' On 8-5-1994, Khuda Yar, the predecessor-in-interest of the petitioners, filed a suit against the respondents. According to the plaint, the last male owner of the suit property was Bakhsha son of Rajab. On his death, the suit-land was to be mutated in favour of his son Habib but before the mutation could be attested, Habib died and the estate was mutated in favour of Mst. Muradan the widow of Bakhsha. The said Bakhsha had mortgaged 175 Kanals of land in favour of Bullah, etc. The said Mst. Muradan proceeded to mortgage the entire land limited estate in favour of Salehoon and Sultan sons of Wali Dad vide mortgage deed dated 11-9-1934 for a sum of Rs.9,000. Muradan then appointed one Raja as her general attorney who proceeded to sell the entire estate in favour of Muhammad, etc. Vide registered sale-deed dated 30-5-1954 for a consideration of Rs.20,000. The said vendee got the land redeemed. However, later on the said mortgagees filed a suit and get a decree for possession and the result is that now the said mortgagees are in possession of the entire estate. The vendees then filed a suit against the mortgagees seeking a declaration that the mortgage is against the agricultural custom. This suit was dismissed and the appeal was also dismissed. It was then stated that Mst. Muradan had died before the year 1939. Her daughter Mst.
Satbharai filed a redemption suit and also sought a declaration that the mortgage be declared to be against the agricultural custom. This suit was dismissed on 7-5-1940. It was declared that the mortgage is with consideration to the extent of Rs.1,200. She filed an appeal but died during the pendency of the same and the said Khuda Yar and his brothers Muhammad Shafi and Noor Khan became parties to the suit. Khuda Yar etc. Then proceeded to execute a release deed on 18-11-1944 in favour of the vendees Muhammad, etc. Admitting the sale to be for consideration and for legal necessity. In lieu they were to be given 1/100 share in the land. On the basis of this release deed the three brothers filed a suit against the vendees which was withdrawn. On 15-12-1951 Noor Khan and Muhammad Shafi (the brother of Khuda Yar) filed a suit seeking a declaration that they are the owners of the entire estate of Bakhsha along with Khuda Yar. This suit was conceded by one of the defendants, namely, Bhai Khan for himself and on behalf of Ghulam Muhammad minor defendant.
To this extent, the suit was decreed while the remaining suit was dismissed on 12-1-1954. Against this decree, an appeal was filed in this Court which was allowed on 12-1-1961 and the entire suit was decreed in equal shares in favour of the three brothers. Against this decree an appeal was filed by the vendees before the Honourable Supreme Court of Pakistan where Noor Khan and Muhammad Shafi who were the plaintiffs in the said suit entered into a compromise and on the basis thereof the entire suit was dismissed by the Honourable Supreme Court of Pakistan on 18-1-1972. According to Khuda Yar, since he was not a party to the compromise, he remained owner of 1/3rd share in the land. In the alternative he claimed that on the basis of the said release deeds, he is entitled to 31 Kanals and 15 Marlas of land. Then it is stated that the vendees filed a suit against the mortgagees which was decreed. The appeal of the mortgagees was dismissed by this Court and so was the case in the appeal with the Honourable Supreme Court. Then he states that when the said vendees commenced execution proceeding, Khuda Yar came to know the said facts. With these averments, he sought a declaration that on the basis of the judgment and decree of this Court dated 12-1-1961 he is the owner of the suit-land and otherwise on the basis of the release deed and the conceding statements, he is entitled to 31 Kanals and 15 Marlas of land and he sought a permanent injunction restraining the said vendees from executing the decree for redemption. The suit was contested by the said vendees stating that Khuda Yar was a party to the said earlier suit ultimately decided in the Supreme Court of Pakistan and as such the suit is not competent.
2. Now the learned trial Court rejected the plaint under Order VII, rule 11, C.P.C. Vide order dated 2- 10-1994. A learned A.D.J. , Sargodha, dismissed the first appeal on 6-3-2000.
3. Learned counsel for the petitioners has placed on record a copy of the proceedings dated 18-1- 1972 and judgment of even date in C.A. No.69 of 1966 to urge that Khuda Yar was not a party to the compromise and as such the suit could not have been dismissed on the basis of the said decision of the Honourable Supreme Court of Pakistan. Learned counsel for the respondent, on the other hand, contends that Khuda Yar was a party, in the appeal and all the proceedings in the Courts below and never questioned the said judgment in a manner prescribed by law. Further contends that after the said decision, as per the contents of the plaint itself the redemption suit was filed and has been decreed and Khuda Yar was put up by the mortgagees to defeat the decree for redemption.
4. I have gone through the available records. Now it appears that both the learned Courts below have gone by the contents of the plaint reproduced by me above. Before the learned ADJ the petitioners filed an application to permit them to place on record the judgment and proceedings of the Honourable Supreme Court of Pakistan but they were not allowed to do so. Be that as it may, I have examined the judgment and proceeding dated 18-1-1972 in C.A. No.69 of 1966 of the Honourable Supreme Court of Pakistan. Now as stated in the plaint, the said suit had been brought by the other two brothers, namely, Noor Khan and Muhammad Shafi while Khuda Yar was a defendant in the said case. It is also true that the entire sale in favour of Muhammad etc. Was set aside by this Court vide judgment dated 12-1-1961 in R.F.A. No.33 of 1964. Now Khuda Yar was respondent No.3 in the said appeal. He along with the respondents Nos.4 to 6 was proceeded against ex parte. On the said date the matter was taken up in presence of the appellants, the respondents Nos.l and 2 and respondents Nos.4 and 5. The compromise deed also narrates that it has been entered into between respondents Nos. 1 and 2 on the one hand and the appellants on the other. The said respondents have recelved Rs.30,000 from the said appellants and have agreed that the appeal be accepted and the suit of the plaintiffs be dismissed leaving the appellants to seek remedy against mortgagees. The Honourable Supreme Court recorded the compromise and passed the following order:-- "This appeal is accepted. The suit filed by respondents Nos.1 and 2 stands dismissed."
5. Now notwithstanding the fact that Khuda Yar was not a party to the compromise, the fact remains that he was a party in the appeal. He had been served and proceeded ex parte. The judgment is to the effect that the suit stands dismissed. The only consequence is that the sale in favour of Muhammad, etc. Vendees remained intact.
6. Now in the presence of the said judgment, by no stretch of imagination Khuda Yar can claim a declaration from a Civil Court that on the basis of judgment dated 12-1-1961 of this Court in R.F.A.
No.33 of 1964, he be declared to be the owner of the land, when the said judgment stands set aside and the suit in which the same was passed has been dismissed by the Honourable Supreme Court of Pakistan.
7. The civil revision is accordingly dismissed leaving the parties to bear their own costs.