title was derived by the predecessor-in-interest of the petitioners) were aware in respect of the aforementioned development in the revenue papers and the petitioners/plaintiff at the time of institution of the last suit were estopped by their conduct under the principal Article 114 of Qanun-e-Shahadat Order, 1984. Though the petitioners of the instant suit were not the plaintiffs in suit No.272/1, however, as their predecessor-in-interest has purchased the property from Mst. Shalo and the legal heirs of Farid Khan who were the plaintiffs in the earlier Suit bearing No.272/1, the principal of estopple would be applicable as against the petitioners for the reason that Fazal Rahim (brother of Mst. Bibi Rana) and Farid and Akbar were litigating against each other, in which the revenue officer had attested the mutation by considering the claim of Fazal Rahim from which the vendors of the predecessor-in-interest of the petitioners were fully aware. Abdul Jabbar (predecessor of petitioners) and the petitioners were estopped under the principle as defined by Osborn's "It is the doctrine of law which precludes a person from denying the truth of statement formally made by him". The suit could be instituted within the prescribed period of limitation but by no stretch of imagination the time could be enlarged over a period of decades.

14. No doubt, in earlier round of litigation, when Fazal Rahim was not in picture, the matter remained subjudice from the Court of first instance till Judicial Commissioner and finally it was decided but the decision of Judicial Commissioner in no way could create any hurdle or barrier or blockade for Fazal Rahim whose claims was independent in respect of his entitlement in the property of his sister namely Mst. Bibi Rana. Learned counsel for the petitioners criticized vehemently the judgment of the appellate Court, however, the learned appellate Court has properly appreciated the entire facts since 1950 till the decision of appeal. The statement of patwari Halqa with respect to the claim of petitioners is very much relevant which is reproduced as under: As the property in dispute originally the ownership of Amir Nawaz son of Fazal Akbar (as discussed in Paragraph No.6 of the judgment) who died issueless and Mst. Bibi Rana being his mother was given the entire property as customary limited owner in whose favour Mutation No.108 was attested on 10.03.1935. On the death of Mst. Bibi Rana, Fazal Rahim was rightly held entitled in the legacy of Mst. Bibi Rana. It is by now well establishment principle of law that no one can transfer the better title of his own, therefore, the petitioners who happened to have succeeded the title of Mst. Shalo and the legal heirs of Akbar and Farid, against whom a decision was passed in the year 1960 when the inheritance Mutation of Mst. Bibi Rana was reviewed.

16. Petitioners have not been able to pointy out any mis-reading and non-reading of evidence or wrong application of law therefore, the instant petition is hereby dismissed with no order as to costs. ZC/169/P Revision dismissed.