MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---A short but ticklish point is involved in this revision application to the effect whether , in the wake of a decree passed by a competent Court of civil jurisdiction to the knowledge of plaintiffs, they can seek =another decree in respect of the same subject-matter at variance with the earlier decree without seeking the setting aside, modification or variation of the earlier decree in respect of same subject-matter and if any subsequent decree is passed whether it is sustainable in law and shall have the effect of modifying/varying the earlier decree in the absence of any relief sought for the modification/variation of the earlier decree.
2. Briefly stated the relevant facts are that plaintiffs Bahawal Khan and Rustam Khan filed suit No,138 of 1965, joining Mst. Bibi and Mst. Jannat both daughters of Bahadur Khan as co-plaintiffs with them, seeking declaration of their right, title and share in the property as well as partition, separate possession, mesne profits and accounts in respect of lands left by Ghulam Shah and Bahadur Khan bearing survey numbers shown therein. Subsequently, it was found that the interest of Rustam Khan and Bahawal Khan was inconsistent with the interest of Mst. Bibi and Mst. Jannat and, therefore, they filed application under Order XXIII, rule 1, C.P.C. Which reads as follows: "It is respectfully submitted on behalf of the plaintiffs Bahawal Khan and Rustam Khan that this Honourable Court will be pleased to allow the above named two plaintiffs to withdraw the suit against the defendants with permission to tile a fresh suit on the consideration of the following facts:
(1) That the defendants have filed an application before this Honourable Court under Order I, Rule 10, C.P.C., for ordering the plaintiffs for separation of two suits one for ladies and other for Rustam Khan and Bahawal Khan
(2) That the defendants alleged that the claim of the plaintiffs Nos.1 and 2 is inconsistent with the claim of plaintiffs Nos.3 and 4 and, therefore, there is likelihood of embarrassment and delay in the case.
(3) That in order to avoid delay and embarrassment the plaintiffs Nos. 1 and 2 may be permitted to withdraw the suit with permission to file a fresh suit in respect of their claim.
(4) That this order is in the interest of justice.
(5) It is, therefore, prayed that this Honourable Court would be pleased to allow the plaintiffs Nos.1 and 2 to withdraw the suit or claim with permission to file a fresh suit.
3. The above application was allowed with the following order on 16-2-1967: Plaintiffs' Advocate is present. Plaintiffs-1 and 2 have applied under Order XXIII, rule 1, C.P.0 for the withdrawal of their claim in the suit, with permission to file a fresh suit on the same cause of action. Defendant No,1 by Mr. Zaidi; Defendants Nos. 2 and 8 by Mr. Mirza; defendants Nos.4, 5, 6 and 7 are not served. Defendants who were represented by Mr. Mirza and Mr. Zaidi have no objection to the grant of application. I would, therefore, allow it. Suit by plaintiffs-3 and 4 as against defendants shall continue. Plaintiffs' Advocate desires to file amended plaint. Fixed it for the said purpose on 10- 3-1967.
4. Subsequently, amended plaint was filed, however, the subject matter of the suit i,e, land and the relief sought remained the same. In the original plaint it was asserted in para-19 as follows: "The plaintiffs Nos. 1 and 2 were and are in joint possession of the entire property of Ghulam Shah as mentioned in schedule `C'. The plaintiffs Nos. 1 and 2 are owners and have inherited the entire property of Ghulam Shah as his heirs and plaintiffs Nos. 3 and 4 are owners of half the property of Bahadur Khan having inherited it as daughters of Bahadur Khan while the plaintiffs Nos.1 and 2 are co-sharers as mentioned in schedule `G' attached herewith, which forms part of the plaint to the extent of -/1/- anna, besides the inherited property from Ghulam Shah. The plaintiffs Nos. 1 to 4 are the co-owners in survey numbers shown in the schedules 'A', 'B' and 'C' and they are in joint possession of the suit land along with defendants Nos.1 to 11.
5. It was further stated in para-20 as follows: The defendants Nos. 1 to 11 are co-sharer in most of the survey numbers of Ghulam Shah and Bahadur Khan and they are all denying the right, title, interest and share of the plaintiffs in the property of Bahadur Khan and Ghulam Shah, hence suit for declaration of their right, title and share in the property of Ghulam Shah and Bahadur Khan.
6. In the amended plaint after withdrawal of Rustam Khan and Bahawal Khan the remaining plaintiffs Mst. Bibi and Mst. Jannat alleged in paras. Nos.10, 11 and 12 as follows: That Ghulam Shah Jagirdar died in or about December 1963 leaving behind his moveable and immovable properties as shown in schedule 'C' which forms part of this plaint and that his properties according to Mohammadan Law is inherited by plaintiffs Nos.1 and 2 and defendants Nos.1 and 2 in equal shares (the defendants Nos.1 and 2 were Mst. Zainab and Mst. Siani daughters of Bahadur Khan).
(11) The plaintiffs Nos.1 and 2 who are in joint possession of the entire property of Ghulam Shah as' mentioned in schedule 'C'. The plaintiffs Nos.1 and 2 are owners having inherited the entire property of Ghulam Shah as his heirs and plaintiffs Nos.1 and 2 are owners of half 'the property of Bahadur Khan, and Ghulam Shah having inherited it as daughters of Bahadur Khan. The plaintiffs Nos.1 and 2 are co-sharer in the survey numbers mentioned in schedule `E' attached and which forms part of the plaint to the extent of -Ill- anna besides the inherited property from Ghulam Shah. The plaintiffs Nos.1 and 2 are co-owners in all the survey numbers shown in schedule 'A', 'B' and 'C' and they are in joint possession of the said land along with defendants Nos.l to 10.
(12) The defendants Nos. 1 to 10 are co-sharer in most survey numbers of Ghulam Shah and Bahadur Khan and they are all denying the rights, title, interest of Bahadur and Ghulam Shah, hence suit for declaration of their right, title and share in the property of Ghulam Shah and Bahadur Khan.
7. The above suit was decreed in favour of Mst. Bibi and Mst. Jannat by a preliminary decree dated 5-11-1968 and after report of the Mukhtiarkar Settlement Tando Muhammad Khan dated 1-3-1972, the final decree was passed in terms of preliminary decree and in terms of the report of Mukhtiarkar Settlement Tando Muhammad Khan. The decree further showed that the parties i,e, plaintiffs and defendants Nos.1 and 2 were related to each other being descendants of common ancestor. It was further held in the decree that the common ancestor of the plaintiffs and defendants was Hussain Khan Leghari of Brehmani sect. He was a Sardar and grantee of Jagir from the Mirs and recognized and accepted as a first class Jagirdar by the British as published officially under the memoirs by Major Fold Smith in the year 1888 by J. Pollen Assistant Commissioner in Sindh. Hussain Leghari holding Zamindari and Jagirdari land in village Hussain Khan Leghari District Hyderabad as detailed in schedule 'H'. According to schedule Ghulam Shah S/o Khuda Bux held 629-11 acres and Bahadur Khan S/o Khuda Bux held 427-37-1/2 acres, the detail whereof is given in Schedules 'A', 'B', 'C' `D' and `E'. It was further held that the plaintiffs Nos. 1 and 2 and defendants Nos.1 and 2 are daughters of Bahadur Khan who was the younger brother of Ghulam Shah, both of them were direct descendants of Hussain Khan in the fourth degree and the plaintiffs and the defendants are Shia Musalman by faith and their ancestors were Shia Musalman by faith and Shia Musalman law of inheritance was applied and followed so far as the inheritance of their properties was concerned and the same is also applicable to the present case.
8. It was further held that the Bahadur Khan, the father of plaintiffs Nos. 1 and 2 and defendants Nos.l and 2 died in or about the year 1953 leaving behind about 423-37-1/2 acres of agricultural land situated in Goth Hussain Khan Leghari Taluka Tando Muhammad Khan District Hyderabad, such properties were shown in schedule 'A'.
9. It was further declared that after the death of Bahadur Khan the properties were inherited by his descendants namely plaintiffs Nos.1 and 2 and defendants Nos.1 and 2 as daughters, three wives namely Mst. Siani, Mst. Mariyam and Mst. Batual and Ghulam Shah elder brother of Bahadur Khan.
Three wives of Bahadur Khan inherited -/2/- anna share in all i,e, -/-/8 paisas share each. Four daughters i,e, plaintiffs Nos. 1 and 2 and defendants Nos.1 and 2 inherits -/10/8 pies in all got -/2/8 each and the remaining -/3/4 share went to Bahadur Khan's elder brother Ghulam Shah Jagirdar and one of the wives of Bahadur Khan by name Mst. Siani who was daughter of Ali Muhammad Khan elder brother of Khuda Bux. Mst. Siani's brother by name Ghulam Muhammad died issueless.
Mst. Siani inherited the property from Ali Muhammad after his death and transferred her entire share to her husband Bahadur Khan. It was further declared that Ghulam Shah Jagirdar before his death was owner and holder of 629-11 acres of agricultural land in Zamindari rights after lapse of his Jagir rights under M.L.R. 64, details whereof was given in schedule '13'. It was further held that other immovable properties held by Ghulam Shah were also inherited by plaintiffs Nos. 1 and 2 and defendants Nos. 1 and 2 in equal share. It was also held that the plaintiffs Nos. 1 and 2 were and .Are in joint possession of entire property of Ghulam Shah as mentioned in Schedule 'C'. The plaintiffs Nos. 1 and 2 are owners having inherited the entire property of Ghulam Shah as his heirs and the plaintiffs Nos. 1 and 2 are owners of half the property of Bahadur Khan and Ghulam Shah having inherited it as daughters of Bahadur Khan. The plaintiffs Nos. 1 and 2 are co-sharers in survey numbers mentioned in schedule `E' to the extent of -/1/-. It was further declared that defendants Nos. 1 to 10 are co-sharers in most of survey numbers of Ghulam Shah and Bahadur Khan and are all denying right, title, interest and share of the plaintiffs-in the property of Bahadur Khan and Ghulam Shah. The defendants Nos.1 to 10 have not given the share of the produce from the agricultural land from the year 1964-65 of Rabi crop and which has been forcibly misappropriated by them. Ultimately, the lands were partitioned, details whereof were shown in the decree.
10. The plaintiffs Bahawal Khan and Rustam Khan after withdrawal of the suit and claim from suit No,138 of 1965 on 16-2-1967 again filed a Suit No,209 of 1967 against the defendants in the earlier suit and Mst. Bibi and Mst. Jannat the plaintiffs in Suit No,138 of 1965 were also arrayed as defendants.
11. Through this suit they sought relief of declaration that they were the heirs and owners of -/8/- annas in the entire property of deceased Bahadur Khan mentioned in schedule 'A' and that they be declared to be the owners of entire property of deceased Ghulam Shah as mentioned in schedule 'C'. They further sought declaration that alleged gift executed by Ghulam Shah on 10-11-1958 was void, illegal and not binding on them. They further sought partition of the properties shown in schedules 'A','13' 'and `E' and a decree for mesne profits and accounts.
12. The defendants Nos. 3 and 4 namely Mst. Bibi and Mst. Jannat filed their written statements, denied the claim of the plaintiffs Bahawal Khan and Rustam Khan and took plea that Mst. Zainab and Mst. Siani the defendants Nos. 1 and 2 were their sisters and blood relation and it was contended that no other plaintiff or defendant was related to them by blood. They also denied that all the parties to the suit had common ancestor.
13. On the pleadings of the parties the issues were framed and the parties led their respective evidence.
14. In cross-examination plaintiff Bahawal Khan admitted that in suit No,138 of 1965 they were plaintiffs with Mst. Bibi and Mst. Jannat and subsequently they withdrew their claim as plaintiffs and the suit was subsequently decreed in favour of Mst. Bibi and Mst. Jannat. The land was partitioned in the execution of said decree among all the Khatedars, but Bahawal Khan and Rustam Khan did not get any land in that partition. He further stated that he did not prefer any appeal against the decree in partition suit. The suit was ultimately dismissed for the reason that the plaintiffs were not entitled for the relief claimed. The respondents/plaintiffs Bahawal Khan and Rustam Khan preferred appeal, which was allowed, vide the impugned judgment and decree. The judgment and decree passed by the learned trial Court was set aside and the suit was decreed. A preliminary decree was passed in respect of partition, mesne profits and accounts and the final decree was to follow after the report of Nazir Civil Court who was appointed as Commissioner. Being aggrieved the applicants have filed this revision application.
15. I have heard Mr. Abdul Sattar Shaikh learned counsel for the applicants and Mr. Aijaz Ali Hakro, learned counsel for the respondents.
16. As observed in the opening part of this judgment, the short and ticklish point requiring consideration is, whether in the wake of a decree in suit No,138 of 1965 to the knowledge of the respondents/plaintiffs and without seeking setting aside, modification or variation of the decree, a second decree is sustainable in respect of the same subject-matter and whether the subsequent decree can have the effect of overriding the earlier decree.
17. I asked the learned Advocates for the parties to produce any case law on the point but both of them deterred their inability to produce any case law on this point. They stated that they are unable to lay hand on any case law directly on this point. Thus, it is a question of first impression.
18. I am of the considered opinion that one of the cardinal principles pertaining to the administration of justice is that with a final decree in respect of particular subject-matter the controversies should be laid to rest. The finality of the decree can be disturbed by way of appeal, revision, review or an application under section 12(2), C.P.C. And prior to the insertion of section 12(2), C.P.C., by way of separate suit. If any of these courses are not adopted no subsequent suit seeking relief, which has the effect of disturbing or interfering with the earlier decree is maintainable and decree passed if any, is not sustainable in law. The purpose of final determination of the issues through a final decree is to settle the issues and if this principle is not adhered to, the issues shall never attain finality and there would be chaos and anarchy and the concept of finality of decree shall be eroded and the decree passed by the competent Court of jurisdiction shall become redundant and otiose. In my humble opinion such a situation would be totally disastrous, shattering the entire warp and woof of the fabric of judicial system.
19. Mr. Abdul Sattar Shaikh, learned counsel for the applicants attempted to argue that subsequent suit was barred by principle of res judicata but I am not persuaded to agree with the submission.
Principle of res judicata is not applicable to the facts and circumstances of the present case for the reasons that Bahawal Khan and Rustam Khan were though initially plaintiffs in suit No,138 of 1965, but subsequently, they had withdrawn their claim and suit, and were not the parties to the final judgment and decree. The principles contained in Order II, Rule 2, C.P.C. And the Law of Estoppel is also not attracted. In fact the proper course open for the respondents Rustam Khan and Bahawal, was that after realizing that their interest was inconsistent with the interest of Mst. Bibi and Mst.
Jannat and there was clash of interest, they ought to have prayed for transposing Mst. Bibi and Mst.
Jannat as defendants or they would have requested for transposing themselves as defendants raising counter claim. The second course open to them was that after filing of the second suit they could have requested for consolidation of the two suits thereby prosecuting their case for determination of their rights vis-a-vis the plaintiffs Mst. Bibi and Mst. Jamaat. The consolidated issues could be framed and by adopting that course there would have been no situation of existence of one final decree in favour of Mst. Bibi and Mst. Jannat in respect of the suit property, which was also the subject-matter of second suit filed by them. By adopting either of these courses the passing of conflicting decrees could have been easily avoided. The decree so passed would have determined the right, title and interest of all the parties concerned including Mst. Bibi and Mst.
Jannat as well as Rustam Khan and Bahawal Khan. In any case if this course was not adopted then, notwithstanding, the fact that they were not parties to the earlier suit, they could challenge the decree in Suit No,138 of 1965 by way of appeal as an aggrieved person because it was adversely affecting their rights. Even if this course was not adverted to, Bahawal Khan and Rustam Khan could challenge the decree in Suit No,138 of 1965, by a separate suit, as by that time the section 12(2) was not inserted in C.P.C. By adopting any of such courses the setting aside or modification or variation in decree passed in Suit No,138 of 1965 could be prayed. As none of these courses were adopted and decree in suit No,138 of 1965 attained finality to the knowledge of Bahawal Khan and Rustam Khan whereby it was declared that the suit property was owned by Mst. Bibi and Mst.
Jannat and Mst. Zainab and Mst. Siani in equal shares and the properties were partitioned as well, such decree could not be disturbed by another decree to the contrary in any subsequent suit for the reason that it cannot be done. It militates against the principle of finalization of decree.
20. For the foregoing reasons I am of the considered opinion that the judgment and decree passed by the learned 1st Appellate Court is illegal and not sustainable in law, which is hereby set aside.
The judgment and decree passed by the learned trial Court dismissing the suit is hereby restored but for the reasons assigned above. The revision application is allowed accordingly and the suit stands dismissed with no order as to costs. After hearing learned Advocates for the parties on 8-4-2005 the revision application was allowed by short order. These are detailed reasons in support thereof.