' JAWWAD S. KHAWAJA, J.---The petitioners/plaintiffs impugn the appellate decree dated 16-9- 2004 whereby the decree of the learned trial Court dated 15-1-2004 granting the declaration of title sought by the petitioners, has been modified.
2. The contesting parties are four brothers, namely, Faiz Muhammad, petitioner No,1, Sardar Muhammad deceased, petitioner No,2 (now represented by his legal representatives), Sher Muhammad, respondent No,1 and Wali Muhammad deceased (predecessor-ininterest of respondents Nos.3 to 9).
3. It is the case of the petitioners that land measuring 7 acres, 6 Kanals and 6 Marlas in Chak No,720 /GB was allotted to the four brothers in 1956, initially under the Guzra Scheme. It was then re- named as the Ejected Tenants Scheme. The allotment chit (Exh.D.2) dated 26-9-1956 was made in the name of Sher Muhammad as head of the family. Subsequently, the four brothers jointly moved an application (Exh.P.2) before the District Commissioner/Collector, Lyallpur, for grant of proprietary rights. Here it is noteworthy that the application was moved by the four brothers jointly and was allowed by the Deputy Commissioner/ Collector vide order dated 22-7-1963.
4. Thereafter, the brothers started cultivating the land as is evident from the Jamabandies and Khasra Girdawaries exhibited on record. Almost twenty-seven years after the order granting proprietary rights to the four brothers, Sher Muhammad, respondent No,1, filed an application seeking review of the aforesaid order. The Collector allowed the application vide order dated 12-7- 1993 and reviewed the earlier order of 22-7-1963.
5. The petitioners/plaintiffs have impugned the order of the Collector dated 12-7-1993, inter alia, on the ground that it was passed without notice to the petitioners although the petitioners were clearly entitled to notice being beneficiaries of the earlier order dated 22-7-1963 (Exh.P.2).
' The petitioners also asserted their claim as joint owners of the suit property.
6. The suit of the petitioners was resisted by respondent No,1, Sher Muhammad. The learned trial Court framed five issues including that of relief. All issues were decided in favour of the petitioners.
The order of the Collector dated 12-7-1993 was set aside and the parties were held to be entitled to the suit property in equal share.
7. Sardar Muhammad respondent/ defendant preferred an appeal which has been partly accepted and, as noted above, the decree of the learned trial Court has been modified. The learned appellate Court has upheld the findings of the learned trial Court that the order of the Collector dated 12-7-1993 is not sustainable. However, the learned appellate Court has proceeded to hold that the learned trial Court was not competent to grant the declaration of title sought in the plaint. According to the learned appellate Court, the Collector/D.O. (Revenue) was competent to do so in terms of section 36 of the Colonization of Government Lands Act, 1912. It is this finding which the petitioners have impugned in the present petition.
8. The learned appellate Court, I am afraid, has erred in law. The petitioners were armed with a valid order (Exh.P.2) dated 22-7-1963 whereby the four brothers were held entitled to proprietary rights in the suit-land. It is this title which was being asserted through the suit filed by the petitioners. The parties were also fully aware of the respective pleas taken by them and led evidence accordingly. The learned trial Court after considering evidence and, in particular, the Exh.P.2, held that the petitioners were co-owners of the property in dispute. Once the order for grant of proprietary rights had been passed, the dispute became confined to the question of title between the brothers. There was thus no scope for any de novo determination by the Collector.
This plea also gets support from the written statement filed by the Province. The appellate Court's decision to refer the parties to the Collector/D.O. ( R) is, therefore, without lawful basis.
9. Before me, learned counsel for the respondents was not able to advert to any legal infirmity in the decree passed by the learned trial Court. He was not in a position to dispute that the order dated 12-7-1993 had been passed without notice to the petitioners. The fact that the said order was passed without notice was fully established from the testimony of D.W.4, Habib Ahmed, Colony Clerk of the Revenue Department. It was argued by learned counsel for respondent No,1 that no formal order had been passed by the Collector for grant of proprietary rights and, therefore, in exercise of his administrative powers, the Collector could have reviewed the order dated 22-7-1963.
This argument has no merit because Exh.P.2, in itself, discloses the requisite degree of formality in the Collector's order. The said order remained in full force for 30 years and was duly acted upon as is evident from the Jamabandi and Khasra Girdawari exhibited on record.
10. Learned counsel for the respondent Sher Muhammad next argued that Sardar , Muhammad had earlier filed a suit in respect of the suit-land which had been dismissed and, therefore, to his extent the earlier decree operated as res judicata. This submission is also not tenab,le because in his written statement the respondent Sardk Muhammad did not raise any such. Plea.
' The question of res judicata is mixed question of law and fact and cannot be allowed to be raised at this belated stage.
11. In view of the above discussion, I find that the decree of the learned trial Court dated 15-1-2004 was proper and in accordance with law. The modification therein made by the learned appellate Court directing that the parties once again agitate the matter before the D.O. (Revenue) in review proceedings, constitutes a material error in the exercise of jurisdiction by the learned appellate Court. This revision petition is allowed. The decree of the learned trial Court is upheld and restored.