' Petitioners/plaintiffs filed Suit No,68/1 on 7-2-1993 in the Court of learned Civil Judge, Nowshera seeking declaration that they were owners of land measuring 43 Kanals, 9 Marlas, 2 Sarsaies, out of which they claimed to be owners in possession of land measuring 36 Kanals, 6 Marlas, 2 Sarsaies on the basis of adverse possession and 6 Kanals, 3 Marlas purchased by them vide registered sale-deed No,213, dated 26-3-1945. The said suit was resisted by respondents/defendants by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties partially decreed the suit to the extent of 6 Kanals, 3 Marlas vide judgment and decree dated 15-1-1996. Being not satisfied with the judgments and decrees of the trial Court the petitioners filed appeal in the Court of learned District Judge, Nowshera which was dismissed vide judgment and decree dated 15-1-N97. Being not contented with the judgments and decrees of the Courts below the petitioners have filed the revision petition in hand.
2. M/s. Mir Adam Khan and Mazullah Barkandi, Advocates the learned counsel representing the petitioners argued that Mst. Mumtaz Begum had earlier filed Suit No,86/1-Nim in the Court of learned Civil Judge, Nowshera claiming to be the owners of half share in land measuring 43 Kanals, 1 Marla, 3-1/4 Sarsaies. The petitioners namely Hamesh Gul and Musali sons of Azim Khan were arrayed as defendants Nos.2 and 3 in the said suit. The said suit was resisted by the defendants by filing written statement. The learned trial Court had dismissed the said suit vide judgment and decree dated 6-2-1979. Appeal filed by her was also dismissed vide judgment and decree dated 23-7-1981. She filed civil revision before this Court which was allowed vide judgment and decree dated 12-1-1986 and the case was remanded back to the learned trial Court for decision afresh. The learned trial Court once again vide its judgment and decree dated 18-3-1989 dismissed the suit.
Mst. Mumtaz Begum filed appeal before the learned District Judge, Nowshera which was dismissed for non-prosecution vide order dated 4-1-1990. Thereafter she did not agitate the matter any more.
The first round of litigation between the parties was over.
3. They further argued that while deciding Suit No,86/1-Nim filed by Mst. Mumtaz Begum the learned trial Court while giving its findings on Issue No,5 had held that the petitioners who were defendants Nos.2 and 3 in the said suit were in adverse possession of the property in dispute. The said findings had become final. It was on the basis of said findings that the petitioners filed suit in hand (No,68/1). Out of the claimed land they had purchased land measuring 6 Kanals, 3 Marlas through registered Sale-deed No,213 dated 26-3-1945 and Mutation No,922 was attested on the . Basis of said sale-deed in their favour on 8-8-1945. Since in the suit filed by Mst. Mumtaz Begum the petitioners had been held to be in adverse possession, therefore, the said decision was binding on all the defendants. Reliance in this regard was placed on PLD 1983 SC 344, PLD 1963 W.P. (Peshawar)
199 and AIR 1932 PC 161.
4. On the other hand Mt. Abdul Bari Khan Khalil, Advocate the learned counsel for respondent No,1 argued that respondent No,1 was widow of Roshan Khan and was daughter of Azim Khan, who was in adverse possession, who has not only inherited from Azim Khan but has also inherited from Roshan Khan as well. She was in possession of the property in dispute, hence her rights are to be protected.
5. Mr. Sheikh Wazir Muhammad, Advocate the learned counsel representing respondents Nos.2 and 3 argued that the judgment cited by the learned counsel for the petitioners are not applicable to the case in hand because there is no conflict of interest between the defendants in the previous Suit No,86/1/Nim.
6. It was also argued that on the one hand the petitioners have sought for declaration of their title and on other hand they based the same on the basis of adverse possession. Both the self- contradictory stands, therefore, no decree could be granted on the basis of the same. Reliance was placed on 1994 SCM R 1637.
7. I have heard the learned counsel for the parties and perused the record.
8. The petitioners/plaintiffs have sought declaration that they were owners in possession of land measuring 34 Kanals, 7 Marlas, 8 Sarsaies on the basis of adverse possession. No doubt in a suit filed by Mst. Mumtaz Begum No,86/1/Nim the petitioners/plaintiffs were defendants Nos.2 and 3, the learned trial Court while giving its findings on Issue No,5 had held that petitioners were in adverse possession of the property which was in dispute. In the said suit, but the suit filed by Mst. Mumtaz Begum (No,86/1/Nim) was dismissed vide judgment and decree dated 6-2-1979. Appeal filed by her was also dismissed vide judgment and decree dated 23-7-1981 and revision petition filed by her was dismissed for non-prosecution on 4-1-1990.
9. The question that arises here is as to whether the petitioners/plaintiffs could seek declaration of land measuring 34 Kanals, 7 Marlas, 8 Sarsies on the basis of adverse possession, answer to this question is in negative. Suit for declaration cannot be maintained on the ground of adverse possession,' such plea, if any, available to the defendant and can be raised as a shield. Reliance in this regard is placed on Mst. Allah Rakhi through Attorney v. Aftab Khalil and 12 others 1999 M LD 595.
The suit of the petitioners/ plaintiffs with regard to land measuring 34 Kanals, 7 Marlas, 8 Sarsaies was, therefore, not maintainable and the same has rightly been dismissed by the Courts below.
10. So far as the claim of the petitioners/plaintiffs with regard to land measuring 6 Kanals, 3 Marlas is concerned, this piece of land (6 Kanals, 3 Marlas) was transferred in the name of Azim Khan, predecessor-in-interest of the petitioners/ plaintiffs on the basis of registered Sale-Deed No,213 registered in the Office of Sub-Registrar on 26-3-1945. Mutation No,922 was attested on the basis of said sale-deed in favour of the predecessor of petitioners on 8-8-1945, which was incorporated in Revenue Record as is clear from Fard Jamabandi for the year 1941-42 Exh.P.W.1/4 and for the year 1947-48 Exh.P.W.1/5. Even otherwise the factum of sale of land measuring 6 Kanals, 3 Marlas through the above mentioned registered sale-deed has been admitted by respondents/defendants. The Courts below have rightly appreciated the evidence available on record as well as the legal position.
' I have not been able to find out any misreading/non-reading of evidence or any illegality or any material irregularity or any jurisdictional error or defect warranting interference in the impugned concurrent findings of the Courts of competent jurisdiction. Resultantly, the revision petition is dismissed with no orders as to costs.