1. This appeal is filed against the judgment and decree of the Additional District Judge, Dudyal, passed on 22.7.2005 whereby the judgment and decree of the Civil Judge Dudyal dated 11.12.2004 has been reversed.
2. The precise facts forming the background of the case are that Barkat Hussain, respondent herein, filed a suit in the Court of Civil Judge Dudyal for declaration and cancellation of Mutation No, 110 and also challenged the entries of the Record of Rights. The dispute between the parties is with regard to the legacy of Bagh Ali r/o Village Malot Tehsil Dudyal. The Plaintiff, Barkat Ali, is son of Bagh Ali whereas Muhammad Fayyaz, defendant/appellant herein, is his grandson, Bagh Ali had two sons and two daughters namely Barkat Hussain, Muhammad Arshid, Amna Bi and Zanib Bi.
3. Muhammad Arshid died in his life before 1987. The mutation of his estate was attested on 23.6.1987 in presence of Barkat Hussain, plaintiff/respondent who stated before the Revenue Officer that appellant herein, Muhammad Fayyaz, is his nephew and he wants to give him full share of his father who admittedly died in life of Bagh Ali, his father. In this perspective of the matter, Mutation No, 110 was attested in favour of defendant/appellant herein. The legality and correctness of mutation was challenged by Barkat Hussain, respondent, through a suit in the Court of Civil Judge Dudyal on 17.8.2002, alleging therein that Mutation No, 110 had been sanctioned in violation of Shariat and is collusive, hence, is inoperative, against the rights of the plaintiff. It was further alleged by him that entries in the record of rights on the basis of the said mutation were equally without lawful authority and collusive.
4. The defendant/appellant resisted the suit and pleaded that the plaintiff has no cause of action nor the suit in the present form is maintainable. The defendant also raised an objection that the suit is not maintainable on the ground of estoppel as the plaintiff has himself consented before the Revenue Officer for attestation of mutation under challenge. It was further alleged that the Civil Court has no jurisdiction in the matter as the mutation was only challengeable before the revenue officer. The trial Court framed issued on 26.2.2003 in light of the respective pleadings of the parties.
5. The parties lead evidence in support of their claim. The learned trial Court vide its judgment dated 11.12.2004, dismissed the suit for want of proof. Feeling aggrieved by the said judgment, Barkat Hussain filed an appeal before the Additional District Judge Dudyal which was accepted on 22.7.2005, hence, this second appeal.
6. Arguing on behalf of the appellant, Sardar Muhammad Azam Khan, the learned Advocate contended that the judgment and decree of the Additional District Judge Duyal is erroneous, capricious and badly suffers from misreading and non-reading of record. The learned Advocate argued that the suit was vague for having been filed without description of the property therefore, no effective decree can be granted rather it was enjoined upon the first appellate Court to dismiss the suit. The learned Advocate further argued that Mutation No, 110 could not be challenged through a declaratory suit in Civil Court nor the correction of Record of Rights can be sought from the Civil Court in view of clear ouster of jurisdiction visualised by Section 172 of the West Pakistan Land Revenue Act, 1972. Moreover, the Officers who have prepared the Record of Rights under challenge and attested the Mutation No, 110 have not been arrayed as a party, thus, the suit cannot proceed in absence of a necessary party. The learned Advocate strenuously argued that the suit was liable to be dismissed on the ground of estoppel. It was contended that the learned Additional District Judge failed to appreciate the relevant provisions of Qanun-e-Shahadat Order 1984 in its true perspective which resulted in erroneous decision. The learned Advocate submitted that the judgment has been given in violation of Order 41 Rule 31 of the Code of Civil Procedure, hence, is nullity in the eye of law and is liable to be declared as such. It was lastly argued by the learned Advocate that there is no statutory law on the basis of which a predeceased son is deprived if from the estate of his grandfather nor the same is against the statutory backing, or is violative of the injunctions of Quran and Sunnah as has been observed by the learned First Appellate Court. In support of his submissions the learned Advocate placed reliance on the following precedents:--
(i) 1992 SCR 214;
(ii) 2003 SCR 77;'
(iii) 2005 SCR 53; Mr. Ali Zaman Raja, the learned counsel for the other side, controverted the arguments advanced on behalf of the appellant, and supported the impugned judgment. The learned counsel argued that a suit or appeal can be disposed of at a preliminary issue without adverting to the other merits of the case if the Court is of the opinion that after the decision of the preliminary issues further decision on the other issues would be academic. The learned counsel further submitted that the impugned judgment is in accordance with the injunctions of Quran and Sunnah, therefore, cannot be assailed on any ground raised by the learned Advocate for the appellant.
7. I have taken into consideration the respective arguments of the learned Advocates representing the parties and perused the record with my utmost care. So far as the first contention of Sardar Muhammad Azam Khan, the learned Advocate for the appellant that the suit is vague as no Khasra number is mentioned in the plaint, is concerned that is without substance. A perusal of the plaint as a whole reveals that the plaintiff has challenged Mutation No, 110 alongwith the entries incorporated in favour of the appellant/defendant on the basis of the said mutation which is sufficient description of the property. Under sub-rule (3) of Order VII of C.P.C., it is provided that where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such a property can be identified by boundaries or numbers in a record of settlement of survey, the plaint shall specify such boundaries or numbers.
8. As stated above, the suit' is for declaration and cancellation of entries of the Record of Rights pertaining to years 1989-90 and 1997-98 which contains sufficient description for the identity of the property. The authority relied upon by the learned Advocate in this regard has no relevancy as the facts of the case were totally distinguished from the case in hand. Be that as it may it was imperative for the defendant to raise this objection in written statement so that the other party may be in a position to amend the suit.
9. The contention of the learned Advocate that the suit for cancellation of the mutation as well as correctness of Record of Rights was not maintain view of Section 172 of the West Pakistan Land Revenue Act, 1967 is also devoid of any force. The dispute in the present case is not only with regard to the correction of the entries of the Record of Rights but the question of title is also claimed and for such claims Section 53 of the West Pakistan Land Revenue Act, 1967 itself creates an exception for filing suits in Civil Courts. Suffice it to refer Kh. Muhammad Akbar's case [2000 SCR 211], in which the similar contention of the appellant therein was repelled by the apex Court in light of the following observation. ..... Section 53 of the Revenue Act gives right to a person considering himself an aggrieved by an entry in the record of rights or any periodical record, to institute a civil suit for the redressal of his grievance under the provisions of Section 42 of the Specific Relief Act; the joint reading of Section 53 and Section 172(2) (vi) of the Revenue Act makes it amply clear that the suit filed by the plaintiff- respondents is triable by the Civil Court, except to issue direction to the revenue authorities to correct the entries in the revenue record. If one of the reliefs sought by the respondents cannot be given to them due to lack of jurisdiction, it cannot be said that jurisdiction the Civil Court is also barred so far as other reliefs are concerned. Only the relief regarding the correction of the entries in the revenue record is barred under Section 172(2)(vi) of the Revenue Act and not the other reliefs indicated above. For the sake of convenience, Section 53 of the Revenue Act is reproduced below:- - "53. If any person considers himself aggrieved by an entry in a record of rights or in a periodical record as to any right of which he is in possession, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877 (Act 1 of 1877)."
10. The bare reading of the above mentioned provision leaves no doubt about the fact that the suit for establishing the title to the land falls within the jurisdiction of the Civil Court and the bar contained in Section, 172 (2) (vi), referred to above, would not debar the respondents to get appropriate relief."
11. The contention of the learned Advocate that officers who have prepared the record and sanctioned the mutation were necessary party and in their absence the suit is not maintainable, is also not tangible. The dispute was between the parties, therefore, the Revenue Officers were not necessary party. The authorities referred to and relied upon by the learned Advocate for the appellant have no relevancy as in all those cases the writs were refused under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 on the ground that the authority whose order is under challenge is a necessary party. So far the petition under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 is concerned, I have no quarrel with the proposition laid down in the cited cases because the same was the requirement of the relevant rules.
12. The contention of the learned Advocate that the suit was liable to be dismissed on the ground of estoppel, has a force. The rule of estoppel contained in Article 114 of the Qanun-e-Shahadat Order, 1984 postulates that when one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such a belief, neither he nor his representative shall be allowed, in any suit or proceedings between himself and such a person or his representative, to deny the truth of that thing.
13. Judging the present controversy in light of the rules and guidelines laid down by the superior Courts the rule of estoppel by conduct is fully attracted in the present case.
14. The precise case of the defendant/appellant was that it was the plaintiff/respondent who himself appeared before the Revenue Officer and made a statement that he wants to abandon his right in favour of his nephew, appellant herein, thus the abandonment can be regarded as compromise between the parties which was given due effect by recording the mutation in presence of Ghulam Hussain and Raja Muhammad Ayyub Khan, witnesses. Barkat Hussain, also put his thumb impression on the Mutation Register. Mutation, Exh. DE, available at page 57 of the file reveals that the plaintiff, Barkat Hussain, abandoned his right partly in favour of his nephew and this fact is mentioned in the order of the Revenue Officer. This mutation was sanctioned in 1989 in presence of Ch. Ghulam Hussain and Raja Muhammad Ayyub Khan. At that time the age of Muhammad Fayyaz was hardly 5 to 6 years and question of connivance or conspiracy on his part with the revenge staff hardly arises. Barkat Hussain, when appeared as a witness admitted the aforesaid position.
15. It is also an admitted position that mutation was sanctioned in his. presence but he has filed the suit after a period of more than 20 years. His statement coupled with his conduct is sufficient to prove waiver/abandonment on his part. There are number of authorities in support of the proposition and some of which are referred to herein below:--
(i) 'Muhammad Nawaz v. Muhammad Khan" (1989 CLC 2140);
(ii) 'Mst. Mumtaz Begum etc. v. Abdul Rasheed etc." (1988 CLC 2023);
(iii) "Ghulam Rasool v. Muhammad Rafique" (1990 MLD 112);
(iv) 'Mir Ajab Gul v. Noor Nawaz Khan" (1990 MLD 2111); I would also like to refer two judgments from the Azad Jammu and Kashmir Jurisdiction i,e, 'Mustafa Khan and 3 others v. Muhammad Khan and another" (PLD 1978 SC (AJK) 75) & 'Walayat Khan v.
16. Mango Khan" (PLD 1976 AJK 17).
17. In the later case Mr. Justice Kh. Muhammad Yusuf Saraf, CJ (as his lordship then was) scholarly dealt with the rule of estoppel and the facts of the case were almost similar. Though for the reason recorded in the judgment his lordship has maintained the conclusion reached at by the subordinate Courts against the proposition involved in the present case but has laid down very exhaustive and comprehensive principle of applicability of the rule of estoppel. It was further held that the plaintiff herein was not estopped from ascertaining his right. The view had been formed in the circumstances of that case.
18. Before parting with the case it may be observed that the inheritance under the Islamic Law does not depend on the attestation of a mutation in the revenue record rather it opens on the death of an individual as has been opined in Ghulam Ali's case (PLD 1990 SC 1). The relevant observation is recorded at page 12 of the report which is to the following effect:-- "The main points of the controversy in this behalf get resolved on the touchstone of Islamic law of inheritance. As soon as an owner dies, succession to his property opens. There is no State intervention or clergy's intervention needed for the passing of the title immediately, to the heirs.
19. Thus it is obvious that a Musim's estates legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the estate by an intermediary is unknown to Islamic law of inheritance as compared to other systems. Thus there being no vesting of the estate of the deceased for an interregnum is any one like an executor or administrator, it devolves on the heirs automatically, and immediately in definite shares and fraction. If is so notwithstanding whether they (the heirs) like it, want it, abhor it, or shun it. It is the public policy of Islamic law. It is only when the property has thus vested in the heir after the succession opens, that he or she can alienate it in a lawful manner.
20. There is enough comment and case-law on this point which stands accepted."
21. Thus, it is crystal clear that Barkat Ali has become owner of the estate of Bagh Ali at his death to the extent of his legal share which has been abandoned by him. This right was not subject to the incorporation of mutation, therefore, the challenge of mutation was not necessary nor it was directly involved in the case. The plaintiff who has abandoned his right by his conduct cannot be allowed to blow both hot and cold in the same breath and rule of estoppel is meant for the same purpose.
22. After considering the case law as well as record of the case, I am of the opinion that the plaintiff is estopped by his conduct as he has abandoned his right in favour of the defendant/appellant herein, and this abandonment is a compromise which is fact has been acted and incorporated by the Revenue Officer. The abandonment has been proved by the cogent evidence and negation of the same by the respondent/plaintiff after a pretty long period estopped him from altering his possession on the principle of acquiescence and waiver especially when the impugned mutation is proved to have been sanctioned on respondent's behest. A reference can be made to a case titled M/s Farms, Islamabad vs. National Development Finance Corporation (PLD 1996 Lah. 99).
23. The last contention of the learned Advocate for the appellant that mutation under challenge is not against any Quranic verse/Sunnah of the Holy Prophet (PBUH) or any statutory law, therefore, the judgment of the First Appellate Court is not legal. This contention has been examined by a full bench of Federal Shariat Court in a case of Allah Rakha v. Federation of Pakistan (PLJ 2000 F.SC. 36] but the judgment has been suspended by the Supreme Court of Pakistan, therefore, it appears appropriate to left this question open for decision.
24. The upshot of the above discussion is that the appeal is accepted and the judgment and decree of the First Appellate Court dated 22.7.2005 is hereby vacated, resultantly the judgment and decree of the Civil Judge, Dudyal recorded on 11.12.2004 is hereby restored.