2003 PLP 1648 (MLD)

Date of hearing: 12th August, 2002 The petitioner through this revision petition has assailed the order of the First Appellate Court dated 21-4-1996 by virtue of which an appeal filed by , Nazir Ahmad, present respondent, who was plaintiff before the trial, Court, was accepted and his suit for declaration and injunction, dismissed by the trial Court vide judgment and decree, dated 13-12-1994, was decreed as prayed for.

2. The facts in brief are that the present respondent/plaintiff filed a suit for declaration and injunction with the averments that Jalal Din, defendant No. 1, was owner to the extent of 19 Kanals and 4 Marlas of land situated in Tehsil Chunian District Kasur. The plaintiff alongwith the husband of Mst. Khurshid Bibi (Bashir Ahmad), who was also the real brother of the plaintiff and father of defendants Nos.3 and 4 jointly filed a suit for possession of 4 Kanals of land situated in Khasra No.469, Khewat No-19 Khatooni Nos.5 and 6 in the Court of Civil Judge, Chunian on 19-9-1974 in which Jalal Din appeared and made a conceding statement upon which a consent decree was passed on 21-9-1974 in their favour, which-was given effect in the Revenue Record on 30-7-1979. It was alleged that at a later stage defendant No.1 collusively got a Mutation No. 1747 attested in favour of Mst. Khurshid Bibi and others excluding him of the same property as abovesaid on 28-8-1988 and on the basis of this attestation of mutation they brought a suit for ejectment of the present plaintiff from the suit property which was decreed ex parte in favour of the present defendants, the plaintiff submitted an application before the Assistant Commissioner, Chunian to set aside the ex parte decree which was allowed and at a later stage when he failed to appear on 25-5-1991, it was dismissed and he had to file the present suit. The defendants contested the suit. The learned trial Court on the pleadings of the parties framed the following issues:-- (1) Whether the plaintiff is owner, in possession of suit-land and Mutation No. 1747 dated 28-8-1988 is illegal, collusive, void and inoperative against the rights of the plaintiff? OPP (2) Whether this Court has no jurisdiction to entertain the present suit? OPD (3) Whether the plaintiff is estopped from bringing the present suit by his words and conduct? OPD (4) Whether the suit is barred by time? OPD (5) Relief The trial Court, after recording the evidence of the parties and giving them an opportunity of hearing, came to the conclusion that the suit of the plaintiff was liable to dismissal and dismissed it accordingly on 13-12-1994. The preset respondent feeling himself aggrieved filed an appeal before the First Appeal Court from where his appeal was allowed and the judgment and decree of the trial Court was set aside and his suit was decreed in his favour as prayed for, hence this civil revision.

3. Both the learned counsel for the parties have been heard and the record has been perused with their assistance. The record reveals that Bashir Ahmad, predecessor-in-interest of the present petitioner was the real brother of the present respondent. Initially the above-said Bashir Ahmad (now. deceased) alongwith the present respondent and the present petitioners Nos.2 and 3 filed a suit in the Court of Civil Judge, Chunian on 19-9-1974 seeking a relief of possession of 4 Kanals of land against Jalal Din, defendant No.1 before the trial Court and respondent No.2 in this civil revision. In the said suit Jalal Din appeared and made a statement admitting the claim on the basis of which a consent decree in favour of abovesaid Bashir Ahmad, the present petitioners Nos.2 and 3 and present respondent No.1 was passed on 21-9-1974. The record further reveals that the said decree was duly implemented and executed in the Revenue, Record. The result was that after this decree and its execution Jalal Din was no longer owner of the said property measuring 4 Kanals i.e. the suit property and was not competent to transfer or alienate it to anyone in any manner. Analysing the attestation of mutation dated 20-8-1988 in this perspective to have been executed by A Jalal Din (Respondent Nos.2 in this civil revision) in favour of petitioners Nos.2 and 3 in this civil revision, exclusion of present respondent No.1 was not legal and based on facts. Nazir Ahmad, the present respondent No.1 alongwith petitioners Nos.1 to 3 were continued to be owner of 4 Kanals of land on the basis of decree passed in their favour on 21-9-1974. In this eventuality the judgment of the learned trial Court dismissing his suit in its entirety was not in consonance with law, and the judgment of the learned First Appellate Court decreeing the suit of respondent No.1 to the extent of total area of 4 Kanals of land excluding the present petitioners Nos.1 to 3 was also not legal, as such the present revision petition is disposed of in the following manner that the present revision petition is partly allowed, the impugned judgment and decree of the First Appellate Court is modified to the extent that the present respondent No.1 alongwith the present petitioners Nos. 1 and 3 are owner of 4 Kanals of land jointly on the basis of decree passed on 21-9-1974 and the subsequent mutation attested on 20-8-1988 by present respondent No.2 in favour of present petitioner Nos. 1 to 3 is not valid and legal. There is no order as to costs. S.M.A.H./K-171/L Order accordingly.