' JAWWAD S. KHAWAJ , J.---The petitioners/plaintiffs filed a declaratory suit on 20-2-1989 claiming title to the suit land` measuring 63 Kanals 3 Marla s. Their case was that their father, namely, Sher Muhammad was the owner of the land and had mortgaged the same in favour of the respondents vide Mutation No,206 sanctioned on 18-5-1963. It was contended that the respondents had thereafter fraudulently fabricated the sale-deed, dated 16-8-1972 and had obtained its registration.
2. The defence set up by the respondents/defendants was that the disputed sale deed (Exh.D-1) had, in fact, been executed in their favour by Sher Muhammad. They also produced on record a plaint earlier filed by Nazir Ahmad Javed, Muhammad Ali and Shahadat Ali (petitioners Nos. 2, 3 and 4) sons of Sher Muhammad wherein these three petitioners had, through a consent order, acknowledged the validity of the aforesaid sale deed.
3. The learned Courts below have proceeded on the premise, firstly, that the aforesaid suit operated as res judicata in the pres nt case and, secondly, on the ground that the present suit, which was filed on 20-2-1989 challenging the aforesaid sale-deed, dated 16-8-1972, was time barred.
4. Both premises noted above are not legally tenable in the circumstances of the present case.
Firstly, it is to be noted that Sher Muhammad was very much alive at the time of the earlier suit and had, in fact, been impleaded as defendant No,6 therein. The aforesaid suit was withdrawn by petitioners Nos. 2, 3 and 4 on the basis of statements of the parties but Sher Muhammad, admittedly, did not make any statement and nor was he, in fact, present when the earlier suit was withdrawn. The record does not show that Sher Muhammad had been served in the earlier suit or was aware of its filing. In these circumstances, it is quite obvious that petitioners Nos.2, 3 and 4 had no cause of action and had no nexus whatsoever with the suit property. Therefore, the suit filed by them could not possibly operate as res judicata in the present proceedings.
5. Secondly, the suit of the petitioners was not time barred because the petitioners other than petitioners Nos.2, 3 and 4 asserted that the sale deed was fraudulent and forged and that they had become aware of it only when they had made an attempt to repay the mortgage money and the respondents/defendants had informed them of the existence of the sale deed. The learned Courts below have primarily been motivated in deciding the question of limitation against the petitioners on the basis of the earlier suit filed by petitioners Nos.2, 3 and 4 wherein the sale deed, dated 16-8- 1972 has been mentioned. The date on which the petitioners got knowledge of the disputed sale deed, was a question of fact. The date of knowledge alleged by the petitioners/plaintiffs is supported by the evidence on record. The mere filing of an earlier suit by petitioners Nos. 2, 3 and 4 mentioning the disputed sale deed therein, does not prove that Sher Muhammad had knowledge of the said sale deed, particularly, in view of the evidence which shows that petitioners Nos, 2, 3 and 4 had no right in the suit property and Sher Muhammad, who had been arrayed as defendant No,6 in their suit, had neither been served nor was otherwise shown to have had knowledge of the sale deed. Additionally, the very nature of the earlier suit and the manner in which it was withdrawn, suggests an absence of bona fides.
6. In the foregoing circumstances, the two grounds which prevailed with the learned Courts below for dismissing the suit of the petitioners, are not legally, sustainable and the same are, therefore, set aside.
7. Coming next to the main question as to whether Sher Muhammad had, indeed, sold the suit property to the defendants, it is noteworthy that the P.Ws. Produced by the petitioners clearly testified on oath that no such sale had been effected. It was, therefore, incumbent upon the respondents/ defendants to produce evidence to prove the disputed sale deed. This they have not done. When learned counsel for the respondents was asked to explain whey the marginal witnesses to the sale deed were not produced, he could not give any justification for this material omission. He has relied on the testimony of Mukha (DW-1) who is one of the defendants. His testimony, however, cannot be given weight in view of the fact that the onus of proving the disputed sale deed had shifted to the defendants and it was thereafter for them to produce affirmative evidence for proving that the sale deed had, in fact, been executed by Sher Muhammad.
8. In the foregoing circumstances, the suit to the extent of petitioner No,1, namely, Allah Bukhsh and petitioners Nos. 5 to 8 is decreed. In view of the fact that the petitioners Nos. 2, 3 and 4, namely, Nazir Ahmed Javed, Muhammad Ali and Shahadat Ali had earlier filed a suit accepting the validity of the disputed sale deed and also did not appear in the present suit to dispute the filing of their earlier suit and the stance adopted by them therein, the dismissal of the suit to their extent is affirmed.
9. The petitioners Nos. 1 and 5 to 8 shall also be entitled to their costs throughout.