1980 PLP 353 (SCMR)

Date of hearing : 3rd December 1979. MUHAMMAD AFZAL ZULLAH J.‑Leave to appeal is sought from the judgment dated 21st April, 1978 of the Peshawar High Court ; whereby, the petitioners defendants' second appeal arising out of a declaratory suit was dismissed. Malik Sardar, the common ancestor of the parties held the land in dispute. Two of his sons Rabnawaz and Mir Alam are the predecessors in interest of the petitioners and respondents respectively. The claim in the suit was that notwithstanding the fact that Mir Alam was the owner in possession of the land in dispute Khuda Bakhsh, from the side of the petitioners who was a Patwari through a fraudulent mutation (No. 140 of 1939) got the same mutated otherwise. The respondents remained unaware of the wrong entry till the settlement operation preceding the suit, wherein they were sought to be shown as tenants, therefore, the suit for declaration and also for correction of the entry. The learned trial Judge held that the plaintiffs and defendants 9 and 10 were the owners in accordance with their share and also in hissadari possession. The pleas of res judicata and estopple raised from the petitioners side were rejected. However the suit was dismissed on point of limitation counting the same from 1939 and also for absence of cause of action. It was thought that mere wrong entry in the mutation would not give cause of action because the respondents did not suffer any injury regarding ownership and possession. On first appeal the judgment was reversed on both these questions and decree was passed in favour of the respondents to the effect that the respondents are owners in suit land of their proved shares and that Mutation No. 140 has been wrongly attested". The petitioners 2nd appeal having failed they have sought leave to appeal. Learned counsel has contended : that in the previous litigation in 19121 Rabnawaz alone was adjudged as owner of the suit land, therefore, the suit was barred by res judicata ;that even though Mir Alam was not a party ii, that litigation, it would not reduce the.‑ farce of foregoing argument because in an earlier litigation in 1902 and 1905, he was a party and the decision therein were the basis of the decision in 1912 suit ; and that the basis o: mutation No. 140 of 1939 was the Court decision of 1912 therefore, it was not an invalid entry in the revenue records. The question of res judicata, as para. two of the High Court judgment'' shows was not pressed in the High Court. Moreover, it was not denied that Mir' Alam was not a party in 1912 decision. It is not binding on the respondents. The other two decisions of 1902 and 1905 _ were not relied upon before the Courts below in support of the plea of res judicata. The argument that the basis of mutation entry of 1939 was the decision of 1912 suffers from the same infirmity as the decision itself regarding the right Mir Alam and his successors. They were entitled to challenge the, same anti get it corrected. Although the points urged in the High Court have not been pressed now, yet we find that the approach of the High Court on those issues is unexceptionable. This petition has no force and is accordingly dismissed. Petition dismissed.