P L D 1983 Peshawar 100 (PLP)

(4) Whether the suit is bad for non‑joinder of necessary parites ? (5) Whether the plaintiffs are the owners in possession of the suit property ? (6) Whether the mutation No. 151 attested on 16‑3‑1971 was rightly attes ted in favour of the defendants? (7) Whether the decree passed in Case No. 334/1 of 1968 is ineffective on the rights of the plaintiffs ? (8) Whether the plaintiffs have become the owners of the suit property by adverse possession for 12 years or more ? . (9) Whether the plaiatiffs in the alternative are entitled to the pos session of the suit property by cancellation of Mutation No. 151 in suit .? (10) Whether the plaintiffs are entitled to the permanent injunction prayed for ? (11) Relief.

6. Shahzada Khan, Patwari, appeared as P. W. 1, whc placed on the record .a copy of the Jamabandi for the year, 1967‑68 Exh. P. W. 1/1 and certified copy of the Mutation No. 151 Exh. P. W. 1/2 attested on the basis of the civil Court decree in Suit No. 334/

1. Copies of Khasra Girdawari prepared by him were placed on the record as Exh. P. W. 1/3. He further deposed that the previous Khasra No. 81 is formed of Khasra No. 11 I min, 112,

113. Copies of the Jamabandi for the year 1947‑48 in respect of these khasra numbers Exh. P. W. 1/4, Exh. P. W. 1/5 is the copy of the Jamabandi for the year 1953‑54, on the basis of which consolidation proceedings were carried out. The pedigree‑table of the parties for the year 1947‑48 is Exh. P. W. 1/D.1 showing Aziz to be the common ancestor of the parties. Mir Zaman, plaintiff appeared as his own witness who.. narrated the facts as detailed above. He pro duced copy of the order of the court in the earlier Suit No. 3341 as Exh. P. W. 2/1. This P. W. denied the factum of compromise or the engagement.of counsel in the earlier suit. Jehan Dad, defendant No. 8 appeared as witness for the plaintiff was examined as P. W:

3. He admitted having engaged Syed Mehmood HusEain Shah as his counsel, but denied that the other defendants had also engaged him in Suit No. 334/1. He admitted having given statement in court on 29‑11‑1969 and his thumb‑impression over the same when confronted with the situation. He denied having agreed to the cancellation of the exchange mutation. From the defendants' side, Hassan Din appeared as D. W. 1 who relied on the statements given by the parties' in the earlier suit and produced its copies as Exh. D. W. 1/1. He further stated that exchange mutation was cancelled on the strength of the statement of the parties given in the earlier suit.

7. On the evidence of the parties, the learned trial court held that the plaintiffs are not the owners of the suit land and as such have no cause of action to bring the suit. It .was also held that the plaintiffs are estopped to bring the present suit. The suit was also held to be barred under section 11 of the Civil Procedure Code. The objection with regard to non‑joinder of neces sary party was rejected and the suit was held to be in proper form. The decree in Suit No. 334/1 and the attestation of Mutation No. 151 on its basis was held to be proper and legal. The plea of adverse possession was not accepted 'in view of the stand taken in the earlier suit. In this view of the matter, the suit was dismissed by the order dated 21‑7‑1973. 8: On appeal by the plaintiffs, the learned District Judge concurred with the findings of the learned trial court and dismissed the same.

9. Mr. Fida Muhammad Khan, Advocate, the learned counsel for the petitioner and Khawaja Abdur Rashid, Advocate, the learned counsel for the respondents present and beard.

10. The learned counsel for the petitioner raised the following contentions in support of the present revision petition:‑ (a) Firstly, that the order passed in Suit No. 334/1, dismissing the plaintiff's suit as withdrawn under Order XXIII, rule 1, C. P. C., by no means can be termed as a decree in favour of the plaintiffs and as such, the same cannot be given effect in the revenue record through the impugned mutation. (b) Secondly, that the findings of the Courts below that the suit is barred under the principle of res judicata, is illegal as no final adjudication between the parties with regard to the suit property has taken place. (c) Thirdly, that the property in that suit was not the one in the present suit, therefore, any decision given thereunder, cannot effect the right or title of the parties in suit property. (d) Fourthly, that at the time the exchange took place, the property in question was occupancy right which has now merged intb ownership on the abolition of the occupancy rights, petitioner having paid the required lagan for the same as required by law. (e) Fifthly, that an additional area as well Abadi of the petitioner was consolidated alongwith the disputed (old Khasra No. 81) property in the consolidation proceedings to which the plaintiffs were entitled as of right ; and (f) Lastly, that any compromise arrived at by the parties with regard to the land, not the subject‑matter of the suit, was to be enforced through specific performance and the compromise required to have been registered under the Registration Act.

11. In order to meet these contentions, I have to deal with them in the light of the facts and the evidence, referred to in the earlier part of this judgment.

12. In order to appreciate the view‑point of the learned counsel for the petitioner, the substance of the order of withdrawal and the circumstances in which the same was passed is of paramount importance, specially when the learned Judge in his order has clearly referred to it. This order can in no way be read in isolation of those facts which formed the basis for the withdrawal of the suit. The order of withdrawal was based on the statements of the parties and the Courts are, in such circumstances, bound to look into those statements of the parties in interpreting the order of withdrawal or dismissal of the suit in the light thereof. The sum and substance of the statement's of the parties further find mention in the order when it was directed by the learned Judge that the revenue authorities are directed to A cancel Mutation No. 1983 attested on 14‑7‑1942. This order was passed on the consent of the parties and in this view of the matter, the parties are bound by the same. This may not strictly be covered by the provisions of section 11 of the Civil Procedure Code, as the withdrawal of the suit in general terms will amount non‑existence of the suit at an earlier, stage as has been pointed by the learned counsel basing reliance on Baisnab Das Mohanta v. Nani Gopal Das and others (P L D 1963 Dacca 504). The plaintiffs them selves having stated in the earlier suit that the exchange transaction in fact and substance has never taken place and that the mutation if any, attested on their back is to be cancelled, cannot now turn back and make the muta tion of exchange as the basis of their title. The plea of the petitioner that he has made wrong admission in these proceedings or that be was not aware that those admissions would effect the land, not the subject‑matter of that suit, is of no consequence at all. Both the Courts below have rightly held that parties and their counsel very well understood what they were going to depose. It is true that admission of facts are only relevant and are not con clusive and, therefore, may be shown to be wrong. The question came for consideration before their Lordships of the Supreme Court to Ahfnad Khan v. Rasul Shah and others (PLD 1975 SC 311) where their Lordships observed :‑ "Therefore, an admission which is wrong in point of fact or is made in ignorance of legal right, has no binding effect on the person making it. This is however, subject to two well‑recognized exceptions ; First, such admissions become conclusive and are binding on a party, making them only if it amounts to a representation on a matter of fact made to the other party, who in consequence of such representation has altered its position. When admission is thus acted upon by the party to whom it is made, it operates as estoppel and becomes in a way conclusive, inasmuch as the party making it is not then permitted to show that the admission was wrong." In the circumstances of this case, the earlier suit having been withdrawn on the admission and representation of the plaintiff is fully covered by the E exceptions referred to b their Lordshi s and amounts to an estoppel and is binding on them.

13. The next contention of the learned counsel with regard to the non -registration of the alleged compromise, if it can be termed as such, is also of no substance. The title of the land in question already vested in the defendants, but for the exchange mutation. The plaintiffs having denied the factum of exchange and the attestation of the said mutation re‑affirmed the defendants' title in the suit property. Any statement to that effect made by the plaintiff does not require registration as it does not create any new right or title in favour of the defendants. Similarly, resort to Court for specific perfor mance is not required in this case.

15. The grievance of the petitioner that some other land exclusively owned by them was consolidated with the suit Khasra numbers and that the Courts below did not apply their mind to this aspect of the case has got some force. However, in the circumstances of the case when the Courts below have not acepted the factum of exchange alleged by the. plaintiffs, both the parties are restored to their original position which existed prior to the attesta tion of exchange mutation, as earlier stated, by no way will effect their own share and entitlement in the suit property.

16. The other grounds raised by the learned counsel for the petitioner were never raised before the lower. Courts nor the same have been raised in the grounds of revision. In this view of the matter, the same cannot agitated now for the first time.

17. With the above observations, this revision petition fails which is hereby dismissed. However, the parties are directed to bear their own costs. S. Q. Petition dismissed,