MAULVI ANWARUL HAQ, J.--- This judgment shall decide Civil Revision No.1573 of 2006, Civil Revision No.1563 of 2006 to Civil Revision No.1565 of 2006 as common questions of law and facts are involved.
2. The following suits were filed by the plaintiff/respondents:---
(1) Civil Revision No.1573 of 2006: filed on 28-10-2000 regarding suit land situated in Village Noorullah, Tehsil and District Mianwali.
(2) Civil Revision No.1563 of 2006: filed on 28-10-2000 regarding suit land situated in Village Phati, Tehsil and District Mianwali.
(3) Civil Revision No.1564 of 2006: filed on 25-10-2000 regarding suit land situated in Village Khola, Tehsil Piplan, District Mianwali.
(4) Civil Revision No.1565 of 2006: filed on 25-10-2000 regarding suit land situated in Village Nasirullah, Tehsil Piplan, District Mianwali.
Admitted facts of all these cases are that the suit lands were owned by Nawab son of Bahawal, who died on 2-1-1971. He was survived by a son Ghulam Ahmad, the predecessor-in-interest of the petitioners, a daughter Bakhat Bhari, predecessor-in-interest of respondents Nos.8 (i) to 8(v) while respondents Nos.1 to 7 (plaintiffs) are the children of Gullai alias Gullan Khatoon, who pre- deceased her father Nawab on 9-4-1970. In inheritance mutations sanctioned on the death of Nawab, in the matter of all the said suit lands, the plaintiffs were excluded. Said widow of Nawab (mother of said Gullai) died on 11-12-1975. In the inheritance mutations attested on her death also the plaintiffs were excluded. The suits were accordingly filed seeking a declaration that they are entitled to inherit 1/4th share in the estate of Nawab as also 1/4th share in the estate of their maternal-grandmother, she acquired on the death of Nawab. The plea taken by the respondents after admitting all the said facts in their written statement was that earlier the plaintiffs had filed a suit regarding the land of Nawab, located in Village Zila Shumali, District Mianwali. They were compensated and they withdrew the suit. Inter alia the following Issue No.7 was framed by the learned trial Court.
(7) Whether the suits of the plaintiffs are not maintainable in view of Order II, rule 2, C.P.C. And also hit by principle of res judicata?
Evidence of the parties was recorded. Learned trial Court decreed the suits on 1-3-2006. First appeals filed by the petitioners were dismissed by learned Additional District Judge, Mianwali on 26-5-2006.
3. Mr. Zia Ullah Khan Niazi, Advocate, learned counsel for the petitioners contends that the earlier suit having been withdrawn, the present suit was barred under Order XXIII, rule 1, C.P.C. As well as Order II, rule 2, C.P.C. Mr. Saleem Akhtar, Advocate, learned counsel for the respondents contends that the earlier suit was regarding a different land and further His clients had denied filing of any such suit and consequently withdrawing the same and that there is no evidence on record that such a suit was filed and thereafter withdrawn. Reference: is also made to an application filed under section 12(2), C.P.C. Mr. Zia Ullah Khan Niazi, Advocate rejoins to urge that the matter is fully covered by the judgment of Honourable Supreme Court of Pakistan in the case Aziz Ahmad and others v. Mst. Hajran Bibi and another 1987 SCM R 527 and also relies on the case Muhammad Aslam v. Muhammad Tufail and two others 1995 CLC 1061 to urge that the suit was barred by time.
Mr. Saleem Akhtar, Advocate, states that the said judgments are distinguishable.
4. I have gone through the copies of the records appended with all these cases with the assistance of the learned counsel for the parties. As noted by me above, the facts of all these cases are undisputed. The plaintiffs being admittedly the children of pre-deceased daughter inherited 1/4th share in the estate of Nawab as also his widow Bhago who died after inheriting her share in the said estate. Coming to the said contention of the learned counsel, Exh.D.1 is the copy of plaint in the said earlier suit. It was filed on 15-3-1983. According to its contents the plaintiffs had sought declaration that they are entitled to 1/4th share of land belonging to Nawab in Village Zila Shumali, Tehsil and District Mianwali. This suit was instituted on 11-1-1983. It was adjourned to 10-2-1983. It was noted that Mst. Bhag Bhari who was arrayed as defendant No.3 in the suit, has died since long.
Direction was issued for appearance of the plaintiffs in person to explain and notices were ordered to be repeated to the said lady for 15-3-1983. On this date, the order narrates that the learned counsel for the plaintiffs has made a statement that they have entered into a compromise with the defendants in the suit and their grievance has been redressed and the suit be dismissed as withdrawn. It was accordingly dismissed as withdrawn. Before I proceeded further I may note here that no doubt the judgment of the Honourable Supreme Court of Pakistan in the said case of Aziz and others does go to support the plea of the learned counsel for the, petitioner. However, I may humbly note here that earlier judgment of the Honourable Supreme Court of Pakistan in the case "Ghulam Nabi and others v. Seth Muhammad Yaqub PLD 1983 SC 344 was not brought to the notice of their Lordships. Be that as it may, the fact remains that the plaintiffs had denied any filing of said suit and thus to have withdrawn B the same. Have already noted above that in the said suit filed in the year 1983, Mst. Bhago was impleaded as defendant who had admittedly died in the year 1975.
The plaintiffs were directed to appear in person. No such appearance was made. Even a statement of the learned counsel was not formally recorded.
5. Now the plaintiffs having denied the filing of the said suit, the onus lies upon the petitioners to have proved the said fact. No such attempt was made. Records of the suits were not summoned.
Learned Advocate who had made statement was not produced so much so even when the plaintiff Ghulam Azam (respondent No.2) who appeared as P.W.1, was not confronted with the said plaint both when he appeared in affirmative as also when he reappeared in rebuttal. This being so, I do not find any proof on record that the suit was in fact filed by the plaintiffs and consequently was withdrawn by them. The factum of filing of suit and its withdrawal being non-existent, the said dictum being relied upon by the petitioners would be of no help to them. Besides the plea was not of simple withdrawal. The plea was that the plaintiffs were paid of for their share in the suit land.
There is no evidence whatsoever on record in support of the said plea. Only the statement of Muhammad Sheiibaz, petitioner No.3, is on record as D.W.1 which has been sufficiently rebutted by said P.W. I.
6. As to the contention based on the application filed under section 12(2), C.P.C. And its dismissal, nothing turns on the same. The fact was to be proved in the present suit in order to render it being barred by provisions of law which has not been proved.
7. So far as the plea regarding the limitation is concerned, by now it is well-settled having been declared by the Honourable Supreme Court of Pakistan that in the matter of inheritance the question of limitation does not arise. So far as the said judgment of this Court in the case of Muhammad Aslam is concerned, his lordship found as a fact that the plaintiff was present at the time of attestation of mutation and had not objected as she had surrendered her share and had obtained ownership and possession of a house owned by the defendant in the case. The finding was recorded with reference to a documentation in this behalf. Nothing turns in favour of the petitioners on the basis of the said judgment. No other point has been urged. All the civil revisions are dismissed. No orders as to costs.