1990 PLP 257 (CLC)

(2) Whether the said Mst. Gulab Bano was maintenance holder of the suit land? (3) Whether the plaintiffs are entitled to claim possession of any part of the suit land? (4) What is the effect of decree dated 5‑12‑1964 on the suit? (5) Relief. On behalf of the plaintiffs, Fazal Hussain examined himself as PW.1 and produced copy of Jamabandi relating to the suit land for the year 1959‑60 Ext. Pl, copy of judgment dated 5‑12‑1964 Ext.P2 and closed his side of the case. For the defendants, Rab Nawaz defendant No.3 made his own statement and also tendered copy of judgment dated 8‑1‑1966 passed in appeal Ext.Dl. This was the entire evidence which both the parties gave on which the trial Court adjudicated upon their respective entitlements. Under issues Nos.l and 2, it was held that the term maintenance holder was included in the term limited owner. In regard to issue No.2, it was found that its decision shall be subject to the decision on issue No.4 which in turn related to legal effects of the previous decision dated 5‑12‑1964. Under issue No.4, the Court held that the decree passed on 5‑12‑19(4 though firmly bound the parties to the litigation but it had no effect on the right of the persons who were not made parties to the suit culminating in the aforesaid decree. For purposes of reference, it seems necessary to quote an extract from the judgment of the trial Court recorded under issue No.4. It reads: The previous litigation was between the defendants 1 to 4 on one side and defendants 5 to 25 on the other hand and decree dated 5‑12‑1964 resulted from that litigation. It was held vide Ex.P2 and EX.Dl that Mst. Gulab Bano was a maintenance holder and only defendants 1 to 4 and one Mst. Began were entitled to inherit Abbas as his customary heirs. Thus so far as the defendants are concerned the previous judgments and decrees operate as res judieata. But fortunately for the plaintiffs, they were not made party to the previous litigation nor any of the predecessors‑in‑interest of these plaintiffs was a party. This fact would appear adequately from Ex.P

2. Thus the plaintiffs are not bound by the previous decrees". Under issue No.3, the Court held that plaintiffs 1 to 3 were grand‑children of Mst. Bhag Bhari, sister of Abbas Khan deceased who was alive at the time of his death. Therefore, the plaintiffs were found entitled to take their share in the land of Abbas Khan deceased. Upon these conclusions, the trial Court concluded, "The result of the above findings is that plaintiffs 1 to " are entitled to the decree prayed for. Plaintiff No.4 is not an heir of Mst. Bhag Bhari. She is entitled to no share. The question that now requires determination is to what share the plaintiffs are entitled. At the death of the last male holder his two brothers and five sisters were alive. But the descendants of the four sisters have been held not to be entitled to any share in the previous litigation and they are bound by the previous decisions. Thus it would now be considered as if at the death of the last male holder his two brothers and Mst. Bhag Bhari one sister was alive. Mst. Bhag Bhari was entitled to inherit 1/5th share out of the disputed estate. The plaintiffs are entitled to that 1/5th share. They have sued for a lesser area. The suit of the plaintiffs is therefore decreed as prayed for in favour of plaintiffs 1 to 3 against defendants 1 to 4 and defendant No.14". On above lines, the trial Court decreed the suit. Against this decree, only Rab Nawaz defendant No.3 preferred an appeal to the District Judge, Campbellpur. Others were arrayed as respondents in the appeal. It was conceded before the District Judge by Syed Haider Shah, learned counsel for the appellant that Mst. Gulab Bano was a limited owner and the only point pressed was as to who were the Muslim Law heirs of Abbas Khan at the time of his death and as to what were their shares in the land left by him. Parties also agreed that Abbas was survived by following heirs:‑ (1) Mst. Gulab Bano. widow. (2) Nawab Khan brother. (3) Muhammad Khan brother. (4) Mst. Mehr Bhari sister. (5) Mst. Malkani sister. (6) Mst. Bhag Bhari sister. (7) Mst. Sardar Bano sister. (8) Mst. Mehr Bibi sister. Widow was given 1 /4th share and the remaining 3/4th share was divided amongst the brothers and sisters in such a way that each brother got double the share as compared to his sister. Leaving 1/4th share to the widow, each brother was given 2/12 share and each sister 1/12 share. Having specified the shares, the Court observed, "The plaintiff respondents are descendants of Mst. Bhag Bhari. They cannot get more than the share which has to devolve upon Mst. Bhag Bhari. 1, therefore, hold that the plaintiff‑respondents are entitled to get 1/12th share in the property left by Abbas Khan, the last male holder. I partly accept the appeal and modify the judgment and decree of the learned lower Court. I grant the plaintiff‑respondents a decree for possession of 1/12th share in the suit land instead of 1/5th share allowed by the learned lower Court". Aggrieved by this judgment and decree, Fatch Khan son of Mst. Sardar Bano (defendant No.5), Noor Khan son of Mst. Malkani, Abdur Rehman, Abdur Rahim, Mehr Mohammad (defendants 10 to 12) sons of Mst. Mehr Bhari, Mst. Bakht Bhari daughter of Mst. Bakht Bano and Mst. Noor Bhari daughter of Mst. Bakht Bano preferred second appeal to this Court. At the hearing of second appeal, it was argued by Mr. Ahmad Raza Khan Qasuri Advocate that Abbas Khan was survived by a widow, two brothers and four sisters only. The names of sisters are: Mst. Sardar Bano, Mst. Malkani, Mst. Bhag Bhari and Mst. Mehr Bhari and that there was no fifth sister by the name of Mst. Mehr Bibi whose name, so the counsel argued, was incorrectly stated in the pedigree in para 2 of the plaint. Learned counsel submitted that the learned Courts below was erroneous to hold that Abbas Khan was survived by five sisters and consequently, the shares worked out for the parties in the suit property were incorrect. Learned counsel further submitted that there was no evidence to establish that Mst. Mehr Bibi was sister of Abbas Khan deceased. Malik Mohammad Jaffar learned counsel for the respondents, in reply, submitted that finding as to the number of sisters of Abbas Khan was correct. Also submitted that in absence of an appeal or cross‑objections filed against the decision of the trial Court, its correctness shall be deemed to have been accepted and the appellants were precluded from preferring a second appeal to this Court for agitating the point about their entitlement in the land in dispute. Learned counsel further argued that findings about number of brothers and sisters had enough support of the evidence and being a finding of fact cannot be upset in second appeal. Seen from the above, three points of materiality emerge for consideration in this appeal. First, is as regards the number of sisters left behind by Abbas Khan deceased; second is as to the share of parties in the land left by him and the last is about the effect of non‑filing an appeal or cross‑objections against the judgment of the trial Court by the appellants. Before I proceed to examine the points mooted in the appeal, it is necessary to observe that upon some facts, there is no dispute between the parties and these are:‑ Land in dispute was owned by deceased Abbas Khan; he was its last male owner and was governed by custom; upon his death, land was mutated in the name of his widow as limited owner; Abbas Khan was survived by two brothers, namely, Nawab and Muhammad Khan and sisters, namely, Mst. Sardar Bano, Mst. Bhag Bhari; Mst. Malkani and Mst. Mehr Bhari; pedigree in para. 2 of the plaint excepting that relating to Mst. Mehr Bhari was correct; judgments Exts. P2 and D1 were not res judicata of the points decided in them and on that account were not a bar to determine true shares of the legal heirs and to make a decree in accordance therewith for giving full relief to the parties. Having stated the facts and the points requiring determination. I shall now advert to the first point whether one Mst. Mehr Bibi was sister of Abbas Khan deceased. In Ext. P2, the trial Court clearly observed that Abbas Khan died leaving behind him surviving a widow, twb brothers and four sisters, namely, Mst. Sardar Bano, Mst. Bhag Bhari, Mst. Mehr Bibi (defendant No. 5) and Mst. Malkani. I may pause here for a while to observe that though in the judgment Ext.P2, Mst. Mehr Bibi defendant No.5 was mentioned as sister of Abbas Khan deceased but in the memo of parties, the name of defendant No.5 was given as Mst. Mehr Bhari. In appeal filed against this decision by the then plaintiffs in that suit, the point whether deceased Abbas Khan was survived by four or five sisters was not commented upon as is self‑evident from Ext.Dl. Likewise, the plaint in the instant suit except stating pedigree of parties in para 2 was silent on the number of sisters surviving Abbas Khan deceased. Correctness of pedigree given in para 2 of the plaint was repudiated by contesting defendants 1 to

4. Fazal Hussain PW.1 did not say anything on this point in his statement in Court. Similar was the statement made by Rab Nawaz DW.1. Upon the existing records, there was not a shred of material to establish that Mst. Mehr Bibi was one of the sisters of deceased Abbas Khan or that he was survived by five and not four sisters. To the contrary, the trial Court had in Ext.P2 clearly found that deceased was survived by four sisters only. In absence of clear and sure evidence, it is not understandable as to how and upon what material the Courts below had come to hold that deceased was survived by five sisters including Mst. Mehr Bibi. On 20‑9 1989, appeal was further adjourned for eliciting information from the learned counsel for the parties on certain points. One of the points related to the number of sisters of the deceased Abbas Khan. On 26‑9‑1989, when the appeal came up for re‑hearing, Malik Mohammad Jaffar gave in writing that Abbas Khan had four sisters only and Mst. Mehr Bibi was not his sister. It was further stated that mistake for the first time had cropped up in the plaint filed by Fazal Hussain etc. plaintiffs. Therefore, both on evidence and free and frank concession of learned counsel, finding recorded by learned Judge below holding that deceased was survived by five sisters cannot be upheld. The result is that deceased was survived by a widow, two brothers and four sisters only. There is no dispute that he die dissueless. His widow is entitled to 1/4th share and parties raise no dispute about it. Remainder 3/4th shall be divided among two brothers and four sisters in accordance with Islamic Law of inheritance. With the assistance of the learned counsel appearing for the parties, shares of the legal heirs are as indicated below: (1) Widow 1/4th=8/32 (2) Each brother 3/16=6/32 (3) Each sister 3/32 This brings me to the last limb of the question as to the effect of plaintiffs' not challenging the judgment of the trial Court in appeal or cross‑objections and whether in absence of an appeal or cross‑objections the Court had power to give relief which the parties were found entitled to on the facts proved in the case, in the light of correct law 0applicable thereto. General rule is that a decree is binding upon the parties to it until it is set aside in appropriate proceedings. Necessary corollary of the above rule of law is that a party who wishes to have a decree against him set aside, varied, modified or reversed, must apply with certain requirements as to filing of appeal, cross‑objection and so forth. Therefore, as an ordinary rule, an appellate Court must not reverse or vary a decree in favour of a party which has not preferred an appeal or cross‑objections against it and this central rule holds good notwithstanding provisions in rule 33, Order XLI of Civil Procedure Code. But it cannot be denied that in exceptional cases, the above rule empowers the Court to pass such decree or order as ought to have been passed or as nature of the case may require even if such decree would be in favour of non appealing parties who did not choose to prefer an appeal or file cross‑objections against the lower Court's decree. It is also clear that although exercise of power in rule 33 is discretionary with the Court b t when an occasion demands and justice of the cause also so requires, the Court must perform its full duty and must not refuse to exercise its discretion merely on the ground that the party had not filed an appeal or cross‑objections before it. Sole and primary purpose for the existence of the institution of Court is to do justice to the parties in their causes brought before it. It must hold the scales even and give everyone his due in accordance with the law. As observed above, previous judgments and decrees were not pleaded as res judicata and rightly so because this point was not even pressed before the learned Judge below. Trial Court gave 1/5th share in the property of the deceased to successors of Mst. Bhag Bhari. Plaintiffs did not filean appeal against this decision. Only Rab Nawaz defendant No.3 came up in appeal before learned District Judge wherein plaintiffs' share was reduced to 1/ 12th. As it has been held that Abbas Khan was survived by four sisters and each sister was entitled to 3/32 share in his property, heirs of Mst. Bhag Bhari are entitled to get that share which had to devolve upon her. True, they did not file any appeal or cross‑objections against the judgment and decree made by the D Court below. But this is a suit by the plaintiffs for their share in the inheritance of the suit property. As I am now ascertaining the shares of the parties in the property left by deceased, I must make a decision consistent with the rights of all the arties. I think, therefore, I can fairly invoke the provisions contained in Order XLI, rule 33, Civil Procedure Code and while determining the shares of all the parties can say that the plaintiffs are entitled to 3/32 shares in the property of the deceased and their suit is decreed accordingly. Findings of the Courts below as regards the shares are reversed and to that extent, judgments and decrees passed by learned Courts below are modified. Appeal succeeds partially to the extent indicated above. Costs of the proceedings in this Court shall be borne by the parties as incurred. Records be returned. A.A./F‑155/L Appeal partly accepted.