P L D 1962 (W (PLP)

?????? |??????????????????????????? |?????????????????????? |?????????????????????? | Mst.=Amir ????? ??????Akram ?????? Mst.=Saftanosh???? Torai ?????? Khanzadgi??????? |??????????????????????????????????????? Shafa??? | ?????? |??????????????????????????????????????? Jahan??? | Mst. Hassan???????????????????????????? D. 9????? | Pari D. 5????????????????????????????????????????????? |????????????????????????????????????????????? ??????????????????????????????????? ?????????????????????????????????? ?| ?________________________|____________ ?|????????????????????? |?????????????????????? |?????????????????????? ? | ??? Mst. Zarina ? ?????Mst. Said ?? Mst. Bacha ????? ??????Saadullah ????????? P.4 ??????? ??????Marjan P. 3?????? Wazira P. 2??????? P. 1.

2. The facts of the case briefly are that Hussain, predecessor?-in-interest of the plaintiffs and defendants Nos. 1 to 9, purchased 474 kanals, 4 marlas of land out of 634 kanals, 4 marlas of land, comprised in Khasra Numbers specified in the heading of the plaint by mutation No. 491, attested on the 19th of December 1913. It appears from the record that on the basis of a private partition the land mentioned above fell exclusively to the share of Kaki Jan defendant No. 1, and the rest of the property left behind by Hussain was allotted to his (Hussain) other heirs by mutations No. 860-861 and 862, attested on the 23rd of December 1917. Effect was given to the above mentioned mutations in the Revenue Record, and consequently, Kaki Jan was shown the exclusive owner of the above mentioned land in the jamabandis of 1917-18 and 1921-22.

3. On the 3rd of December 1921, Torai (major) and Akram and Amir (minors), sons of Abdul Qadir, the latter two through Torai their next friend, brought a suit for possession of land in suit along with other land left behind by Hussain deceased. In this suit Saftanosh, father of the plaintiff petitioners, Kaki Jan defendant No. 1, and Abdul Khaliq were made defendants. It was alleged that the disputed land was jointly owned by the above-mentioned persons. The partition mutations attested on the 23rd of December 1917, entered at the instance of defendants 2 and 3 i.e., Kaki Jan and Abdul Khaliq, were attested during the minority of the plaintiffs, and, therefore, they were not binding on them. The case was heard by Sahibzada Fazal Rehman, Sub-Judge, Mardan, who after the conclusion of the evidence produced by the parties, strangely passed a decree for possession by partition of 714 kanals, 7 marlas and 7 sarsais in favour of the plaintiffs, and set aside the private partition on the ground that each of the co-sharers was not allotted his due share on the basis of it. On the strength of the above?mentioned decree, mutation No. 1108 was attested and the private partition previously effected was undone and all the heirs of Hussain were shown as the joint owners of all the land left behind. by him. Effect to this mutation was given in the settlement record of 1925-26 where Kaki Jan defendant No. 1, along with other heir of Hussain, was shown as co-owner of the disputed land. These entries were repeated in the jamabandis of 1950-51.

4. On the 19th of February 1942, Kaki Jan, son of Hussain, and Amanullah, son of Kaki Jan, brought a suit for declaration alleging that out of 682 kanals, 13 marlas of land comprised in Khasra numbers shown in the heading of the plaint on file No. 106/1, they were the owners of 542 kanals, 13 marlas. They alleged that 634 kanals, 4 marlas of land was purchased by Hussain, their predecessor-in-interest, which measured 682 kanals, 13 marlas in the last settlement, and so there was an increase of 48 kanals, 9 marlas in the area to which they alone were entitled. They alleged that on the basis of private partition, which had taken place long long ago, 494 kanals, 4 marlas of land was allotted to them and they were also entitled to 48 kanals, 9 marlas i.e., the increase in the area of the land which they had added to their land by encroaching upon the adjoining land, and thus in all they claimed 542 kanals, 13 marlas of land. This suit was registered at No. 106/1 in the Court of the Sub-Judge 4th Class, Mardan, on 21-2-1942. The present plaintiff-petitioners Mst. Badshah Wazira, Mst. Said Marjan, Mst. Zarina and Saad?ullah, who were defendants Nos. 20 to 23, were minors and were represented by their mother Mst. Shafa Jan, who was defendant No.

19. The other heirs of Hussain were also impleaded, who were Zaman, son of Abdul Malik defendant No. 14, Ashraf and Abdul Hakim, sons of Abdul Khaliq, and Amir and Akram, sons of Abdul Qadir, who were arrayed as defendants Nos. 15 to

18. From the record it appears that Mst. Shafa Jan, who was defendant No. 19 in the above mentioned suit, and was also the guardian-ad-litem of the present plaintiff-petitioners did not appear in Court in spite of service. Saadullah, plaintiff petitioner, who was defendant go. 22, was represented by the Reader of the Court who was appointed his guardian-ad-litem by the Sub-Judge, Mardan by his order dated the 14th of April 1942, which is at serial No. 6 of the order sheet, Amir who was defendant No. 17 in the above-mentioned suit, was appointed as the guardian-ad-litem of Zaman defendant No. 14 on the basis of the above-mentioned order. Amir, defendant No. 17, uncle of the present petitioners, and Zaman defendant No. 14 through Amir, contested the suit and denied the allegation of Kaki Jan and Amanullah that they were the owners in possession of the land, subject-matter of suit No. 106/1, on the basis of private partition. The pleadings of the parties gave rise to three issues and issue No. 2 was to the effect "was there any partition in consequence of which plaintiff No. 1 was allotted the area claimed ?" After the conclusion of the evidence produced by the parties, Mr. Haji Muhammad Khan, then Sub-Judge, Mardan, by his order dated the 1st of December 1942, passed a decree for declaration in favour of Kaki Jan and Amanullah to the effect that they were the owners of 542 kanals, 13 marlas out of 682 kanals, 13 marlas of land. He ordered defendants Nos. 1 to 8, 12, 13; 14 and 17 to pay the costs of the plaintiffs. The appeal preferred by Abdul Majid and Rahim Shah was dismissed by Mir Saeed Alam Khan, District Judge, Peshawar, by his order dated the 14th of January 1943. On second appeal the Bench of the Court of Judicial Commissioner, except for minor modification confirmed the judgments and decrees of the Courts below, and dismissed the appeal by the order dated the 5th July 1943. On the strength of the above? mentioned decree, mutation No. 1545 was attested on the 17th of April 1949 in favour of Kaki. Jan and Amahullah, showing them as the exclusive owners of the disputed land. It may be pointed out here that in the second appeal the plaintiff-petitioners were represented by the Reader of the Court of the Judicial Commissioner as it is clear from the last sentence of the order dated the 8th of May 1943, at serial No. 6 of the order-sheet.

5. The plaintiffs, being dissatisfied with the previous litigation, brought the suit out of which this revision petition arises for the possession of 1/12th share i.e., 43 kanals, 14 marlas out of 522 kanals., 13 marlas. They alleged that Hussain, predecessor-in-interest of the plaintiffs and defendants 1 to 9, had purchased 474 kanals, 4 marlas out of 634 kanals, 4 marlas. In ~he settlement of 1925-26 the area seems to have increased which measured 682 kanals, 13 marlas instead of 634 kanals, 4 marlas and thus the heirs of Hussain were joint owners of 522 kanals, 13 marlas instead of 474 kanals, 4 marlas. It was alleged that during their minority defendants 1 and 2 namely, Kaki Jan and Amanullah, brought a suit regarding their title to 682 kanals 13 marlas of land and a decree was passed in their favour against Abdul Majid and Rahim Shah, sons of Timbar Shah, and on the strength of the above-mentioned decree, the title of the plaintiffs was denied by them in the suit property. The suit was resisted by defendants Nos. 1 and

2. The` following issues were framed :? ??????????????????????? (1) Is the suit barred under the principle of res judicata ? (2) Whether the suit is maintainable in its present form ? (3) Whether the other co-sharers are necessary party to the suit ? (4) Whether the suit is properly valued for the purposes of Court-fee and jurisdiction ? (5) Whether the plaintiffs are estopped from claiming the suit land, due to conduct of their predecessor-in-interest? (6) Whether the plaintiffs are entitled to 1/12 share out of the Khasra numbers in suit ? (7) Whether defendants 1 and 2 are the owners of the entire fields in suit through partition? (8) Whether defendants 1 and 2 have become the owners of the suit property through adverse possession for over 12 years? (9) Relief.

6. After recording the evidence produced by the parties, Mr. Allah Nawaz Khan, Sub-Judge, Mardan, found issues 1, 3, 4 and 7 for the plaintiffs, and issues 2 and 6 against them. As a result of the above-mentioned findings, he left issue No: 8 undetermined, and dismissed the plaintiffs' suit with costs by his order dated the 27th of October 1952. On appeal the learned Additional District Judge, after maintaining the order of the Court below issue No. 1, and Without' determining the other issues, dismissed the appeal by his order dated 7th of June 1956, with costs: The aggrieved plaintiff-petitioners have come up on revision to this Court.

7. Learned counsel for the petitioners, urged that the present plaintiff-petitioners were minors during the pendency of suit No. 106/1, decided on the 1st of October 1942. They were .neither served nor represented by the guardian and, therefore, they could not be proceeded against ex parte and the decree passed against them would be a nullity. He also urged that from the plaint on file No. 106/1 decided on the 1st of October 1942, it appeared that the plaintiff-petitioners were impleaded' as pro forma defendants. In support of his contention he referred me to para. No. 4 of the plaint in file No. 106/1 wherein it is written that defendants Nos. 14 to 23, including petitioner were pro forma. He lastly urged that Mst. Shafa Jan, who was 'appointed as guardian-ad-litem of the plaintiff-petitioners, who were then minors, did not appear in Court, and on account of gross negligence and carelessness, she did not 'protect the defendants, and so the suit brought by them is not barred by section 11, C. P. C. and section 44 of the Evidence Act. The learned counsel submitted that the plaintiff-petitioners were minors, who were not represented by a guardian, and so the decree passed against them has no binding force: In support of this contention he referred me to Order XXXII, R. 3, which reads as under :- "(1) Where the defendant is a minor, the Court, on being satisfied of his minority shall appoint a proper person to be guardian for the suit for such minor." He further relied upon Note 5 captioned "Non-representation" under Order XXXII, rule 3, which lays down that: "A minor cannot be considered to be a party to a suit unless he is represented therein by a duly qualified guardian. A decree passed against a minor not so represented must be regarded as a decree passed against a person not a party to the suit and is, therefore, without jurisdiction, null and void. In order to set aside such a decree it is not necessary to show that the minor has suffered any prejudice by non-representation. It is not, however, necessary to set aside such a decree. The minor may ignore or disregard the decree. Not being a party to the suit, the minor will not be barred by the principle of res judicata from raising the same questions in a subsequent suit as were decided in the prior suit." He also relied upon a number of authorities. (Suns Mia) Ramanathan Chettiar v. (Moyna Pana) Palaniappa Chettiar and others (A I R 1934 Mad. 386) relied upon by the petitioners counsel lays down that "Where no proper guardian is proposed for a minor defendant nor any petition for leave to compromise the suit on his behalf is filed, there is no proper representation of the minor defendant . . . . . The decree can be disregarded." In another authority reported in Mst. Chambi and another v. Tara Chand and others (A I R 1924 All. 892) it was held that: "A minor who was unrepresented in the suit by any guardian cannot be held to be bound by the decree passed against him although he neither alleges nor proves that the decree passed against him is unjust or to his prejudice." He lastly relied upon Mst. Siraj Fatima and others v. Mahmood Ali and others (A I R 1932 All. 293), where it was held by a Full Bench that :? "The real basis of the binding character of a decree, against a minor is the fact of his having been duly represented by a proper person, and not the mere existence of any formal order appointing a guardian for him. Even when there be such an order, if the guardian does not properly represent him, the decree would not be binding." It is well established principle of law that a decree passed against a minor, who was not duly represented, has not binding force against him, but in the present case, there is material on the record to show that the plaintiff-petitioners, who were minors. were duly represented. A reference to order sheet serial No. E dated the 14th of April 1942, file 106/1, decided on the 1st of October 1942, would show that the Reader of the Court was appointed as the guardian-ad-litem of Saadullah who was defen?dant No. 23 in the case. Again as discussed above, the previous suit No. 106/ 1 was decreed in favour of the plaintiffs, the appeal brought by them was dismissed, and the further appeal except for minor modification was also dismissed by the Bench of the Court of Judicial Commissioner on the 5th of July 1943. Now a reference to the order-sheet dated 8-5-43 of the file of the Court of Judicial Commissioner would show that respondents 20 to 23, who were Mst. Badshah Wazira, Mst. Said Marjan, Mst. Badshah Zarina and Sadullah i.e., the plaintiff-petitioners, were represented by the Reader of the Court of Judicial Commissioner. That being so, I am of the opinion that the plaintiff-petitioners were properly represented and, therefore, the authorities relied upon by the learned counsel for the plaintiff petitioners are not applicable. It is true that Mst. Badshah Wazira, Mst. Said Marjan and Mst. Badshah Zarina were not represented by guardian in the Court of Sub- B Judge, Mardan, but since they were represented in the Court of Judicial Commissioner by the Reader and since the judgments of the two Courts below have merged in the judgment of the Court of Judicial Commissioner the representation of the minors was proper.

8. Counsel for the plaintiff-petitioners next urged that the plaintiff-petitioners were pro forma defendants in the previous suit No. 106/1, their interests were not identical with the rest of the defendants, and no relief was claimed against them. From file No. 106/1, decided on the 1st of October 1942, it would appear that Amir and Zaman, whose interests are identical with the interests of the present plaintiff-petitioners, contested the suit brought by Kaki Jan and Amanullah and denied their title to the disputed property having become its exclusive owners on the basis of private partition, and so it follows that they had duly contested the point which the present plaintiff-petitioners would have raised in the previous suit against defendants Nos. 1 and

2. The plea raised by the defendants Amir and Zaman had given rise to issues regarding the allotment of the suit land to Kaki Jan and Amanullah on the basis of partition, which was found in their favour by the Sub-Judge and was confirmed on appeal by the District Judge and 'the Bench of the Court of Judicial Commissioner, North-West Frontier Province.

9. The learned counsel for' the respondents relied upon Har Gobind and another v. Gitam and others (A I R 1929 All. 346), where it was held that "the minority of the defendants at the time of prior decision does not preclude the operation of 'res judicata against them provided that some of the defendants had identical interests with theirs." The authority relied upon by the learned counsel t for the respondents is applicable to the case, because the interests of the plaintiff-petitioners were identical with the interests of Amir and Zaman who had contested the suit. A decree once l obtained can only be set aside on the ground of fraud, and i cannot be set aside on the ground of mistake. In this view o mine I am fortified by Municipal Committee v. Harnam Dass (A I R 1928 Lah. 178 (2)). The same view was taken in Raj Gopal Achariya Goswami v. Upendra Achariya Goswami (A I R 1926 Pat. 528).

10. As a result of the above discussion, I have come to the conclusion that the plaintiff-petitioners were defendants in the previous suit No. 106/1 along with Amir and Zaman, the points at issue in the interests of the plaintiffs and Zaman and Amir, who had contested the suit, were identical, and the subject-matte of the two suits was also identical. I, therefore, hold that the learned Additional District Judge was perfectly right in coming to the conclusion that the decision in the previous suit would operate as res judicata, and so while maintaining his order, I dismiss the revision petition with costs. K. B. A.?????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.