NASIR SAEED SHEIKH, J. --- This order will dispose of C.R.No. 3588 of 2010, W.P.Nos. 22772 & 22773 of 2010 as common questions of law and facts between the same parties are involved and are connected matters.
2. The civil revision has been preferred by forty-two petitioners who are respectively the legal heirs of Fateh Din, Nizam Din, Nawab Din, Muhammad Bukhsh, Noor Ahmad, Gulzar Ahmad, Ghulam Rasool and Kamal Din in the manner highlighted in the title of the civil revision petition. Writ Petition No. 22772 of 2010 has been preferred by the legal heirs of Fateh Din and Nizam Din only whereas Writ Petition No. 22773 of 2010 has been preferred by the legal heirs of Fateh Din, Nawab Din and Noor Ahmad.
3. The background of the facts resulting into the above-mentioned three petitions are that one.
Muhammad Ismail who was admittedly the predecessor-in-interest of the parties had four sons namely Sindhi, Karim Bukhsh, A.I Bukhsh and Shad. Kamal Din, Muhammad Bukhsh, Ghulam Rasool and Noor Ahmad sons of A.I Bukhsh and Nawab Din s/o Jalal Din instituted a suit in the year 1956 in the Court of learned Senior Civil Judge Sheikhupura against Peer Muhammad s/o Umar Din contending that the plaintiffs of the suit are in possession of land situated in killa Nos. 1 to 25 as per record of rights for the year .1905 of District Sheikhupura and the plaintiffs are in possession. Of the subject land for more than twenty years prior to the institution of the suit and on account of adverse possession they have become the owner thereof and the defendant of the suit Peer Muhammad be restrained from dispossessing them. Copy of the plaint of the suit is placed on the file of civil revision as Exh.D13 at page 126. This suit was contested by Peer Muhammad s/o Umar Din contended that the plaintiffs of the suit are the tenants at will. In the said suit of the plaintiffs the learned Senior Civil Judge, Sheikhupura framed the only issue in the following manner:---
1. Whether the plaintiff become owners of the land in suit by adverse possession? OPP
2. Relief.
The learned Senior Civil Judge Sheikhupura vide judgment and decree dated 17.7.1956 dismissed the suit of. The plaintiffs by recording the finding on issue No. 1 that the defendant of the suit is recorded as owner of the subject land in the Fard,jamabandi for the year 1954-55 and that the defendant is also in cultivating possession thereof.
4. Peer Muhammad s/o Umar Dih filed a suit for pc session against Faiz, Ahmad, Nadeem lqbal and Muhammad Anwar of a hoouse measuring 9 marlas situated in khata No. 24/25 khatoni No. 171- 172-177 Chak No. 174, Tehsil Safdarabad District Sheikhupura being part of the total land measuring 2 kanals 14 marlas with the contentions that the defendants of the suit were employed for cultivation purposes and in order to accommodate them the house was given by the plaintiff to the defendants for residence purposes and that he needs the possession back now and the suit accordingly for possession be decreed. This suit was contested by the three defendants Faiz Ahmad, Nadeem lqbal and Muhammad Anwar son of Nizam Din by contending that the grand- father of the plaintiff was E. Indhi who was the real brother of the grand-father of the defendants Karim Bukhsh and that the land subject-matter of the house was a joint ownership of the grand C.L.R. parents of the parties and that the plaintiff has illegally got incorporated the subject land in his favour in the revenue record with the collusion of the revenue department.
5. This suit was decreed by the learned Civil Judge, Sheikhupura in favour of the plaintiff vide judgment and decree dated 21.6.2003. A copy of this plaint is placed as Exh.D17 at page 150 of the instant file. Peer Muhammad also instituted another suit for possession against Muhammad Akbar s/o Ghulam Rasool in respect of another house situated in the same land consisting of two rooms which was occupied by Muhammad Akbar s/o Ghulam Rasool. This suit was also instituted on 18.8.2000 and the same was decreed in favour of the plaintiff Peer Muhammad vide a separate judgment decree dated 21.6.2003. This second judgment and decree is placed Exh.D18 at page 172 of the instant file.
6. The forty-two petitioners of the civil revision filed a suit on 22.4.2004 against Peer Muhammad s/o Umar Din, Rashid Farooq, Zafar Yaseen and Zulfiqar A.I sons of Peer Muhammad and the Province of the Punjab in the Court of learned Senior Civil Judge Sheikhupura. It was contended by the petitioners/plaintiffs that land measuring 217 kanals, 12 marlas alongwith an Ahata as per record of rights for the year 1901 situated in Khewat Nos. 18 and 19 khatoni Nos. 70 to 72 was allotted to four brothers namely Sindhi, Karim Bukhsh, A.I Bukhsh and Shadi all sons of Ismail. It was contended by the petitioners/plaintiffs that Sindhi was the grand-father of the defendants and he was the eldest brother of the three brothers Karim Bukhsh, A.I Bukhsh and Shadi and land which was allotted to all the four brothers was incorrectly reflected in the revenue entries in the name of Sindhi alone the grand-father of the respondents. The petitioners/plaintiffs contended that since the year 1927-28 the predecessor-in-interests of the parties were in possession of the subject land in the manner that the predecessor-in-interest of the petitioners occupied 2/3rd portion of the subject land whereas the predecessor-in-interest of the defendants/respondents occupied 1/3rd portion of the subject land. The petitioners/plaintiffs further contended that in the year 1939-40 with the collusion of the revenue department-defendant No. 5 the subject land was fraudulently reflected in the names of the defendants. It was further contended that a mutation of inheritance No. 35 of the subject land was incorporated in the name of the defendant No. 1 Peer Muhammad on 06.9.1939 which entries are also illegal and fraudulent. It was further contended that with the collusion of the revenue department the defendants No. 1 to 4 subsequently changed the entries in the revenue record of rights for the years 1962-63, 1967-68 and 19992000 in their favour without the knowledge of the petitioners/plaintiffs and later on the defendant No. 1 Peer Muhammad through an oral gift transferred the subject land in favour of defendants No. 2 to 4. Thus all the above-mentioned entries were sought to be declared illegal and without lawful authority by the petitioners through the said suit.
7. The respondents/defendants of. The civil revision contested the suit on a number of legal as well as factual objections. They denied the contentions raised by the petitioners/plaintiffs in their plaint.
In para-9 of the written statement on preliminary objections the defendants/respondents specifically pleaded that in respect of the subject land the predecessor-in-interest of the petitioners/plaintiffs instituted a suit for seeking declaration of their ownership on the basis of adverse possession which suit was dismissed and that on the basis of the said litigation the decision of the controversy had attained finality.
8. The learned Civil Judge Sheikhupura framed the following issues in the matter:- ISSUES
1. Whether the plaintiffs are owners in possession of the 3/4 shares of the disputed land alongwith the defendant No. 1 as being legal heirs of the deceased Karim Bakhsh and A.I Bukhsh who were entitled to get their shares equally with their deceased brother Sindhi? OPP
2. Whether the mutation No. 35, dated 06.09.1939 and subsequent entries in the Revenue Record are against the law and facts based on mala fide and in-operative on the rights of the plaintiffs?
OPP
3. If the issues No. 1 & 2 are proved, are the plaintiffs entitled to declaratory decree as prayed for?
OPP
4. Whether the plaintiffs approached the Court with unclean hands? OPD
5. Whether this suit is hit by principles of res judicata? OPD
6. Whether this suit is false and frivolous, as such the defendants are entitled to special cost u/s. 35-A, CPC? OPD
7. Relief.
9. Both the parties led their respective evidence. The learned Civil Judge Nankana Sahib dismissed the suit of the petitioners/plaintiffs vide judgment and decree dated 30.10.2009. The petitioners/plaintiffs preferred an appeal against the judgment and decree of the learned Civil Judge which appeal came up for hearing before a learned Additional District Judge Nankana Sahib and has been dismissed vide judgment and decree dated 02.08.2010 by the learned Additional District Judge Nankana Sahib.
10. Through the instant civil revision the judgments and decrees passed by the two Courts below have been assailed by the forty-two petitioners.
11. The petitioners of Writ Petition No. 22772/2010 who are the successors of Fateh Din and Nizam Din instituted an application u/s. 12(2) of CPC on 04.7.2007 for setting aside of the judgment and decree dated 17.7.1956 passed by the learned Senior Civil Judge Sheikhupura. The petitioners of Writ Petition No. 22773/2010 instituted the application u/s. 12(2) of CPC for setting aside of the judgment and decree dated 21.6.2003 passed by the learned Civil Judge Sheikhupura. These applications were contested by the respondents of the writ petitions.
12. In the application u/s. 12(2) of CPC moved for setting aside of the judgment and decree dated 17.7.1956 forming basis of Writ Petition No. 22772/2010 the following issues were framed:--- ISSUES
1. Whether the decree dated 17.07.1956 was obtained through mis-representation and fraud and as such the same is liable to be set aside? OPA
2. Whether the application is based on mala fide and petitioners have not come to the Court with clean hands? OPR 1 to 4.
3. Whether the petitioners have no cause of action and locus standi to file the instant application?
OPR 1 to 4.
4. Whether their petition is barred by law? OPR 1 to 4.
5. Whether the respondents are entitled to recover special cost from the petitioners? OPR 1 to 4.
6. Whether the petitioners are estopped by their own words and conduct to file instant application?
OPR 1 to 4.
7. Relief.
ISSUES
1. Whether the decree dated 21.06.2003 is based on fraud and mis-representation and is liable to be set aside? OPA
2. Whether the application is based on mala fide. And is liable to be dismissed? OPR
3. Relief.
13. After recording of the evidence of both the parties the learned Civil Judge Nankana Sahib dismissed both the applications moved u/s. 12(2) of CPC through two separate judgments dated 30.10.2009 passed in the matter. Both the petitioners of the writ petitions preferred two separate civil revision petitions against the dismissal of their respective applications u/s. 12(2). Of CPC which civil revisions have been dismissed by the learned Additional District Judge Nankana Sahib through a consolidated judgment dated 02.08.2010.
14. The judgments passed in the applications u/s. 12(2) of CPC and the subsequent civil revisions have been assailed through the two separate Writ Petition Nos. 22772/2010 and 22773/2010 by petitioners.
15. The learned counsel for the petitioners in all the three cases has contended that the fate of the writ petitions depends upon the outcome of the civil revision. It is contended by the learned counsel for the petitioners that although the predecessor-in-interests of some of the petitioners were party in the suit instituted in the year 1956 and decided through the judgment and decree dated 17.7.1956 but the said judgment and decree is not binding upon those petitioners whose predecessor in-interests were not party in the said suit. The learned counsel argued that the pedigree table in this respect which is placed at page 2 of petition u/s. 12(2) moved against the judgment and decree dated 17.7.1956 is relevant. The learned counsel for the petitioners contends that only the predecessor-in-interests of the petitioners of Civil Revision No. 3588 of 2010 namely Kamal Din, Muhammad Bukhsh, Ghulam Rasool and Noor Muhammad sons of A.I Bukhsh and Nawab Din s/o Jalal Din had filed the suit Exh.D13 on 07.03.1956 in which the judgment and decree dated 17.7.1956 was passed and the remaining petitioners or their predecessor-in-interests were not party to the litigation resulting into the judgment and decree dated 17.7.1956 therefore it is not binding upon all the petitioners and the dismissal of the suit of the petitioners simply on the ground that the judgment and decree dated 17.7.1956 has settled down the controversy of ownership of the subject land has been illegally made by the two Courts below. It is next contended that the principles of res judicata were also not applicable and that the question of limitation also does not arise in the ,matter. The learned counsel for the petitioners further contends that the petitioners were well within their rights to seek the relief as prayed for. The learned counsel for the petitioners contended that the learned first Appellate Court did not discuss the important aspect of the matter involved in the controversy and has dismissed the civil revisions in an illegal manner.
16. It is thus prayed that the judgments and decrees passed by the two Courts below be set aside and the suit instituted by the petitioners subject-matter of Civil Revision No. 3588 of 2010 be decreed as prayed for. It is further prayed that the judgment and decree dated 21.6.2003 be set aside.
17. I have considered the arguments of the learned counsel for the petitioners.
18. It is admitted fact that the subject-matter of the litigation in the year 1956 was the subject property which is subject-matter of the instant three petitions. The predecessor-ininterests of the parties was Muhammad Ismail and he had four sons namely Sindhi, Karim Bukhsh, A.I Bukhsh and Shadi. It is also an admitted fact that Shadi died issueless and the other three brothers were his successors. The judgment and decree dated 17.7.1956 was passed in a suit instituted by Kamal Din, Muhammad Bukhsh, Ghulam Rasool and Noor Muhammad who are the sons of. A.I Bukhsh and the fifth plaintiff was Nawab Din s/o Jalal Din. This Nawab Din is the grand-son of A.I Bukhsh because Jalal Din is admittedly the son of A.I Bukhsh. The defendant of the suit was Peer Muhammad s/o Umar Din which Umar Din is the son of Sindhi. A.I Bukhsh and his legal heirs did not allege in the suit that Karim Bukhsh was in possession of any portion of the land subject-matter of the suit. Two separate suits were instituted by Peer Muhammad s/o Umar Din. One suit was instituted by Peer Muhammad against Faiz Ahmad, Nadeem lqbal and Muhammad Anwar sons of Nizam Din which Nizam-Din was son of Karim Bukhsh and this suit was for possession of house measuring 9 marlas consisting of four rooms and the judgment and decree in this suit was passed on 21.6.2003 in favour of Peer Muhammad declaring him the owner of the said house. Another suit was filed by Peer Muhammad s/o Umar Din against Muhammad Akbar s/o Ghulam Rasool in respect of another house and this Ghulam Rasool again in return is the son of A.I Bukhsh. This suit was in respect of another house comprising two rooms and was decreed through judgment and decree dated 21.6.2003 which is produced as Exh.D18 in the civil revision. In these two suits the defendants namely Faiz Ahmad, Nadeem lqbal and Muhammad Anwar sons of Nizam Din and Muhammad Akbar s/o Ghulam Rasool did not plead that the other brother of Nizam Din i.e. Fateh Din was in possession of any portion of the subject land or was having any proprietary right therein. Similarly in the suit for possession of the two houses decreed through judgment and decree dated 21.6.2003 no reference was made by the defendants of the suit in respect of any rights of the successors of A.I Bukhsh, the other brother Karim Bukhsh whose successors were party in the judgment and decree passed on 17.7.1956. The declaration of ownership of Peer Muhammad s/o Umar Din in all the three suits through the judgments and decrees, passed respectively on 17.7.1956 in respect of land and on 21.6.2003 passed in respect of two houses has the effect of declaring the ownership of Peer Muhammad in the subject-matter of the three suits and constitute the judgments in rem. All the successors of predecessor-ininterest of the two brothers Karim Bukhsh and A.I Bukhsh who were fighting against Peer Muhammad who in return the son of Umar Din son of fourth brother Sindhi are thus bound by the judgments and decrees passed in the matter.
19. The declaration of ownership in favour of Peer Muhammad in. The three suits had attained finality. The judgment and decree dated 17.7.1956 was assailed through an application u/s. 12(2) of CPC instituted in the year 2007 moved by the petitioners of Writ Petition No. 22772/2010 whereas the judgment and decree dated 21.6.2003 was assailed through an application moved u/s. 12(2) of CPC by the petitioners of Writ Petition No. 22773/2010. No element of fraud has been proved on the record. The suit subject-matter of Civil Revision No. 3588 of 2010 assailing the judgment and decree dated 17.7.1956 was instituted on 22.4.2004 and this suit was not maintainable in view of the judgment and decree dated 17.7.1956 which had attained finality in the year 1956 and constitute a past and closed transaction. This suit was rightly dismissed by the two Courts below and the Civil Revision No. 3588 of 2010 has no merits and is dismissed in limine.
20. The application u/s. 12(2) of CPC moved for setting aside of the judgment and decree dated 17.7.1956 moved by the petitioners of Writ Petition No. 22772 of 2010 was instituted in the year 2007 and was not only duplication of the civil suit instituted in the year 2004 but was hit by the principles of res judicata and estoppel as well as was barred by time and had no merits as well. The application u/s. 12(2) of CPC forming basis of the Writ Petition No. 22773 of 2010 which arose out of application u/s. 12(2) of CPC for setting aside of the judgment and decree dated 21.6.2003 moved by the petitioners before the learned Civil Judge Nankana Sahib, was also liable to be dismissed on an additional ground as well that the judgment and decree dated 21.6.2003 was further assailed through an appeal before the learned Additional District Judge Sheikhupura and the appeal was dismissed vide judgment and decree dated 12.3.2005 whereas the application under Section 12 (2) of CPC was moved before the Civil Judge Sheikhupura and not before the first Appellate Court.
21. The honourable Supreme Court of Pakistan in the judgment reported as PIR BAKHSH v.
CHAIRMAN, ALLOTMENT COMMITTEE AND OTHERS (PLD 1987 SC 145) laid down the following principles of law regarding the judgments in rem and personam holding that the judgments declaring the rights of the person in respect Of property or status are judgment in rem. The following extracts of the reported judgment from pages 166 to 168 are relevant and are reproduced:- "The High Court in dislodging the appellants held that the judgment of the Supreme Court was not a judgment in rem, but in personam. The terms "in rem" and "in personam" are of Roman law used in connection with actio that is, actio in rem and actio in personam to denote the nature of actions, and with the disappearance of the Roman forms of procedure, each of the two terms "in rem" and "in personam" got tagged with the word judgments to denote the end-products of actions in rem and actions in personam. Thus, according to the civil law an actio in which a claim of ownership was made against all other persons was an action in rem and the judgment pronounced in such action was a judgment in rem and binding upon all persons whom the Court was competent to bind, but if the claim was made against a particular person or persons, it was an action in personam and the decree was a decree in personam and binding only upon the particular person or persons against whom the claim was preferred or persons who were privies to them.
Monir in his "Principles and Digest of the Law of Evidence" at page 563, gives the import of these terms as under:--- "The point adjudicated upon in a judgment in rem is always as to the status or the res and is conclusive against the world as to that status whereas in a judgment in personam, the point, whatever it may be, which is adjudicated upon, it not being as to the status of the res, is conclusive only between parties or privies. A decision in rem not merely declares the status of the person or thing, but ipso facto renders it such as it is declared; thus, a decree of divorce not only annuls the marriage, but renders the wife feme sole: adjudication in bankruptcy not only declares; but constitutes the debtor a bankrupt; a sentence in a prize Court not merely declares the vessel prize, but vests it in the captor."
Section 41 of the Evidence Act does not use the term "judgment in rem", but it incorporates the law on the subject of judgments in rem, and makes them relevant not only against strangers but also conclusive of certain matters such as whether a person was entitled to a legal character or to any specific thing not as against any specified person but absolutely.
Judgments in rem are an exception to the rule of law that no man should be bound by the decision of a Court of Justice unless he or those under whom he claims were parties to the proceeding in which it was given. This rule of law is referable to the maxims of Roman Law namely, "Res inter alios judicata nulium inter alios prejudium facit", or "Res inter alios acta alteri nocere non debet"'. Such exception of the judgment in rem in the Roman Law was the foundation of the exception in English Law. Section 41 of the Evidence Act is the foundation for the exception of judgment in rem in our corpus jut-is. The reason why a judgment should not be used to the prejudice of a stranger is that he is denied the fundamental right to make a defence, or to examine or cross-examine witnesses or to appeal from a judgment which aggrieves him. This is the requirement of most manifest justice and good sense.
If he was party, then the judgment of the competent Court as a plea is a bar or as an evidence conclusive between the same parties upon the same matter directly in question in another Court or in another action between the same parties in the same Court. In legal parlance this bar is known as estoppel by judgment or res judicata. Cooley in his "Treatise on the Constitutional Limitation", at page 47, deals with the bar in these words:- "And as to the first, we understand the rule to be, that a decision once made in a case, by the highest Court empowered to pass upon it, is conclusive upon the parties to the controversy and I heir privies, who are not allowed afterwards to revive it in a new proceeding for the purpose of raising the same or any other questions. The matter in controversy has become res judicata, a thing definitely settled by judicial decision; and the judgment of the Court imports absolute verily.
Whatever the question involved, whether the interpretation of a private contract, the legality of an individual act, or the validity of a legislative enactment, the rule of finality is the same. The controversy has been adjudged, and once finally passed upon is never to be renewed."
And further:--- "The rule of conclusiveness to this extent is one of the most inflexible principles of the law; insomuch that even if it were subsequently held by the Courts that the decision in the particular case was erroneous, such holding would not authorize the reopening of the old controversy in order that the final conclusion might he applied thereto."
Section 11 of the Civil Procedure Code incorporates this principle.
"It matters nothing whether the error, if any, was an error on a point of fact or on a point of law"....
(AIR 1928 Cal. 777).
"Courts of law are in no way authorized to alter the rights of parties. They profess, at all events to ascertain the law, and if the binding character of a decision upon a concrete question as to the terms of a particular holding is to fluctuate with every alteration in the current of authority the Courts will become an instrument for the unsettlement of rights rather than for the ascertainment thereof. The principle relied upon is abhorrent to Section 11, Civil Procedure Code and to the general intention of the doctrine of res judicata. If authority be wanted for its rejection a very plain authority can bejbund in the case of Gown Koer v. Audh Kaur (1884 10 Cal. 1087)"...
"The question whether decision is correct or erroneous has no bearing upon the question whether it operates or does not operate as res judicata. Tho doctrine is that in certain circumstances the Court shall not try a suit or issue but shall deal with the matter on the footing that it is a matter no longer open to contest by reason of a previous decision. In these circumstances it must necessarily be wrong for a Court to try the suit or issue, come to its own conclusion thereon, consider whether the previous decision is right and. Give effect to it or not according as it conceives the previous decision ,to be right or wrong. To say, as a result of such disorderly procedure, that the previous decision was wrong and that it was wrong on a point of law, or on a pure point of law, and that therefore, it may be disregarded, is an indefensible form of reasoning. For this purpose, it is not true that a point of law is always open to a party."
"On the other hand it is plain from the terms of Section 11 of the Code that what is made conclusive between the parties is the decision of the Court and that the reasoning of the Court is not necessarily the same thing as its decision. The object of the doctrine of res judicata is not a fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend, and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has been finally decided."
22. In view of the above all the three petitions i.e. Civil Revision No. 3588 of 2010 and Writ Petitions Nos. 22772 & 22773 of 2010 have no merits and are dismissed in limine.
Civil revision .
2013 C,L.R. 1093 [Lahore] Present: NASIR SAEED SHEIKH, J.
Syed Abrar Hussain Naqvi Versus Addl. District Judge, etc. Writ Petition No. 4741 of 2013, decided on 28th February, 2013.
CONCLUSION
(1) It is not necessary that all applications moved under Section 12(2), CPC be decided after recording of evidence.
GIFT DECLARATION --- (Consent decree) Specific Relief Act (I of 1877)--- ---S. 42---Constitution of Pakistan, 1973, Art. 199---Civil Procedure Code, 1908, S. 12(2)---Validity of gift---Suit for declaration--- Features of case---Claim was that said owner of land had gifted the entire her ownership to the plaintiff---A consenting written statement was submitted----After death of said owner lady during course of proceedings, her LRs had raised no objection to the grant of decree---Trial Court accordingly dismissed suit---Petitioner filed an application under Section 12(2), CPC, stating therein that said deceased lady enjoyed no more status than that of a limited owner, therefore, she could not have made a statement in favour of plaintiff as absolute owner of subject land---Trial Court dismissed suit of appellants under Section 12(2), CPC which determination were upheld by revisional Court---Nonframing of issues---Validity---As apparently, petitioner was not in possession of any document showing the subject property to be that of named husband of the donor, there was no substance in application under Section 12(2), CPC so as to put it to trial---Two Courts below had not interfered with a consent decree which had been passed on basis of statements recorded by LRs as well as the deceased herself--It was not legally correct argument that notwithstanding the fact that deceased woman was recorded as an absolute owner of subject land in the record of rights of the year 1988-89, she be presumed to be a limited owner as a widow under customary law---Writ .
(Para 8) {{URDU TEXT}} [Plaintiffs' suit for declaration was based on gift in respect of land Iii qus3tion. Deceased lady owner filed a consenting written statement at- the legal heirs raised no objection. Accordingly, suit was decteed. Petitioners' application u/s. 12(2), CPC was dismissed by Courts below. High Court dismissed writ petition].
Petitioner In person.
Date of hearing: 28th February, 2013.
NASIR SAEED SHEIKH, J. - One Moazma Khatoon instituted a suit for declaration and permanent injunction on 31.5.2000 against Dilbari Begum widow of Syed Jalal Hussain. This suit was instituted in the Court of Senior Civil Judge, Mandi Bahauddin. The case of Moazama Khatoon was that Dilbari Begum was owner of 314 KaneIs, 12 Marlas fully described in para-B of the plaint. She was also owner of house described in para-A of the plaint. Moazma Khatoon claimed that Dilbari Begum has gifted the entire her ownership to the plaintiff. Dilbari Begum appeared in the Court and submitted a consenting written statement. During the pendency of the suit, Dilbari Begum died and her LRs were also brought on the record as defendants in the suit. Those LRs are Sakeena Khatoon, Tasneem Kausar, Nargus Bano, Sanjeeda Bano and Maqadsa Khatoon. They also appeared in the suit and made a statement that they have no objection upon passing the decree in favour of Moazama Khatoon. Accordingly the learned Civil Judge on the basis of those consenting statements decreed the suit in favour of Moazma Khatoon on 23.4.2009. This suit remained pending for about nine years. A number of persons moved applications under Order I, Rule 10 of CPC which was dismissed.
2. An application under Section 12(2) of CPC was moved on 21.07.2009, by two persons Syed Tasleem Hussain son of Syed Talib Hussain and Syed Abrar Hussain Naqvi son of Jamila Begum who is daughter of Talib Hussain. It was alleged in the application under Section 12(2) of CPC by the petitioners that the subject land was owned by Syed Jalal Hussain son of Syed Muhammad All who was in turn son of Syed Muhammad Naqi. Syed Jalal Hussain was stated to have married with Dilbri Begum and had died issueless before 1947 but no specification of his date of death was given in the application. It was further, alleged in the application under Section 12(2) of CPC that the true owner of the land belonging to Dilbari Begum was Syed Jalal Hussain son of Syed Muhammad A.I.
The applicants of application under Section 12(2) of CPC claimed their relationship with Jalal at third degree. It was further contended that as Dilhari Begum was not full owner of the subject property, she was just a widow of Syed Jalal Hussain and enjoyed no more status than that of a limited owner, therefore, she could not have made a statement in favour of Moazama Khatoon as absolute owner of the subject land and therefore the judgment and decree dated 23.4.2009 was the result of fraud and misrepresentation. It is further contended that after her death her LRs also could not have consented to the passing of the decree dated 23.4.2009.
3. The application under Section 12(2) of CPC was contested. The learned Civil Judge, Mandi Bahauddin through order dated 31.3.2012 dismissed this application under Section 12(2) of CPC holding that no fraud was committed which could have given a cause of action for filing an application under Section 12(2) of CPC against the judgment and decree dated 23.4.2009. A revision petition was also filed by the petitioners against the order dated 31.3.2012 dismissing the application under Section 12(2) of CPC. This civil revision came up for hearing before a learned Addl. District Judge, Mandi Bahauddin which was also dismissed vide judgment and decree dated 28.11.2012.
4. Through the instant writ petition, the order passed by the learned Civil Judge, Mandi Bahauddin dated 31.3.2012 and the judgment dated 28.11.2012 passed by the learned Addl. District Judge have been assailed.
5. The learned counsel who has argued the case himself as he claimed to be a party in the application under Section 12(2) of CPC contended that Dilbari Begum was reflected in the record of rights for the year 1988-89 as widow of Syed Jalal Hussain, therefore, a presumption arises that she was herself not owner of the land but inherited the land of Syed Jalal Hussain as per customary law and thus she could not become absolute owner of the subject property. It is further contended that in the application under Section 12(2) of CPC the petitioners claimed that the subject property was owned by Syed Jalal Hussain son of Syed Muhammad A.I and that this statement was sufficient for the petitioners to seek the decision of the application under Section 12(2) of CPC with an opportunity to prove the ownership of Syed Jalal Hussain through some documents but the learned counsel contends that as the application under Section 12(2) of CPC has been dismissed summarily, therefore, the prejudice has been caused to the case of the petitioner denying him the opportunity to prove the ownership of Syed Jalal Hussain. It is next contended that even if it is presumed that there is no documentary proof that the property was owned by Syed Jalal Hussain, it is not necessary to produce documentary proof of ownership of Syed Jalal Hussain as the mere entry in the record of rights for the year 1988-89 in favour of Dilbari Begum, reflecting her as the widow of Syed Jalal Hussain was sufficient proof of the fact that she was inheriting the subject property under customary law. The learned counsel contends that the impugned orders passed by the two Courts below be set aside and the case be remanded to the learned Civil Judge for allowing an opportunity to the petitioners to prove the contentions raised in application under Section 12(2) of CPC. The learned counsel has placed reliance to the case-law reported as Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shaft and others (PLD 1971 S.C.791) and Syed Muhammad Munir (represented by 10 heirs) and another v. Abu Nasar, Member (Judicial), Board of Revenue, Punjab, Lahore and 7 others (PLD 1972 SC 346) to contend that every widow under the customary law even if professing the religion of Islam before partition was presumed to be a limited owner of the property inherited from her husband.
6. I have considered the arguments of the learned counsel for the petitioners.
7. The petitioner has come before this Court in Constitutional jurisdiction by filing the instant writ petition. The learned Addl. District Judge in the judgment dated 28.11.2012 has recorded at page three of the judgment passed by him the following observation:- "It is important to note that the petitioners could not bring on record any proof that initially the property in dispute was allotted in the name of Syed Jalal Hussain (deceased husband of Mst.
Dilbari Begum) and the said property subsequently was inherited by MsL Dilbari Begum after the death of Syed Jalal Hussain as her widow."
8. In the light of the above-mentioned observation, this Court specifically put a question to the learned counsel that in order to persuade the interference by this Court, is the petitioner in possession of any document that the subject property was allotted to Syed Jalal Hussain or was his ownership and that Dilbari Begum inherited the same from her husband, the learned counsel contends that this is what he wanted to prove before the learned Trial Court in this matter. No such documentary proof has however been placed on the record in the instant writ petition. The bona fides of the contention raised by the learned counsel are seriously open to question. As apparently the petitioner is not in possession of any document showing the subject property to be that of Syed Jalal Hussain, there was no substance in the application under Section 12(2) of CPC so as to put it to trial. It is not necessary that all applications moved under Section 12(2) of CPC be decided after recording of evidence. The two Courts below have not interfered with a consent decree which has been passed on the basis of statements recorded by the LRs of Dilbari Begum as well as of Dilbari Begum herself. It is not legally correct argument to raise by the petitioner that notwithstanding the fact that Mst. Dilbari Begum was recorded as an absolute owner of the subject land allotted to her in the record-of-rights of the year 1988-89, she be presumed to be a limited owner as a widow under the customary law. The case-law relied upon by the petitioner has no relevance and applicationt the facts and circumstances of the instant case. No case for interference under Section 12(2) of CPC was made out. In exercise of my Constitutional jurisdiction, I am not persuaded to interfere in the orders passed by the two Courts below. The instant writ petition is accordingly. Dismissed in limine . .