2004 PLP 1638 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Syed Qadir Bakhsh Shah and others have challenged the judgment, dated 1-4-2003 whereby their writ petition had been dismissed.

2. The petitioners filed a declaratory suit claiming lawful title and possession in the suit property and also that the decrees, dated 11-7- 964 of the Civil Judge and 8-9-1965 of the District Judge are not binding upon them and further that the judgment of the Supreme Court, dated 17-1-1987 in Civil Appeal No.128 of 1979 is ineffective against their rights and still further that the mutations attested pursuant to the aforesaid judgment are liable to be reviewed and corrected.

3. Such suit was contested through application seeking rejection of plaint. The trial Court on 4-5-1989 refused such rejection of plaint but the same was allowed by the learned Additional District Judge in appeal on 14-12-1991. The writ petition filed by the petitioners failed and hence this petition.

4. The learned High Court was of the view that the order passed by the learned Additional District Judge rejecting the plaint was a decree in terms of section 2(2) of the C.P.C. and hence appealable under section 96, C.P.C. The request of the learned counsel that, if so, petition before the High Court may be treated as a revision, was turned down on the ground that even if so treated, it would be hopelessly time barred, for, the copy of the judgment having supplied on 23-12-1991, the Constitutional petition was filed on 30-5-1992.

5. We are of the view that the very idea that the order of learned District Judge was appealable under section 96, C.P.C is not in accordance with law. Only those orders and judgments are appealable under section 96, C.P.C. where the lower Court happened to exercise original jurisdiction. In the instant case the District Judge hart passed the order in his revisional jurisdiction and not original jurisdiction. The question of appeal under section 96, C.P.C, is referable to the nature of jurisdiction exercised and not to the nature of order passed.

6. It is a proved matter on record that regarding the suit-land the dispute came up to this Court in Civil Appeal No. 128 of 1979 which was decided on 17-1-1987 whereby the mutations conferring title upon the respondents had been restored. During the pendency of such appeal, this Court also had passed an injunction on 15-7-1979 restraining the State functionaries from making any further alienations etc. Learned counsel for the petitioners claimed that petitioners were never a party to such proceedings but it was vehemently contested by the learned counsel foe respondents /caveators that the alienations in favour of the petitioners had taken place during the pendency of the aforesaid appeal qua the suit-land, before the Supreme Court. In these circumstances, the petitioners would be deemed to have been aware of the dispute, having purchased the property when the lis had already been pending before the Court no less than the Supreme Court. They also were bound to apply for impleadment being vigilant of the rights of their vendors under the principle of caveat emptor. They are certainly bound by the said judgment challenging whereof before the Civil Court was rather a culpable dishonesty.

7. There is no force at all in the instant petition which is hereby dismissed and leave to appeal refused with costs throughout. M.B.A./Q-18/S. Petition dismissed