' AMIN-UD-DIN KHAN, J.---Through this civil revision, the petitioners have challenged the judgment and decree dated 17-11-2008 passed by learned Additional District Judge, Khanpur, District Rahim Yar Khan whereby appeal filed by the petitioners was dismissed and judgment and decree dated 31-1-2007 passed by learned Civil Judge, Khanpur whereby the suit filed by the petitioners was dismissed, was upheld.
2. With the concurrence of learned counsel for the parties, this civil revision is being decided as "Pacca" (Admitted) case.
3. Brief facts of the case are that the petitioners-plaintiffs filed a suit for declaration that they be declared owners of the property measuring 9 kanals, 3-1/2 marlas, fully detailed in the head note of the plaint, and also challenged Mutation No.1355 attested on 29-11-2001. This suit was filed on 10-1- 2005.
4. The defendants filed their written statement in which they have stated that the suit is not competent and is liable to be rejected as the Mutation impugned in the suit has been sanctioned in execution of a decree dated 22-3-1979 for specific performance in favour of the defendants- respondents and also pleaded that the property, subject-matter of the suit in which decree was passed, was dishonestly transferred in favour of the petitioners-plaintiffs who are near relatives of the judgment-debtor and in order to frustrate the decree, the present suit has been filed.
5. Learned trial Court on the basis of the averments in the written statement thought it proper that the suit be judged on the basis of principles embodied under Order VII Rule 11 of the C.P.C. As well as section 11 of the C.P.C. And after considering the record dismissed the suit vide judgment and decree dated 31-1-2007. The appeal filed by the plaintiffs-petitioners was also dismissed by learned Additional District Judge, Khanpur vide judgment and decree dated 17-11-2008. Hence this civil revision.
6. Learned counsel for the petitioners states that without framing the issues and affording the opportunity to the parties to produce their respective evidence, application of section 11 of the C.P.C. Was not proper and that even for application of Order VII, Rule 11 of the C.P.C. The evidence of the parties should have been recorded.
7. On the other hand, learned counsel for the respondents states that matter in issue relates to the year 1960; that in the year 1976 suit for specific performance was filed by the defendants- respondents which was decreed in the year 1979 and the appeal filed against the said decree was dismissed in the year 1983; that C.R. No.187-D-1983 filed by the judgment-debtors was also dismissed by this Court vide judgment-dated 14-11-2000; that during the course of execution proceedings of the decree, the suit-land was transferred in favour of respondents and Mutation No.1355 was sanctioned on 29-11-2001; that the plaintiffs-petitioners are near relatives of Adbul Rahman, judgment-debtor who is dragging the petitioners for the last fifty years in the Courts and that order of the Executing Court is also under challenge in C.R. No.438-2004/BWP titled "Abdul Rahman versus Manzoor Ahmad and others", which is also fixed for today. Further submits that the petitioners of this civil revision never came to the surface except Abdul Rahman who filed the said civil revision and counsel in both the civil revisions is the same. Further submits that during pendency of the lis of specific performance, the suit-land has been transferred in favour of the petitioners-plaintiffs of this suit.
8. I have heard the learned counsel for the parties and have perused the record.
9: So far as the objection of learned counsel for the petitioners that before application of Order VII Rule 11 of the C.P.C. As well as section 11 of the C.P.C. The learned trial Court was bound to frame issues and to record evidence of the parties is concerned, in my view it is not necessary for application of Order VII Rule 11 of the C.P.C. That issues be framed and evidence be recorded. In case of application of section 11 of the C.P.C., it is for the Court to see that property and cause of action in both the suits is the same and the former suit has been finally decided by the Court of competent jurisdiction then the second suit is barred. This case is not a case of the application of section 11 of the C.P.C. However, this suit is otherwise barred under the law because it is not denied by the parties that the impugned Mutation No.1355 was attested on 29-11-2001 in execution of the decree under the order of the learned Executing Court, therefore, if any right of the plaintiffs- petitioners, for the sake of arguments, was under threat through this mutation, the remedy available to the plaintiffs-petitioners was under section 47 of the C.P.C. Or if the decree was to be challenged passed in that suit in which the execution petition was filed, the plaintiffs-petitioners were having the remedy of section 12(2) of the C.P.C. And not this suit; The reasons given by the Courts below for dismissing the suit are not wrong but the application of section 11 of the C.P.C. Is not correct but, as I have discussed above, the suit was barred under section 47 of the C.P.C.
10. In the light of what has been discussed above, dismissal decree in suit passed by both the Courts below is principally correct, wheri there was opportunity before the learned trial Court to look into certified copies of the judicial record which has also not been denied by the plaintiffs- petitioners the suit was liable to be rejected under Order VII Rule 11 of the C.P.C. In this view of the matter, I dismiss this civil revision with costs and reject the plaint filed by the plaintiffs-petitioners under Order VII Rule 11 of the C.P.C. Being barred by law. 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.