IFTIKHAR HUSSAIN CHAUDHRY, J.--- The petitioners instituted a suit for declaration that they as well as defendants Nos. 8 to 16 are owners of land measuring 1 kanal, 13 marlas bearing Khasra No. 1311 situate in the revenue estate of Mirza Tehsil and District Attock; that defendants Nos. 1 to 7 legal representatives of Muhammad Ashraf had no concern whatsoever with the land described above and that Mutation No. 2590, dated 7.9.1973 whereby change of possession under judgment and decree dated 21.3.1972 took place was incorrect, against law and facts and was ineffective and void.
2. The suit was resisted by the defendants/respondents Nos. 1 to 7. Written statement was field on behalf of them and numerous objections relating to maintainability of the suit, limitation, res judicata, estoppel and non-joinder of necessary parties were raised. It was stated by the defendants that they were owners in possession of the suit land and that plaintiffs had no concern with the same. It was stated that Zikri Khan and others had filed a suit for declaration regarding the suit land against Amir Muhammad Khan and others which was decided on 24.2.1970 and it was declared that defendants in that suit were owners in possession of the suit land and that subsequently Muhammad Ashraf the predecessor-in-interest of all the answering defendants purchased the rights pertaining to the suit land from Am'ir Muhammad Khan etc. It was further stated that Muhammad Ashraf filed a suit against Amir Khan for possession of the suit land which was decreed in his favour on 21.3.1972. According to defendants the plaintiffs were parties to both the suits decided on 24.2.1970 and 21.3.1972 and the decrees passed were binding on the plaintiffs.
3. The pleadings of the parties gave rise to the following issues:-
(1) Whether the plaintiffs and defendants Nos. 8 to 16 are owners-in-possession of the suit land?
(2) Whether mutation No. 5290, dated 7.9.1973 in favour of predecessor-in-interest of defendants Nos. 1 to 7 is based on fraud and is illegal void and ineffective against the rights of plaintiffs and defendants Nos. 8 to 16?
(3) Whether the suit is hit by principle of res judicata?
(4) Whether the suit is time-barred?
(5) Whether the suit cannot proceed in its present form?
(6) Whether the plaintiffs have no cause of action?
(7) Whether the suit has not been properly valued for the purposes of Court-fee and jurisdiction, if so what is correct valuation?
(8) Whether the suit is bad for non-joinder of necessary parties?
(9) Whether the plaintiffs are estopped by their words and conduct to file this suit?
(10) Whether the defendants are entitled compensatory costs u/S. 35-A, CPC?
(11) Relief.
4. Abdul Razzaq, plaintiff appeared as PW1. He stated that the plaintiffs were owners in possession of s4it land and that they were not party to the earlier suits and that they were not aware of the institution of the suits nor they knew about any mutation having been made regarding the suit land. It was submitted by him that the defendants were not in possession of the suit land. In cross-examination he admitted that Haq Nawaz was his brother whereas Muhammad Nawaz was not his brother. He admitted that Feroza was his mother.
He admitted that out of the defendants Nos. 2 and 3 one was older to him and the other was younger to him. The plaintiffs tendered in evidence copies of jamabandi for the years 1987-88, 1975-76, 196364 as Ex.P1 to Ex.P3, copy of Civil Court register No. 1 as Ex..P4 and copy of mutation No. 5290 as Ex.P5. The defendants examined Manzoor-ul-Haq as DW1, and Muhammad Afsar appeared as DW2. They stated that the suit land was in possession of Amir Muhammad Khan, and Zakri Khan and others filed a suit against Amir Muhammad Khan and thereafter their predecessor-in-interest Muhammad Ashraf filed a suit against Amir Muhammad Khan which was decreed in 1972. He admitted that suit land was not being cultivated since 1988.
Besides the oral evidence the defendants tendered in evidence copy of judgment in suit titled Zakri Khan, etc. v. Amir Muhammad Khan dated 24.2.1970 mark 'A', copy of register of Civil Court regarding said judgment as Ex.D2, copy of mutation No. 5290 as Ex.D3, copy of roznamcha waqati as Ex.D4, copy of extract from record of rights for the years 1975-76 as Ex.D5, copy of crop survey report as Ex.D6, copy of mutation No. 3361 as Ex.D7, copy of mutation No. 3362 as Ex.D8, application for obtaining the copy of judgment and decree dated 24.2.1970 as Ex.D9.
5. After conclusion of the hearing of the suit the learned first Court decided issue No. 1 against the plaintiffs and held that the plaintiffs have failed to prove their title as well as possession over the suit land. Issue No. 5 was decided against the plaintiffs and it was observed that plaintiffs were required to file an application u/S. 12(2), CPC instead of filing the present suit. Issues Nos. 2, 4 and 6 were decided against the plaintiffs. Issues Nos. 7, 8, 10 were decided against the answering defendants. Issue No. 9 was decided in favour of answering defendants and under issue No. 3 it was held that previous suit operated as a res judicata between the parties. In view of the findings the suit filed by the petitioners/plaintiffs was dismissed on 24.2.1993. The petitioners/plaintiffs filed an appeal before the District Judge, Attock. The District Judge, Attock endorsed the views of the learned first Court on various issues and dismissed the appeal filed by the petitioners. The petitioners whereafter submitted the present petition which was admitted to regular hearing on 27.2.1995. Learned counsel for the parties have been heard in the matter.
6. Learned counsel for the petitioners submitted that the plaintiffs were not a party to the suit which was decided on 24.2.1970 and similarly they were not irnpleaded in the subsequent suit either and as such they has no knowledge of both the decrees or the mutation No. 5290 which was challenged by the plaintiffs and that both the learned lower Courts had grossly misread the oral as well as documentary evidence. It was contended that the revenue record placed on 'record clearly showed that the petitioners and their other co-sharers are still recorded as owners of the disputed land as was evident from Ex.P2 as well as Ex.D5. It was contended that the latest revenue record showed that suit land was classified as Banjar Qadeem' and by nature it would be deemed to be in possession of the owners whose name find mention in the column of ownership. It was submitted that findings of both the lower Courts that petitioners have been unable to show their title or possession on the suit land is, therefore, without any basis. It was contended that Abdul Razzaq plaintiff had categorically stated that the plaintiffs came to know about the decrees as well mutation No. 5290 about a month prior to the institution of the suit and this statement was not controverted by the defendants and the suit was thus within time and finding of the lower Courts regarding limitation was also misconceived. It was further argued that the learned lower Courts have banked heavily on mark `A' for holding that Feroz Khanum daughter of Sainchi Khan as well as other plaintiffs were party to earlier proceedings whereas names of none of the plaintiffs finds mention in mark `A' and Feroze Khanum daughter of Sainchi Khan was different person from Feroze Jan widow of Noor Elahi, mother of the plaintiffs. It was contended that suit was filed essentially on the ground that the judgments and decrees and the mutation were passed behind the backs of the plaintiffs and they were neither a party to those proceedings nor knew anything about that till abut a month before filing of the suit and as such there was no need to file an application u/S. 12(2), CPC and suit submitted was maintainable.
7. Learned counsel for the contesting respondents Nos. 1 to 7 on the other hand submitted that the documentary evidence on record showed that the defendants were in possession of the suit land and that the plaintiffs were never in possession of the suit land. It was contended that Muhammad Ashraf predecessor-in-interest of the respondents was in possession of the suit land since 1972 and as such the suit instituted by plaintiffs on 20.2.1992 was hopelessly time-barred. It was further contended that the plaintiffs have urged a ground of fraud in the plaint and as such application u/S. 12(2), CPC should have been field by the plaintiffs. It was argued that mark 'A' which was proved to be copy of judgment dated 24.2.1970 showed Haq Nawaz and Muhammad Nawaz sons of Noor Elahi as two of the plaintiffs and Feroze Khanum was also a plaintiff and as such the plaintiffs fully knew about the institution of previous suit and as such the present proceedings were hit by the principle of res judicata.
8. A perusal of judgments of both the learned lower Courts shows that they have relied on mark 'A' to conclude that three of the plaintiffs were party to previous suit which was decided in 1970.
Similarly, they have relied upon the entries contained in the record of rights to conclude that Muhammad Ashraf was in possession of the suit land and that the plaintiffs had failed to prove their title as well as possession on the suit land. The extract from the record-ofrights relating to the years 1987-88 Ex.P1 and extract of record-of-rights relating to the years 1975-76 Ex.P2 which is also Ex.D5 the column of ownership contains the name of owners, Feroze Jan daughter of Sainchi, Amir Alam, Amanat etc. Sons of Jalal, Hakam Jan daughter of Jalal, Hakam Jan etc. Daughters and sons of Zakri Khan, Ajaib Sultan wife of Nazir, Feroze Khanum, widow of Noor Elahi, Haq Nawaz, Muhammad lqbal, Abdul Razzaq, Muhammad Ashraf sons of Noor Elahi. The name of Feroze Khanum widow of Noor Elahi originally is mentioned as Fer Khanum which was corrected subsequently as Feroze Khanum. Similarly, in the column of cultivation the progeny of Jalal are shown to be in cultivating possession to the extent of half land bearing khasra No. 1312 and 1311 and half of the land is shown in the possession of progeny of Noor Ellahi and it has been mentioned that they are in possession of the land through Muhammad Ashraf. The latest Jamabandi relating to the years 1987-88 classifies the land as `Banjar Qadeem'. Therefore, revenue record exclusively shows the plaintiffs to be owners of the suit land alongwith other co-sharers. Though their possession on the suit land has been shown through Muhammad Ashraf but land being `Banjar Qadeem', the possession thereof shall be deemed to be that of all the co-sharers. In these circumstances title as well as possession of the plaintiffs alongwith co-sharers was amply proved the copy of extract of right Ex.P3 shows the plaintiffs as well as co-sharers to be the owner of the suit land. Similarly, Jalal and Noor Ellahi were shown to be in possession of khasra No. 1448 (which was later bifurcated into khasra No. 1312) through Alam Khan and Kala sons of Gulab who ere in possession through sons of Muhammad Khan as tenants-at-will. Column No. 8 also carries the arrangement of payment of lagaan as 'Bata' Bihassa Nisfi'. Abdul Rahim and Abdul Karim sons of Muhammad Khan were at the most tenants at will. Similarly, sons of Kala Khan was also shown as tenants at will. In the earlier suit filed by Zakri Khan etc., Abdul Karim and Abdul Rahim sons of Amir Muhammad Khan were not a party and only legal heirs of Kala Khan were impleaded as party.
Therefore, whatever those proceedings were between Zakri Khan and Amir Muhammad Khan, the ownership rights or the right to possess the land without payment of lagaan were not transferred to Amir Muhammad Khan or for that matter Malik Muhammad Ashraf predecessor-in-interest of defendants /respondents Nos. 1 to 7. The entry in the revenue record made subsequent to passing of the decree in the years 1970 and 1972 appears to be contrary to record and was obviously not sustainable.
9. Both the learned lower Courts had held that Feroze Khanum as well as plaintiffs Nos. 1, 2, 3 were parties to previous proceedings and for the purpose they relied upon mark 'A'. In mark 'A' names of Feroze Jan daughter of Sainchi Khan as plaintiff No. 4, Haq Nawaz and Muhammad Nawaz sons of Noor Ellahi find mention. If the record of rights Ex.P2 and Ex.D5 are seen the column of ownership contains name of Mst, Feroze Jan daughter of Sainchi Khan as having 144 shares at top of the column and name of Feroze Khanum (Fer Khanum) widow of Noor Ellahi alongwith Haq Nawaz, Muhammad lqbal, Abdul Razzaq, Muhammad Ashraf sons of Noor Ellahi at the bottom of column.
Ferzoe Jan daughter of Sainchi appears to be belonging to family of Lal who was a different co- sharer and Feroze Khanum belonged to a different family and has been given different shares and as such the person who is mentioned as plaintiff No. 3 in mark 'A' as Mst. Feroze Jan is obviously a different person than the present plaintiff, the mother of Abdul Razzaq and others. The learned lower Courts were misled by similarity of name alone and had they examined the record with proper care, it would have made it very clear that widow of Noor Ellahi was not party to earlier proceedings as has been held by them.
10. Relying upon mark 'A' and Goshwara of Civil Court Ex.D2, both the learned lower Courts held that plaintiffs were party to earlier litigation. No doubt name of Haq Nawaz and Muhammad Nawaz sons of Noor Ellahi is mentioned as plaintiffs Nos. 12 and 13 in the copy of judgment mark 'A' but the record of rights does not show that Muhammad Nawaz was son of Noor Ellahi. Similarly, the record of right shows Muhammad lqbal, Abdul Razzaq and Muhammad Ashraf as sons of Noor Ellahi but they were not impleaded as plaintiffs in the earlier suit. Name of Haq Nawaz does find mention but other sons of Noor Ellahi did not participate in the earlier proceedings. Abdul Razzaq as PW1 had stated his age to be 331/2 years. His statement was recorded on 7.2.1993 before learned lower Court and as such in the year 1969 when the suit was filed or 1970 when the same was decreed, age of Abdul Razzaq son of Noor Ellahi was about 9/10 years. Obviously he could not have sued in his own name. The witness had also stated that one of the plaintiffs was elder to him and other was younger to him, meaning thereby that another son of Noor Ellahi was also not of age in 1970 to have independently filed the suit. The record in this respect was also grossly mis-read by both the learned lower Courts. As a matter of fact there was nothing on record which showed much less proved, that the plaintiffs were party to civil suits decided in 1970 or 1972 and findings recorded by both the lower Courts are totally erroneous.
11. Since the record did not reveal that the plaintiffs were parties to suits instituted earlier in the matter, the present suit could not have been said to have been hit by the principle of res-judicata.
As a matter of fact the foundation on which the learned lower Courts built their edifice was non- existent and they had drawn wrong conclusions on all the issues. The plaintiffs had challenged that since the mutation was made on the basis of decrees passed behind their back and that the mutation was ineffective qua their rights as they were not associated with any proceedings while the same was sanctioned, under the circumstances, gave them a valid right of action and suit was maintainable and on the strength of evidence produced by the plaintiffs, the same deserved to be decreed.
12. For the foregoing reasons, the civil revision petition is allowed. The judgments and decrees passed by the learned lower Courts are set aside as having been passed as non-reading of material on record. The suit filed by the plaintiffs stands decreed as prayed for except to the extent of Haq Nawaz defendant. The parties to bear their own costs.
Civil .