' MAULVI ANWARUL HAQ, J. On 27-10-1996, the petitioners filed a suit against the respondent. In the plaint it was stated that the suit-land mentioned in the plaint was owned by Mst. Bhano, who did on 20-9-1972. A pedigree was drawn in para.1 of the plaint showing the parties to be the sons and daughters of said Mst. Bhanb. It was then stated that Mst. Bhano was first married to Barkat Ali, as a result of which wedlock, the petitioners were born. After the death of Barkat Ali, she married Faqir Muhammad and she bore two sons, one of whom died while respondent No.1 is alive. After the death of Faqir Muhammad, the land was mutated in favour of the said widow. On her death, the petitioners are entitled to 3/5 share in the suit-land. However, the respondent got inheritance Mutation No.47 attested on 5-9-1972, to the exclusion of the petitioners. He had been paying their produce share. With these averments a declaration was sought that they are the owners of 3/5 share and the said inheritance mutation is illegal and void.
2. On 5-1-1998, the respondent filed written statement through two learned Advocates duly signed and verified by him. He admitted without any demur the said para.1 of the plaint and also stated in response to para.3 that the pedigree-table is correct. He, however, raised some preliminary objections. I will be referring to this written statement in some detail in the later part of my judgment. On 22-2-1999, the respondent filed an application for amendment of the written statement to enable him to deny para.1 and said para.3 of the plaint. This application was vehemently resisted. Vide order dated 15-7-1999, the learned trial Court allowed the said amendment. I will be referring later to the amended written statement filed on 22-7-1999. Following issues were framed on 27-1-1998:--
(1) Whether plaintiffs are legal heirs of Mst. Bhaven deceased and are entitled to succeed to 3/5 share in the property left by the deceased? OPP
(2) If Issue No.1 above is not proved in affirmative, then whether the Mutation of Inheritance No.47 dated 26-3-1973 is against law and facts, ineffective qua the rights of the plaintiffs and is liable to be set aside along with correction in the Revenue Record? OPP
(3) Whether the suit is undervalued for the purposes of court-fee? OPD
(4) Whether the suit is hit by the doctrine of res judicata? OPD
(5) Whether the plaintiffs have no cause of action to file this suit? OPD
(6) Whether. The suit is not maintainable in its present form? OPD
(7) Whether the plaintiffs are estopped by their words and conduct and have waived their rights, if any? OPD ' Relief.
' Evidence of the parties was recorded. The learned trial Court dismissed the suit on 27-3-2001, while the learned Additional District Judge, Lodhran, dismissed a first appeal filed by the petitioners on 7-3-2003.
3. Learned counsel for the petitioners vehemently contends that the learned trial Court had acted without jurisdiction while allowing the said amendment in the written-statement. According to him, the learned Courts below have failed to read the evidence in the light of the attending circumstances of the case reflecting on the face of the record. Learned counsel for the respondent on the other hand, contends that the said order of amendment has attained finality since it was not challenged when it was passed. He accordingly supports the impugned Judgments and Decrees.
4. I have gone through the copies of the records. I have already referred to the original pleadings and the matter of amendment above. Now as noted by me above, in the original written statement filed on 5-1-1998, the pedigree showing the parties to be the children of Mst. Bhano was admitted and in response to para.3 above, it was stated that the pedigree-table is correct.
5. Now in the application filed on 20-2-1999, for amendment of the plaint, a whole-new plea was sought to be introduced by withdrawing the admission of para.1 of the plaint. The application was, of course, contested. Now the learned trial Court instead of reading the said application proceeded to assume that the respondent is trying to make a case of clerical error in the matter of such admission, and with reference to Muhammad Zahoor and another v. Lal Muhammad and 2 others (1988 SCM R 322) proceeded to allow the application. It is rather painful to note that even the amended written-statement was not read by the learned trial Court which was filed on 22-7-1999 pursuant to order dated 15-7-1999. Now whereas in the original written-statement, para.1 of the plaint was admitted without any demur. In the amended written-statement in response to para.1 of the plaint it was stated as follows:-- {{URDU TEXT}} ' This can hardly said to be a case of clerical error.
6. Now even upon a complete reading of the original written-statement the said admission cannot be said to be the result of a clerical error. It was objected that the value for Court-fee is incorrect; that the suit is barred under section 11, C.P.C., that the plaintiffs have no cause of action; that the suit is not maintainable in its present form and that the petitioners are estopped by their conduct from filing the suit and even if they had any right, they have waived the same. It was further stated that the petitioners had filed an appeal and they got the relief. Now these objections were followed by the said admission of para.1 of the plaint.
7. Now the Honourable Supreme Court of Pakistan has consistently held that admissions made in pleadings are of very special nature and the party making an admission in the pleadings cannot be allowed to withdraw the same. In the case of Ahmad Khan v. Rasul Shah and others (PLD 1975 SC 311) it was thus observed by their lordships that an admission which is wrong in point of fact or is made in ignorance of legal right, has no binding effect on the person making it. However this is subject to two well-recognized exceptions; First where acting upon a representation on a matter of fact made by one party to the other party, the other party in consequence of said representation had altered its position; and second admissions in pleadings are also made conclusive under section 58 of the Evidence Act, 1872 (Article 113 of the Qanun-e-Shahadat Order, 1984). Now with reference to the matter of amendment in a written-statement which has the effect of withdrawal of an admission, the Honourable Supreme Court of Pakistan in the case of Secretary Government (West Pakistan) N.-W.F.P. Department of Agriculture and Forests Peshawar and 4 others v. Kazi Abdul Kafil (PLD 1978 SC 242) notwithstanding the fact that the admission in the written-statement was stated to be incorrect, upheld the orders of the Court below refusing the amendment in the written statement by observing that it is well-settled that admissions made in the written statement have altogether different legal significance than admissions made generally.
8. Now coming to the said contention of the learned counsel for the respondent, the same is without any force under section 105(2), of the C.P.C., all orders passed in a suit can be objected to where a decree is appealed from.
9. Now coming to the evidence in this case, Muhammad Din petitioner appeared as P.W.1 to state that Mst. Bhano was his mother, while Barkat Ali was his father, who had died in India and Faqir Muhammad is his paternal uncle. After the death of Barkat, Mst. Bhano married Faqir Muhammad and respondent Shah Nawaz and Bashir Ahmad were born. In his cross-examination it was suggested to him that the name of his mother is Mst. Ahmade and he denied the said suggestion.
Now Shah Muhammad respondent appeared as D. W.1 to state that Mst. Bhano was his mother and she contracted only one marriage and that was with his father. Now he stated that in the years 1978, an appeal was filed before AC-Lodhran where Raisham Bibi petitioner has stated that petitioners are the children of Mst. Ahmade. Now in his corssexamination he stated that Barkat Ali was his paternal uncle {{URDU TEXT}} he died in India before his birth while Faqir Muhammad, his father died in Pakistan. He admitted that the petitioners are the children of Barkat. He stated that Barkat had married Mst. Ahmade, however, he could not tell the name of the father of the said lady.
Now he expressed ignorance as to when Barkat married, he also stated that he has no knowledge of the birth of the petitioners as he had himself not been born at that time. According to him, all these facts were told to him by his mother and uncle. Thereafter he said as follows:- {{URDU TEXT}} ' He admitted that on the death of Bashir Ahmad his brother, he got a pedigree-table written on the mutation. This mutation is Exh.P1 and has been proved by Gulzar Ahmad, Patwari as P.W.4. In this document, Mst. Bhano is shown to be a widow of Faqir Muhammad as well as Barkat Ali.
10. Having thus examined the records, I do find that the learned trial Court has acted without jurisdiction while allowing the respondent to withdraw the said admission and further the records have not been properly read by the learned Courts below, while passing the impugned judgments and decrees and non-suiting the petitioners. The C.R. Accordingly is allowed, both the impugned Judgments and Decrees are set aside and the suit filed by the petitioners is decreed with costs throughout. " Counsel fee is fixed at Rs.5,000. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.