' MIAN SAQIB NISAR, J.---The suit for the declaration, filed by respondents Nos. 1 to 3 on 9-10-1984, claiming ownership of the property in question, was dismissed by the learned Civil Judge, vide judgment and decree dated 6-11-1991, but on their appeal, which was accepted on 18-10-1994, the above judgment and decree has been reversed and the suit decreed.
2. Briefly the facts, necessary for the disposal of this revision are, that Yar Muhammad was the owner of the land measuring 2741 !Canals and 7 Marlas, situated in Mauza Thanki Ram, Tehsil Mankera District Bhakkar. He died and his above estate was inherited by his son Ghulam Hussain vide Mutation No,480 dated 7-9-1955. On the death of Ghulam Hussain, which occurred in 1959, his inheritance Mutation No,497 dated 25-2-1960, was attested in, the name of Mst. Haleeman, Mst.
Ghulam Fatima and Mst. Bakhtan and the collaterals namely Elahi Bakhsh, Khuda Bakhsh, Ahmad Bakhsh, and Noor Muhammad, Mst. Bakhtan died in the year 1960 and her Mutation of Inheritance No,498 dated 28-7-1961 was attested in favour of her two sisters, and the same collecterals named above. These collaterals through a sale Mutation No,673 dated 28-6-1967 along with Mst.
Haleeman and Mst. Ghulam Fatima, sold the aforesaid property in favour of Haq Nawaz, Rab Nawaz, Muhammad Nawaz, Muhammad Hayat, Mamdoo, Atta Muhammad, Lala and Amin. The petitioners filed a suit for pre-emption challenging the aforesaid sale, which was decreed on 6-2- 1978 and this decree has attained finality and was executed, on account of which, the Mutation No,44 dated 30-11-1978 was effected in favour of the petitioners.
3. Earlier Allah Wasaya, Iqbal and Amin, husband and sons respectively of Mst. Bakhtan, had challenged the sale and the Mutation No,673 in favour of Haq Nawaz etc. And the suit was dismissed by the learned Civil Judge vide judgment and decree dated 6-11-1972 (Exh.D.8), holding that Haq Nawaz etc. Were the bona fide purchasers. Be that as it may, they again brought the present suit in 1984, challenging the Mutations No, 497 dated 25-2-1960, No,673 dated 28-6-1967 and No,44 dated 30-11-1978, the last being in favour of the petitioners on the basis of their pre- emption decree. This suit was mainly contested by the petitioners claiming to be the persons having stepped into the shoes of the vendees Haq Nawaz etc., the right which they acquired on the basis of the decree for pre-emption. As mentioned earlier, the suit, after contest and trial was dismissed by the learned Trial Court mainly on the issue of res judicata and limitation, whereas on appeal of the respondents, which has been accepted, the judgment and decree of the trial Court has been set aside and the respondents/plaintiffs have been declared to be the legal heirs of Mst.
Bakhtan and it has been held that they were wrongly excluded from the inheritance of her estate and thus, the share belonging to Mst. Bakhtan could neither have gone to the collaterals or her sisters nor they could validly transfer the same in favour of Haq Naqwaz etc., which could be pre- empted by the present petitioners.
4. Learned counsel for the petitioners contends that the present suit was barred by res judicata, because earlier the respondents had filed a suit challenging the Mutation No,673, which is the basic mutation of sale made in favour of Haq Nawaz etc. And this suit was dismissed by the learned trial Court vide judgment and decree dated 6-11-1972; in that suit one of the issues involved was, whether Haq Nawaz etc. Are the bona fide purchasers, and this issue had been decided against the respondents, therefore, the second suit was hit by section 11 of C.P.C, It is also argued that the petitioners are the bona fide purchasers as has been determined in the earlier suit and, therefore, such issue could not be re-opened by virtue of the principle of res judicata. Lastly, he submits that at the most the respondents, because of challenge in the earlier suit, had come to know about the Mutation No,673 in the year 1970 and this suit, as mentioned above, was dismissed, but they did not challenge the said mutation, which they otherwise could not be challenged, and the present suit when brought in 1984, was not only barred by limitation, but also the respondents were estopped by their own conduct to institute the suit and accordingly it was dismissed by the learned' trial Court. In support of his various contentions, the learned counsel has placed reliance upon the judgments reported as Kala Khan and others v. Rab Nawaz and others 2004 SCMR 517 and Nawabzada Zafar Ali Khan v. Chief Settlement Commissioner etc. NLR 1999 Civil 699, Shahul Hamid v. Tahir Ali 1980 SCMR 469. The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331, Salehon and others v. Mst. Sardaran through legal heirs and others 1994 SCMR 1856, Hashim Khan v. National Bank of Pakistan PLD 2001 SC 325 and Allah Dawaya and others v. Additional District Judge and others 2002 SCMR 1183.
5. Conversely, the learned counsel for respondents Nos. 1 to 3 has placed reliance upon the provisions of Article 58 of the Qanun-eShahadat Order, 1984 and states that the earlier judgment of the learned Civil Judge dated 6-11-1972 (Exh.D.8) was without jurisdiction and was based upon fraud, therefore, such judgment shall not attract the rule of res judicata. By placing reliance upon the judgments reported as Messrs Ghulam Farid Muhammad Latif and others v. The Central Bank of India, Limited Lahore PLD 1954 Lah. 575, Hari Singh v. Khan Moin-ud-Din Khan and others AIR (31)
1944 Lahore 397, Muhammad Shoaib and 2 others v. Government of N.-W.F.P. Through the Collector D.I. Khan and others 2005 SCMR 85, 2005 PLC (C.S.) 1056, Muhammad Asif and another v. Director Public Instruction Punjab and another 2005 PLC (C.S.) 1434 and Muhammad Sadiq v. Sardar and others 1995 SCMR 710, the learned counsel for the respondents has submitted that where substantial. Justice has been done by the Court of appeal, the matter cannot be interfered in the revisional jurisdiction. It is also submitted that the courts, in law and equity, should not protect the ill-gotten gains by the litigants and in this case, it is the concurrent finding of the two Courts below that the respondents/plaintiffs are the legal heirs of Mst. Bakhtan and they were wrongly excluded from her inheritance, therefore, the Mutation No,498 was obviously based upon fraud; in this mutation, the Revenue Officer clearly stated that Mst. Bakhtan is not the resident of the village and, therefore, a "Build Sawal", be sent for ascertaining about her legal heirs, but without waiting for the same, the mutation of inheritance was effected in favour of the collaterals of Ghulam Hussian, who otherwise were not entitled to inherit the property of Mst. Bakhtan.
6. I have heard the learned counsel for the parties. The principle of res judicata is a question of law and according to the judgment reported as 1980 SCMR 469,it has been held that:- "Section 11, C.P.C, (Act V of 1908), which lays down the principle of res judicata, is mandatory, and as such a party to a former suit decided by a Court of competent jurisdiction, can avoid its provisions only by taking recourse to section 44 of the Evidence Act I of 1872, on the ground of fraud or collusion or if we may add by showing that the previous judgment was a nullity or non-existent in the eye of law."
' In PhD 1975 SC 331, the Honourable Supreme Conn has taken the view that:-- "The validity of a decision or order can be challenged either directly by way of proceedings specially designed by law for the purpose of having such a decision, set aside, reversed or modified; or by way of collateral attack in which the Court is not asked to invalidate the disputed decision but in which the existence of this decision is relevant to the issue facing the Court. In such collateral impeachment the contention generally is that the impugned decision is a nullity in the eye of law and can be disregarded by the Court before which it is sought to be relied upon by one party or the other, Direct proceedings for having a decision invalidated or set aside, may be either by way of appeal, revision or review; initiated by the affected party, in accordance with the relevant law; or they may take the form of suo motu recall of the order by the Court or authority which made it; or, lastly, action to be take by way of a regular suit before a Court of general jurisdiction for a declaration as to the invalidity of the order."
' In the other judgment 1994 SCMR 1856, it has been held:- "Where the findings had attained finality, the provisions of section 11 of C.P.C. Are applicable."
7. In the light of above, the key question to be examined in this case is, whether the decision (Exh.D.8) is the one, which falls within the mischief of. Article 58 of the Qanun-e-Shahadat Order. In this behalf, it may briefly be stated that it is respondents Nos. 1 to 3 plaintiffs in the present case, who have challenged the mutation in favour of Haq Nawaz etc. And the defence taken by Haq Nawaz etc. In that case was that they are the bona fide purchasers. Thus accordingly Issue No,3 was framed in this behalf. The Court while passing the judgment dated 6-11-1972, in clear terms gave the findings that:-- "The plaintiff admitted that the defendants Nos.11 to 19 were the purchasers. The previous record shows that the defendant vendors were recorded as the owners. The mutation Exh.D.1 shows that they have purchased this property on the payment of Rs,38730. No evidence has been led to the contrary. Hence I hold that the defendants Nos.11 to 19 are the bona fide purchasers for value and without notice. This issue is answered in affirmative."
' It is the sale in favour of the aforementioned defendants, referred to as 11 to 19 in the quoted judgment, which was challenged by the petitioners through a pre-emption suit, and was decreed in their favour in the year 1978 and in pursuance thereof, Mutation No,44 was effected in favour of the petitioners. Thus, for all practical and legal purposes, the petitioners had stepped into the shoes of Haq Nawaz etc., the purchasers of the property, whose sale had been challenged by the respondents in which, the issue about the bona tide purchasers has been decided in favour of Haq Nawaz etc., therefore, the provisions of section 11, C.P.C. Were squarely applicable and it is thus on account of the above that the learned Civil Judge had dismissed the suit holding it to be barred under the rule of res judicata. I am not in agreement with the learned counsel for the respondents that the judgment (Exh.D.8) comes within the purview of Article 58 of the Qanun-e-Shahadat Order, because neither it has been shown that such judgment has been passed by the Court having no jurisdiction nor that it has been obtained through fraud or collusion. The plaintiffs/respondents Nos.
1 to 3 were themselves the plaintiffs in the matter in which, the defence taken by the predecessor in interest of the petitioners was that they are the bona fide purchasers and this defence was upheld by the Court vide judgment dated 6-11-1972 (Exh.D.8) and the suit had been dismissed. Therefore, in order to avoid the res judicata, the shelter cannot be taken by the respondents behind Article 58 of the Qanun-e-Shahadat Order. When even asked in the Court, learned counsel for the respondents has failed to cite any judgment of the Superior Court to establish that Article 58 is attracted to the facts and circumstances of this case.
8.As regards the other argument that the courts have to do substantial justice and illegal gains should not be protected, suffice it to say that the law has to be strictly construed and applied; where there is a conflict between law and rules of substantial justice, the law has to take preference and when on the face of it, the suit of the respondents was barred by the rule of res judicata, this Court on the basis of such a rule, cannot protect and uphold the judgment of the court below.
9. For the question of limitation, the respondents knew about the Mutation No,498 when they earlier filed the suit, challenging the second Mutation No,673 and in this suit, tacitly the aforementioned mutation was also impugned. But when the suit was dismissed and the suit for preemption was decreed in favour of the petitioners in 1978, Mutation No,44 was effected, they again remained silent till 1984 when the present suit was brought. Obviously, the decree for pre-emption in this case and the decree in the earlier suit brought by the petitioners was in the way of the respondents and until and unless, the decrees were got set aside or challenged, the respondents could not, on the rule of inheritance, file a suit at their own choice and time. Resultantly, the suit brought beyond the period of six years from Mutation No,498 and even the sale made in favour of Haq Nawaz etc. To whom the property was originally sold and subsequently pre-empted by the petitioners, was barred by the law of limitation and was not protected on the principle that in the inheritance cases, there is no period of limitation.
In the light of above, by allowing this revision petition, I reverse the findings of the learned Appellate Court on the relevant issues, particularly issues Nos. 1, 2, 5, and 7, with the result that the suit filed by respondents Nos. 1 to 3 stands dismissed.