2025 PLP 1840 (CLC)

DR. KHURSHID IQBAL, J.

The petitioner claims that Mst. Hashmata (the respondent No. 1) was not the daughter of Mst. Mairaja, the second wife of Abdul Hamid, his maternal grandfather. On the strength of this stance, he claims his share in the legacy of his mother Mst. Haya Jan, daughter of Mst. Dawa Jan, the first wife of his maternal grandfather. Abdul Rashid (the respondent No. 2) was the son of Mst. Dawa Jan-the step brother of Mst. Hashmat Bibi and the maternal uncle of the petitioner. In the year 2004, the respondent No. 1 sued the respondent No. 2 for having got transferred her ancestral property from her vide a mutation attested on the basis a registered deed. The respondent No. 1 also arrayed her real other Mst. Mairaja, as the respondent in that suit. After a full contest, the suit was decreed in favour of the respondent No. 1 vide judgment and decree dated 06.07.2013. The respondent No. 2 pursued his remedies up to the Supreme Court, but he lost his case. In that suit, an issue was raised that the respondent No. 1 was not the daughter of Abdul Hamid, but from another person to whom Mst. Mairaja married after the death of Abdul Hamid. Evidence was produced at the trial and it was judicially determined that the respondent No. 1 was the real daughter of Abdul Hamid and Mst. Mairaja. Both the Courts below have ruled-trial Court by order dated 20.05.2024 and appellate Court vide judgment and decree dated 20.09.2024-that the present suit of the petitioner is hit by the doctrine of res judicata. The petitioner brought this as the main question in the instant revision petition before this court.

2. The petitioner challenges inheritance mutation No. 1663 attested on 25.06.1995 of late Abdul Hamid. In short, he seeks declaration to reverse the aforesaid inheritance mutation and thereby deprive the respondent No. 1 from the legacy of Abdul Hamid. He also seeks possession, perpetual injunction in respect of the property detailed in the head-note of his plaint.

3. The main argument of learned counsel for the petitioner is that the petitioner was not a party to the previous suit. Res judicata, he elaborates, could be attracted when, amongst others, parties to both the former and subsequent suits are one and the same. The record made available, was perused.

4. The main point for determination, therefore, is that whether res judicata applies in the circumstances of the case. Another question is the legal status of a finding of the civil Court on the issue of parentage of a person already adjudicated upon by a civil Court which constitutes both a judgment in rem and a judgment in personam between the same parties, claiming under the same title, and which thereby operates as res judicata.

5. The record depicts that after demise of Abdul Hamid, his inheritance mutation No. 1663 was attested on 25.06.1995, whereby ownership of the suit property devolved upon the respondents Nos. 1 and 2, as well as Mst. Haya Jan (the mother of the petitioner). Though the petitioner disputes the inheritance, it is established on the record that his mother Mst. Haya Jan, who was alive at the time of attestation of the mutation did not challenge it, nor did she deny her familial relationship with the respondent No. 1, notably that she was not her step sister.

6. Adverting now to the former suit, the record further reveals that the respondent No. 1, along with her mother Mst. Mairaja, had filed that suit in which she challenged mutation No. 1692, dated 25.09.1996, which had been attested on the basis of a registered sale deed bearing No. 3463, Bahi No. 01, Volume No. 1651, dated 20.08.1996. That impugned mutation pertained to 05 Kanal, 21/2 Marla land, being part of a total 20 Kanals and 09 Marla, allegedly transferred from the respondent No.

1. The case of the respondent No. 1 was that the mutation was illegal and void, asserting that neither she appeared before the Sub-Registrat, nor did she affix her thumb impression on the registered deed. The suit was contested by the respondent No. 2 with a key defence that the respondent No. 1 is not the daughter of Abdul Hamid. Evidence in the shape of a registration form for obtaining National Identity Card was produced, which showed Mst. Hashmata daughter of Fazal Rahim. The petitioner seeks to use that form as evidence in the present suit. After a full contest, the trial Court decreed the suit vide judgment passed on 06.07.2013. The respondent No. 2 filed appeal which was dismissed on 10.07.2015. His revision petition before this Court also met the same fate vide judgment and decree rendered on 30.11.2015. He finally filed a petition before the Honourable Supreme Court, which was also dismissed on 18.10.2017.

7. The submission of the cognovit by the respondent No. 2 raises serious question of maintainability vis-a-vis the application of res judicata. Undeniably, he was the main defendant in the former suit. It was he who disputed the parentage of the respondent No. 1 from late Abdul Hamid. And, to reiterate, he unsuccessfully contested the same issue till the august Apex Court. The materiality of this admission lies in the fact that he is the real maternal uncle of the petitioner. In this perspective, perhaps there is no need to say who is standing behind the petitioner in the background. Indeed, the cognovit stands as more than a mere admission. It constitutes a tacit alignment with the petitioner's position, thereby effectively placing the respondent No. 2 in the shoes of the petitioner. By supporting the petitioner's plea, he now, by implication, challenges, in fact, re-agitates the parentage of the respondent No. 1, which, as an issue directly and substantially involved in the former suit, has been determined by all the Court concurrently.

8. Moving on to consider whether constructive res judicata applies in the attending circumstances of this case. Explanation IV to section 11 of the Civil Procedure Code, 1908, (C.P.C.)1, is reproduced for quick reference: Explanation IV- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

9. The above Explanation postulates that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in a subsequent suit. In the Province of Punjab2 (SC: 2000), the Supreme Court has stated the following 05 principles of constructive res judicata: (1) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly or substantially in issue either in actually or constructively in the former suit. (2) The former suit must have been a suit between the same parties or between the parties under whom they or anyone of them claim. (3) The parties as aforesaid must have litigated under the same title in the former suit. (4) The Court which decided the former suit must have been a Court competent to try the subsequent suit in which such issue is subsequently raised. (5) The matter directly and substantially in issue in the subsequent suit must have heard and finally decided by the Court in the first suit..

10. Starting with the first principle: the fact that the respondent No. 1 is the daughter of Abdul Hamid was substantially in issue constructively in the former suit. The inheritance mutation of Abdul Hamid, showing the respondent No. 1 as one of his legal heirs, was used as a material piece of evidence in the former suit. The respondent No. 2 even pleaded that she was not the daughter of Abdul Hamid-a matter which now the present petitioner has raised in the present (subsequent) suit. Considering the second principle, the present petitioner was not a party to the former suit, a fact which he presses into service more avowedly. His plea is wrong. The reason is that he is raising his claim under the same parties. It may be elaborated here that the respondent No. 1 in the present suit was a plaintiff, and the respondent No. 2 herein, as defendant in the former suit. Coming to the third principle, the petitioner is deriving his title from late Abdul Hamid, the same person in the former suit. Both the respondents Nos. 1 and 2 herein claimed under the title of Abdul Hamid in the former suit, and now the petitioner, in connivance with the respondent No. 2, is deriving title from late Abdul Hamid. As the Court in both the suits is the same, there arises no issue about it jurisdictional competency. Attending now to the last principle, the matter substantially in issue in the present (subsequent) suit has been heard and finally decided by the Court in the former suit. Evidence was produced on the matter in issue and it was decided on merits by the Court of first instance which was upheld up to the to the Apex Court. The finding in the former suit has attained finality.

11. It was held in Maqbool3 (SC AJK: 2013) that a party cannot circumvent a final judgment by introducing new grounds or claims in a subsequent suit which were available but not asserted earlier. Khushi Muhammad4 (SC: 1999) ruled that even if certain questions were not raised in the earlier proceedings, the omission to do so attracted the principle of constructive res judicata. The dictum laid down in Amanul Mulk5 (SC: 1997) was that where the parties had the opportunity to assert all available grounds in a prior suit but failed to do so, such unraised grounds shall be deemed to have been heard and decided, and the parties would be precluded from agitating the same in subsequent litigation. In Ghulam Akbar Lang6 (SC: 2012), the Court applied constructive res judicata in writ jurisdiction. The significance of this precedent is two-pronged: first, the triggering of res judicata in a writ petition; and second, even a writ petition for quo warranto would not be exception to the operation of constructive res judicata if the circumstances warrant its application. The fact involved was the genuineness of a university degree adjudged in a former writ petition.

12. Challenging the paternity of a child is a serious and difficult issue. In the previous suit, the respondent No. 1 got arrayed her real mother Mst. Mairaja as a respondent. It fully established on all canons of evidence in the former suit that the respondent No. 1 was the daughter of late Abdul Hamid. Even Mst. Haya Jan, mother of the petitioner, who, too, was alive at that time, did not raise any such objection. A similar question was raised before the Supreme Court in Munir Hussain7 (SC: 2023). The august Court held that throwing a legal challenge to the paternity of someone is not an assertion of one's own legal character in terms of section 42 of the Specific Relief Act, 1887. In that case, the paternity of a child was questioned seven months after the death of the child's father and at a time while the child was 17 years old. The same situation exists in the case in hand in which the paternity of the respondent No. 1 is disputed after the death of her father and while she herself is admittedly a woman of adult age. It is worth noting that her paternity was never challenged in the life time of Abdul Hamid that the respondent No. 1 was not his child from Mst. Mairaja. The Court also held that a person whose legal character, including paternity, is denied, can file a suit to assert entitlement, but in that case, as all the same, in the present case, the respondent No. 1 has not filed a suit. In other words, it is the petitioner who challenges it wrongly and illegally. In the case of Laila Qayyum8 (SC: 20l9), the Supreme Court has discussed this issue in greater details with reference to case law. The facts of that case are that the plaintiff sought declaration to the effect that the defendant-woman was not his real sister but an adopted child of his parents, and that she is not entitled to his father's legacy. In the present case, though adoption is not agitated, the assertion is that the respondent No. 1 is not the daughter of Abdul Hamid. The august Court ruled against the plaintiff on certain facts, such as: a. The seeking of a negative declaration, viz. that a person is not the child of a particular person, has nothing to do with his/her own legal (section 42 of specific relief law). The Court relied on as many as 6 precedents dating between 1946 and 2003, indicating that it is trite law.9 b. A person whose legal character, including his /her paternity could file a declaratory suit that s/he was the child of someone if such legal character is denied (section 42 of specific relief law).10 c. Plaintiff s prayer to cancel all documents showing the defendant as adopted child of his parents, was dismissed because such documents were not causing serious injury to him within the meaning of section 39 of the specific relief law. d. A putative brother's suit to challenge his adopted sister's paternity is barred under Article 128 of the Qanune-Shahadat Order (QSO), 1984. Only a putative father may challenge the paternity under Article 128 of the QSO.11 e. Forcing a woman to offer sample for her DNA test to determine her paternity violates her liberty, dignity and privacy under Article 14 of the Constitution.12

13. Another key aspect of the instant case is the legal character of the earlier judgment concerning the paternity of the respondent No. 1, which partakes both of a judgment in personam and in rem. While a judgment in personam binds the parties to the suit, a judgment in rem conclusively determines the legal status of a person or thing and is binding erga omnes, provided it is rendered by a court of competent jurisdiction. The adjudication in the former suit, upheld by the highest judicial fora, directly and conclusively determined the respondent No. 1's parentage as the biological daughter of Abdul Hamid and Mst. Mairaja-an issue that was central to the dispute and decided after full contest. Although the petitioner was not a party to that litigation, he claims under Abdul Hamid-the same title as the respondent No. 2 did in the earlier suit-and is therefore bound by the earlier determination. Consequently, the former judgment operates as res judicata, both as to status and title, precluding the present challenge. In Trustees Port13 (Sindh: 2010) the learned Sindh High Court elaborated the distinction between a judgment in rem-which determines the status of a thing or a person and is conclusive against the world at large-and a judgment in personam, which binds specific parties to the litigation. The Court further held that though the Supreme Court's judgment in the present case is in rem as to status, it also operates in personam between the same the parties on the same issue previously adjudicated, thereby attracting the bar of res judicata. Justice M. Monir in his Principles and Digest of the Law of Evidence, gives the import of these terms as under: The point adjudicated upon in a judgment in rem is always as to the status of the res and is conclusive against the world as to that status, whereas in a judgment in personam the point, whatever it may be, me with which is adjudicated upon, it not being as to the status of the res, is conclusive only between parties or privies. A decision in rem not merely declares the status of the person or thing, but ipso facto renders it such as it is declared. Section 41 of the Evidence Act does not use the term 'judgment in rem', but it incorporates the law on the subject of judgments in rem, and makes them relevant not only against strangers but also conclusive of certain matters such as whether a person was entitled to a legal character or to any specific thing not as against any specified person but absolutely. Judgments in rem are an exception to the rule of law that no man should be bound by the decision of a Court of Justice unless he or those under whom he claims were parties to the proceedings in which it was dal given. This rule of law is referable to the morims of Roman Law namely, 'Res inter also judicata nullun inter alias prejudicium facit', or D 'Res inter alias acta alteri nocere non debet'. Such exception of the judgment in rem in the Roman Law was the foundation of the exception in English Law. Section 41 of the Evidence Act is the foundation for the exception of judgment in rem in our corpus juris.14

14. Last but not the least, this case has serious implications for women's right to inheritance. It has been fully established from the record that in the former suit, the respondent No. 2 tried to deprive the respondent No. 1 in the inheritance of her father by fraudulently obtaining from her a sale deed which she challenged before the court and obtained a decree in her favour. The respondent No. 2 contested the suit till the Apex court, dragging her in litigation till the final Court. Now, in the present suit, he again approached this Court being hands in glove with the petitioner, to re-agitate the issue which is deemed to have been taken on the doctrine of constructive res judicata. This case is a typical example of creating a pretext to deprive a woman of her property rights in the inheritance of her parents. Our higher Courts, particularly, the august Supreme Court of Pakistan has consistently condemned the practice of depriving female legal heirs of their rightful shares in inheritance, as ordained by Shari'ah. In the case of Mst. Parveen15 (SC: 2022), the Court highlighted the prevalent malpractice among male heirs in Pakistan, who resort to various tactics, including fraud, to deny female heirs of their legitimate inheritance rights. The relevant paragraph is reproduced below for ready reference:

12. We may once again state that we are dismayed to observe the all too frequent practice in Pakistan of male heirs resorting to fraud and other tactics to deprive female heirs from their inheritance. While this deprivation causes suffering to those deprived, it also unnecessarily tares the judicial system of the country, resulting in a needless waste of resources. Each and every day that a male heir deprives a female heir is also an abomination because it contravenes what has been ordained by Almighty Allah.

15. In light of the foregoing discussion and applicable legal principles, this Court holds that the petitioner's suit is barred by the principle of constructive res judicata. The concurrent findings of the Courts below, dismissing the petitioner's claim, are affirmed. It appears that the present suit constitutes an impermissible attempt to reopen issues conclusively determined till the Apex Court. The judgments and orders of the Courts below, being well-reasoned, do not warrant interference in revisional jurisdiction. Consequently, this petition, being devoid of merit, is dismissed in limini. UN/134/P Petition dismissed. 1 Section

11. Res Judicata. -No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. 2 Province of Punjab v. Ibrahim and Sons (2000 SCMR 1172). 3 Ch. Maqbool Raza v. Ashfaq Ahmad (2013 YLR 407 SC AJK). 4 Khushi Muhammad v. Province of Punjab (1999 SCMR 1633). 5 Amanul Mulk v. Ghafoor-ur-Rehman (1997 SCMR 1796). 6 Ghulam Akbar Lang v. Deewan Ashiq Hussain Bukhari and others (2012 SCMR 366). 7 Munir Hussain and others v. Riffat Shamim and others (2023 SCMR 6). 8 Mst. Laila Qayyum v. Fawad Qayyum and others (PLD 2019 SC 449). 9 References were made to: Deokali v. Kedar Nath ILR 39 Cal. 704, 709; Khanchand v. Jacobabad Municipality, AIR 1946 Sindh 98; Abdur Rahman Bhuyia v. Commission of Narayanganj Municipality, PLD 1959 Dacca 5; Abdul Rahman Mobashir v. Amir Ali Shah, PLD 1978 Lah. 113; Rehmatullah Khan v. Government of Pakistan" 2003 SCMR 50; and, Daw Pone v. Ma Hnin May, AIR 1941 Rangood 220, 221. 10 Abdul Karim v. Sarray Begum, AIR 1945 Lah.

266. Referred. 11 Ghazala Tehsin Zohra v. Ghulam Dastagir Khan (PLD 2015 SC 327). Referred. 12 Salman Akram Raja v. Government of Punjab (2013 SCMR 203). 13 Trustees of the Port of Karachi v. Karachi International Container Terminal Limited, (K.I.C.T.) (2010 CLC 1666 [Karachi]). 14 M. Monir, Principles and Digest of the Law of Evidence, Lahore: Law Publishing Company, Vol. I, 1974, p. 563. 15 Mst. Parveen (deceased through LRs v. M. Pervaiz etc. (2022 SCMR 64).