1973 PLP 237 (SCMR)

Subsequently the women lost their interests in the properties either by marriage or death. Mst. Sherina was one of the widows of Akbar Khan. On the death of Mst. Malakzada, one of the daughters of Akbar Khan, her share in the property was mutated and attested in favour of the two then surviving women, namely, Mst. Maryam another daughter of Akbar Khan, and Mst. Sherina, widow of Akbar Khan. This was Mutation No. 2919. On the death of another daughter of Akbar Khan, namely, Mst. Maryam, her share which then was the entire property left by Akbar Khan was mutated in favour of Mir Afzal Khan (vide Mutation No. 29201 attested on the 9th December 1921). Mir Afzal died in December 1922, and the mutation of his inheritance in Jhandoo Khel was made in favour of his children. Mst. Sherina died in 1952. In April 1955, Mst. Fatima and Mst. Anwar Bibi (petitioners Nos. 1 and 2, herein) filed a suit against the descendents of Mir Afzal Khan and the co‑snares in the disputed property for a declaration that Mst. Fatima was entitled to 49/144th share and Mst. Anwar Bibi was entitled to 5/48th share in the property left by Akbar Khan. The suit was decreed by the trial Court and it was declared that Mst. Fatima owned 19/96th and Mst. Anwar 8/96th share in the estate of Akbar Khan. Three appeals‑one by Mst. Fatima, another by Mir Piayo Khan and Mst. Malakzada, son and daughter respectively of Mir Afzal Khan and the third by respondents Nos. 1 to 7 and others, were filed before the District Judge, and they were disposed of in the following manner (1) Appeal of Mst. Fatima was allowed and she was declared to be entitled to 279/864th share and Mst. Anwar Bibi to be entitled to 1/9th share in the suit property. (2) Appeal of respondents Nos. 1 to 7 and others was dismissed. (3) Appeal of Mir Piayo and others was accepted and Pir Piayo was declared to be entitled to 1156/16416th share and Alit. Malakzada to be entitled to 3/ 16th share in the entire property of Akbar Khan. Thereafter, respondents Nos. 1 to 7 and others filed three second appeals before the High Court, namely, one challenging the dismissal of their appeal, another challenging the decree granted to Mst. Bibi Fatima and Mst. Anwar Bibi, and the third challenging the decree granted to Mir Piayo and others and Mst. Malakzada. It appears that in the year 1953 respondents Nos. 1 to 7 brought a declaratory suit (No. 96 of 1953) against the heirs of Mst. Sherina and other heirs of deceased Akbar Khan challenging the entitlement of Mst. Sherina widow of Akbar Khan, and the entries in the Revenue record in her favour in respect of the property in village Waziran Sperka. The suit was decreed by the Senior Sub‑Judge Bannu on the 12th June 1957, and Mst. Sherina was held to be in possession of the disputed property as a limited owner right from the death of Akbar Khan uptill her own death, and the shares of the parties were declared. The plaintiffs' appeal from this judgment and decree was dismissed by the District Judge, Derajat. Hakim Khan also preferred an appeal (No. 80‑B of 1970) from the said judgment and decree of the learned Sub‑Judge, and it was accepted, and the decree granted to the said plaintiffs was modified and their shares were reduced. The parties to Suit No. 96 of 1953 were the name as in the present suit and the issue was the determination of their respective shares and the subject‑matter of the litigation was substantially the same. In these circumstances the High Court rightly held that the determination of the shares between the parties operated as res judicata, and the Court accordingly found that the share of Mst. Bibi Fatima was 430/1968 and that of Mst. Anwar Bibi 1/12. The learned counsel appearing on behalf of the parties in the High Court had agreed that the finding given by the appellate Court in Appeal No. 80‑B of 1970 which was preferred from the judgment and decree in Suit No. 96 of 1953 operated as res udicata amongst the parties. Mr. Pir Bakhsh, who has appeared on behalf of the petitioners before us, also conceded before the High Court that the judgment in Suit No. 96 of 1953 operated as res judicnta between the parties with respect to their shares. That being so, it cannot now be contended before us that the shares as determined by the High Court were not correct. No point of law of general or public importance is involved in the petition, and it is accordingly dismissed. Petition dismissed.