' The judgment and decree, dated 6-2-1995 of the learned Additional District Judge, Sialkot, have been assailed in this revision petition whereby the judgment and decree, dated 20-5-1992 passed by the learned Trial Court were set aside and the suit filed by the respondents was decreed.
2. Facts necessary for disposal of this revision petition are noted hereunder. Vide registered sale- deed, dated 28-11-1966, Mst. Karam Bibi, alienated land measuring 9 Kanals and 5 Malras in favour of Muhammad Anwar and-4 others (They are not party to the present proceedings). On a suit filed by Mst. Fatima Bibi, daughter of Mst. Karam Bibi, based on the oral gift, a consent decree was passed on 19-7-1972 in favour of Mst. Fatima Bibi deceased, the predecessor-in-interest of the petitioners. On 14-11-1982, Muhammad Anwar etc. Challenged the aforesaid decreed, dated 19-7- 1972 in a suit. It was decreed vide judgment, dated 5-3-1985. The appeal of Karam Bibi, the petitioner and three daughters of Mst. Fatima Bibi was allowed by the learned Additional District Judge, Silakot, vide judgment and decree, dated 27-10-1985 on the ground that an application under section 12(2) of the Code of Civil Procedure and not a suit was maintainable. Muhammad Anwar etc. Approached this Court in C.R. No.2503- 1995 which was allowed vide judgment, dated 10-11-2000, the case was remanded to the learned trial Court and the suit filed by Muhammad Anwar etc., was directed to be treated as an application under section 12(2) of the Code of Civil Procedure. The matter is pending before the trial Court.
3. On 6-7-1988, the respondents filed a suit for declaration claiming 3/8th share in the estate of Fazal Ellahi, husband of Mst. Karam Bibi, as collaterals of Fazal Ellahi, on the ground that Mst. Karam Bibi had entered the estate of her deceased husband as limited owner, her estate terminated under the Shariat Application Act, 1962 and she was entitled only to 1/8th share in the estate of her husband. The consent decree was also attacked. The suit was dismissed on 20-5-1992. However, the appeal of the respondents was allowed vide judgment dated 6-2-1995 and the suit filed by them, was decreed. This revision is directed against the said order judgment and decree.
4. The contenders for the land in dispute are Muhammad Anwar, etc. Whose claim for 9 Kanals and 5 Marlas is based on the registered sale-deed, dated 28-11-1966 made in their favour by Mst.
Karam Bibi. The respondents claim 3/8th share as collaterals of Fazal Ellahi, while the petitioners are the daughters of Mst. Fatima Bibi, daughter of Karam Bibi who are asserting their right in the entire property in dispute on the basis of consent decree, dated 19-7-1972 in favour of their mother, Mst. Fatima Bibi.
5. The decision of the application under section 12(2) of the Civil Procedure Code, filed by Muhammad Anwar etc. May have a bearing on the controversy and it was so recorded in the order, dated 8-1-2003 of this Court. However, after examining the case in necessary details; I am of the view that this case could be decided and an appropriate decree passed without awaiting the decision of the application under section 12(2) of the Civil Procedure Code, because final decision of the said application is likely to take some time as it is still pending in the trial Court.
6. Grievance of the petitioners, primarily is, that the findings recorded by the learned first Appellate Court on Issues Nos.6 and 8 and in paragraph of the impugned judgment have the effect of setting aside the consent decree, dated 19-7-1972 in favour of their mother although the matter is still pending.
7. The learned counsel for the petitioners contends that in the written statement, the relationship of the respondents-plaintiffs with Fazal Ellahi, was denied but no issue was framed and the petitioners were prejudiced. It is next contended that the decree in favour of Mst. Fatima Bibi, the mother of the petitioners, is still intact which has created certain rights in favour of the petitioners and during the subsistence of the said decree, the suit filed by the respondents could not have been decreed. It is next contended that the suit filed by the respondents was barred by time and the petitioners had matured their possession into title by efflux of time. He next submitted that respondents Nos.11 and 12 had earlier, on 20-5-1967, filed a suit in which alienation made by Mst. Karam Bibi in favour of Muhammad Anwar and 4 others was questioned on the ground of customary restraints which was decreed on 17-3-1975. However, in the appeal the parties entered into a compromise as a result of which the suit filed by respondents Nos. 11 and 12, was dismissed on 24-5-1976 and, therefore, the fresh suit was not maintainable.
8. On the other hand, the learned counsel for the respondents contends that the question of relationship of the respondents with Fazal Ellahi, stands concluded by concurrent finding of the learned two Courts, and, therefore, no interference is called for. It is maintained that since Mst.
Karam Bibi had entered the estate of Fazal Ellahi as limited owner, she should not have lawfully made a gift in favour of Mst. Fatima Bibi, his daughter beyond her share. Further, respondents, were not party to the consent decree passed in the suit of Mst. Fatima Bibi and, therefore, they were not bound by it.
9. The submissions made by the learned counsel for the parties have been considered. The pedigree-table given by the respondents in para.3 of the plaint was not specifically denied as the petitioners-defendants, in their written statement, had pleaded ignorance. It was, however, averred that the plaintiffs-respondents had no relationship with Fazal Ellahi deceased. Although it is the duty of the Court to frame proper issues yet the parties are not absolved of their responsibility to claim proper issue at the proper stage. The plaintiff-respondents had, however, produced evidence in support of their relationship with Fazal Ellahi but the petitioners, in their evidence, did not examine any witnesses in rebuttal of the evidence of the plaintiffs-re spondents. The objection as to non-framing of the issue was not raised before learned first Appellate Court who observed that relationship of the respondents with Fazal Ellahi was not disputed. Perusal of this revision petition shows that no grievance has been made of non-framing of an issue as to the relationship of the plaintiffs-respondents with Fazal Ellahi. Rather in ground (e) of this revision petition, it was averred, "thus when the respondents/collaterals withdrew their previous declaratory suit on 24-5-1976, they were thereby precluded from instituting any fresh suit in respect of the said-land." Therefore, in fact the relationship of the plaintiffs-respondents, with Fazal Ellahi, is not a disputed fact.
10. Issue No.8 framed in the case was, "Whether the plaintiffs-respondents are owners up to the extent of 3/8th share in the suit-land". The learned trial Court, while answering the said issue, relied on Exh.P.2, a copy of the pedigree-table. Registers Haqdaran Zameen for the year 1985-86 and.
1969-70, Exh.P.3, and Exh.p.4, the judgment, dated 6-12-1946 of the Civil Court and came to the conclusion that Ahmed Din was the collateral of Fazal Ellahi. According to the pedigree-table given in para.3 of the plaint, Allah Yar and Allah Bakhsh were real brothers, Fazal Ellahi was the son of Allah Yar while Allah Bakhsh had three sons, namely, Nawab, Ahmed Din and Saddar Din. Siraj Din, Charagh Din and Lal Din were the sons of Ahmed Din while other plaintiffs were the descendents of Saddar Din son of Allah Bakhsh. It may also be noted here that in the pedigree-table described in para.3 of the A plaint, name of Muhammad Hussain, plaintiff No.1 son of Muhammad Din is missing.
He, however, appeared as P.W.4, and corroborated this pedigree-table by describing it in details including himself in his sworn statement. It may also be noted that P.W.4 was not cross-examined at all on the question of relationship of the respondents with Fazal Ellahi.
11. In the circumstances, therefore, non-framing of specific issue as to relationship of the plaintiffs- respondents with Fazal Ellahi was no consequence particularly when- the controversy was covered by Issue No.8.
12. The other contention of the learned counsel for the petitioners was based on the consent decree, dated 19-7-1972 in favour of their mother. The learned trial Court was of the view that the consent decree in favour of the mother of the petitioner was a hurdle in the way of the plaintiffs.
However, the learned first Appellate Court, while answering Issue No.6 "Whether defendants Nos.2 to 4 are owners in possession of the suit property? OPD", came to the conclusion that Karam Bibi was owner to the extent of 1/8th share in the estate of said Fazal Ellahi and, therefore, could not transfer by way of consent decree anything beyond her share i.e. 1/8th. Therefore, share of the respondents-plaintiffs will remain intact. This finding of the learned first Appellate Court amounting to setting aside the consent decree in favour of petitioner's mother although, it was also subject- matter of the application under section 12(2) of Civil Procedure Code filed by Muhammad Anwar etc. And, it could be anybody's guess as to what is going to be the outcome of that litigation. May be that the consent decree is upheld and the decision may have its consequences. I have also noticed that vendees from Mst. Karam Bibi, were not even party to the suit. Thus, the learned first Appellate Court foreclosed the decision of the pending application of Muhammad Anwar etc. For recalling the consent decree, dated 19-7-1972 in favour of Mst. Fatima Bibi.
13. As far as objection as to limitation is concerned. The contention of the learned counsel for the petitioners has no merit because (subject to the final outcome of the application for setting aside the decree, Q dated 19-7-1972) the plaintiffs-respondents would in-interest. Therefore, the question of limitation does not arise.
14. The earlier suit was filed by respondents Nos.11 and 12 . The plaint was placed on the record as Exh.D.2. The said suit was dismissed as withdrawn on the basis of written compromise between respondents Nos. 11 and 12 on the one hand and Muhammad Anwar, Aslam and Iqbal, who were co-defendants in the said suit on the other. Copy of the order, dated 24-5-1976 was placed on the record Exh.D.4. The effect of the compromise was that respondent Nos.11 and 12 abandoned their claim against Muhammad Anwar and two others who were party to the compromise in accordance with the provisions of Order XXIII, rule 1 of the Civil Procedure Code. Mst. Karam Bibi was party to the suit but was deleted in appeal at the time of the compromise. Thus, respondents Nos.11 and 12 were not precluded to claim their share in the estate of Fazal Ellahi and section 11 of the Code of Civil Procedure was not applicable. In any case the decree in the suit of the respondents will enure to the benefit of legal heirs of Fazal Ellahi.
15. For what has been stated above, this revision petition is partly allowed. The impugned judgment of the learned first Appellate Court is modified in terms that the right of the respondents to inherit the estate of Fazal Ellhi, will be dependent on the final decision of the application made by Muhammad Anwar etc. For recalling the consent decree, dated 19-7-1972. This course has been adopted by exercising power under rule 33 of Order XLI of the code of Civil Procedure to avoid conflict of decrees. Further, Muhammad Anwar etc. Were not party to these proceedings at any stage and will not therefore, be bound by the decree in favour of the respondents.
16. ' No order as to costs.