' AMIN-UD-DIN KHAN, J.--- Through this civil revision, the petitioners have challenged the judgment and decree dated 17-12-1995 passed by the Additional District Rahim Yar Khan, whereby appeal filed by the petitioner was dismissed, and the judgment and decree dated 21-10-1991 passed by the Civil Judge, Rahim Yar Khan, whereby suit filed by the respondents was decreed.
2. The facts as leading to this civil revision are that Mst. Alam Bibi and Mst. Zubaida Bibi, widow and daughter of Wali Muhammad, respectively, on 27-7-1985 filed a suit for declaration on the basis of family partition in accordance with compromise dated 26-3-1969 produced before the Revenue Officer/Collector, Rahim Yar Khan. Actually the colony land was allotted to one Khuda Bakhsh who was having four sons, namely, Ali Muhammad, Ghulam Muhammad, Wali Muhammad and Muhammad Slim if, and two daughters, namely, Reshman and Sharifan. Wali Muhammad died, his widow and daughter filed a suit for produce of land left by Wali Muhammad from the inheritance of his father Khuda Bakhsh, as' whole the land was in possession of Ali Muhammad. The parties to that suit filed a compromise in the court that 10-1/2 Acre land from the suit property has been given to the plaintiffs and in view of said compromise suit was decided. Now on the basis of that compromise, the plaintiffs-respondents Nos.1 and 2 filed suit in hand claiming a declaration that they be declared as owner in possession of suit-land which was given to them in that compromise produced before the Revenue Officer in the year 1969. Before filing of this suit, plaintiffs- respondents Nos.1 and 2 also filed a suit for possession on 14-11-1982, which was later on withdrawn.
3. The suit was contested by the defendants by filing written statement, wherein it was pleaded that settlement was temporary till the Issuance of Patta Malkiat in favour of original owners. They prayed that suit is not competent. From the divergent pleadings of parties, the trial court framed issues and invited the parties to produce their evidence. Both the parties adduced their respective evidence in support of their contentions. After close of trial and hearing the arguments of parties, the trial Court vide judgment and decree dated 21-10-1991 decreed the suit. Feeling aggrieved thereby, the defendants preferred an appeal before the-first appellate court, which was dismissed vide judgment and decree dated 17-12-1995. Hence, this civil revision.
4. Learned counsel for the petitioners-defendants states that on the basis of written compromise filed in the court of Revenue Officer, suit for declaration is not competent; that Mst. Reshman and Sharifan, daughters of Wali Muhammad, were .Not party before the Revenue Officer and they were also not arrayed as party in he suit in hand. Further states that at the time of filing of compromise deed before the Revenue Officer, no Patta Malkiat was issued in favour of the parties or their predecessor.
5. On the other hand learned counsel for the respondents has supported the concurrent judgments and decrees passed by the courts below and states that at this revisional stage; reappraisal of evidence is not permissible. Further states that the property mentioned in Exh. P-7 Was owned by the plaintiffs-respondents, was transferred in lieu of the property given to them in the above said compromise. Reliance has been placed upon 1994 SCM R 470 (She,. Muhammad Khan and others v.
Ilam Din and others), AIR 1935 Lah. 638 (Jagpal Kaur v. Surat Singh) and 1993 SCM R 145 (Shamir through Legal Heirs v. Faiz Elahi through Legal Heirs)."
6. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance.
7. The case-law referred to by learned counsel for the respondents are relevant to section 19 of the Colonization of Government Lands . (Punjab) Act (V of 1912). I have noticed that the question of bar contained in section 19 is not issue in this suit. Further there is no cavil that when complete transfer of colony land is not made during the pandency of tenancy, the bar of section 19 is not applicable.
Even otherwise it is not a case where any party has invoked the bar of section 19 of the Colonization of Government Lands (Punjab) Act before this Court.
' The objection of learned counsel that on the basis of compromise arrived at between the parties in a suit for produce of suit property, the settlement with regard to the suit property cannot give proprietary rights and a decree for ownership cannot be granted, as the matter in issue was not with regard to the ownership and that on the, basis of that compromise even recorded by the Revenue Officer, the suit for declaration is hot competent. The contention of learned counsel having weight that at the most if it was an agreement between the parties, a suit for secific performance was competent. I have noticed that in the suit for produce of suit property filed before the Revenue forum, all the legal heirs of Khuda Bakhsh were not party and even in this suit the daughters of Khuda Bakhsh have not arrayed as party.
8. It is settled that a declaratory decree can declare the pre-existing right. A new right cannot be created through a decree passed for declaration in a suit filed under section 42 of the Specific Relief Act, 1877. In the suit in hand, the plaintiff demanded a decree in their 'favour for creating a right which is not permissible under the law. In my view there was no pre-existing rights of ownership before filing of the suit in favour of plaintiffs on the basis of any compromise or family settlement arrived at between the parties in the year 1969, when admittedly Patta Malkiat had not been issued in favour of legal heirs of Khuda Bakhsh till that time. In these, circumstances, .Both the courts below fell in error while ignoring this legal aspect of the case, as it is not reappraisal of evidence but it is a clear misuse of jurisdiction. The objection of learned counsel for respondents- plaintiffs that the land mentioned in Exh.P-7 was owned by the plaintiffs which was given to the defendants in lieu of that compromise arrived at between the parties, is not proved on the record, as learned counsel failed to substantiate his version through evidence, that this land was transferred in favour of defendants of the suit. If there were any rights of ownership existing in favour of plaintiffs, there was no necessity to file a suit for declaration in hand. In this view of the matter, both the courts below fell in error while granting a decree in favour of plaintiffs- respondents Nos.1 and 2 and against the petitioners.
9. The crux of above discussion is that this civil revision is allowed. The impugned judgments and decrees passed by both the courts below are, hereby, set aside. Resultantly, the suit filed by the plaintiffs-respondents Nos.1 and 2 shall stand dismissed.