' AMIN-UD-DIN KHAN, J.---Through this civil revision petitioners have challenged the judgment and decree dated 31-10-2006 passed by learned Additional District Judge, Lahore whereby appeal filed by the respondents was allowed and judgment and decree dated 29-9-2004 passed by learned Civil Judge; Chunian dismissing the suit filed by the respondents-plaintiffs, was set aside.
2. Brief facts of the case are that on 14-4-1986 plaintiffs-respondents filed a suit for declaration and mandatory injunction etc. As per pleadings of the plaintiffs, they previously filed a suit on the same cause of action, which was rejected by the learned Civil Judge, Chunian vide order dated 22-5- 1985 despite the fact that suit was proceedable and in the power of attorney dated 19-3-1982 no rights were given to the attorney to sell the property and there were other facts also in the light of which the suit was proceedable and was not liable to be rejected. Second suit was filed and withdrawn on 30-3-1986 with permission to file a fresh one as there were technical defects in the said suit. The case of the plaintiffs that Zaman Khan husband of plaintiff No, 1 as well as father of plaintiffs Nos. 2 and 3 was owner of land measnring 195 kanals, 19 marlas, fully described in Para-4 of the plaint. As per averments in the plaint that said Zaman Khan on 7/8-12-1973 appointed Ghulam Hussain brother of plaintiff No, 1 as his special attorney. Another power of attorney was also constituted in favour of Ghulam Hussain on 27-1-1976 as he was proceeding to Malaysia. It is stated that after that despite efforts plaintiffs have not heard of said Zaman Khan, therefore, except plaintiffs no one else is entitled to inherit him, hence, they got entered Mutation No,785 for inheritance of Zaman Khan on 3-11-1980 but same could not be attested. In their suit they have further challenged that the power of attorney dated 19-3-1982 was fictitiously got prepared in favour of defendant No, 1 and on the basis of said power of attorney, by committing fraud the property has been transferred in favour of defendants. They have challenged another power of attorney on behalf of Zaman Khan dated 3-1-1983 and also challenged the transfer of property of Zaman Khan on the basis of said power of attorney. Written statement was filed. Suit was contested. Learned trial court on 26-2-1989 framed the issues and invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence.
After the closing of trial, vide judgment and decree dated 29-9-2004 the learned trial court dismissed the suit. Appeal was preferred which was allowed by the learned first appellate court vide judgment and decree dated 31-10-2006. Hence, this revision petition.
3. Learned counsel for the petitioners argues that the plaint of the first suit was though rejected but suit was also dismissed on the basis of findings recorded by the learned trial court, therefore, states that the findings of fact recorded against the plaintiffs-respondents were res judicata and the present suit was not competent. Further states that in accordance With Article 123 of the Qanun-e- Shahadat Order, 1984 it was the duty of the plaintiffs-respondents to prove the death of said Zaman Khan. States that even for application of Article 124 of the Qanun-e-Shahadat Order, 1984 it must be proved that the person has not been heard of for seven years. Argues that plaintiffs have miserably failed to prove the same. Further states that as per their own admission the power of attorney was executed by said Zaman Khan in the year 1976, therefore, states that entrance of Mutation No, 785 on 3-11-1980 clearly shows dishonesty on the part of the plaintiffs-respondents.
Learned counsel for the petitioners while referring Exh.P.3 argues that in para-5 of the order passed by the District Collector, Kasur dated 4-4-1983 District Collector while scrutinizing the record as well as power of attorney found that said Zaman Khan is alive and plaintiff Mst. Ruqaia Khanum was advised to seek her remedy before the proper forum. Further states that the order dated 3-4-1985 passed by the Member Board of Revenue whereby revision petition filed by the plaintiffs- respondents was dismissed is concerned, states that when petitioners moved an application before the learned trial court for summoning of the record of the Member Board of Revenue, the reply was filed by the plaintiffs-respondents wherein they have stated that they have produced the copy of the order of the Member Board of Revenue, therefore, there is no need to summon the record. States that in this eventuality the petitioners-defendants opted not to press any further for summoning of the record, therefore, the learned trial court was competent to take notice of, the said judgment and also this Court can take notice of the judgment of the Member Board of Revenue dated 24-5-1987 passed in ROR.No,183 of 1984 as well as R.O.R.No,192 of 1984. Revision petition filed by the plaintiffs-respondents titled "Rugaia Khanum versus The State" (ROR.No, F92 of 1984) was dismissed while giving findings in Para No,3 of the judgment. Further that Mark-A, power of attorney dated 7-12-1973 in favour of Ghulam Hussain the real brother of plaintiff No,1 produced by the plaintiffs-respondents themselves clearly shows that Zaman Khan was having a real brother who can be an heir of Zarnan Khan and who was proper person to give evidence in this case.
Further states that plaintiff No, 11 respondent has written herself wife of Zaman Khan, she never claims the widow of Zaman .Khan. Further while relying upon the statements of the witnesses argues that they have impliedly admitted that Zaman Khan is alive.
4. On the other hand, learned counsel representing plaintiffs-respondents states that the findings recorded by the learned first appellate court are in accordance with law as well as evidence available on the file and interpretation of the evidence made by the learned first appellate court is sustainable under the law and there were no powers mentioned in the power of attorney relied by the petitioners-defendants to sell the property of Zaman Khan. Further argues that when copy of the order of Member Board of Revenue has not been produced, therefore, same cannot be relied.
Further that they have not produced any copy of Passport etc. To show that defendant went to.
Malaysia and met Zaman Khan and procured the power of attorney from him, therefore, prays for dismissal of this revision.
5. I have considered the arguments advanced by learned counsel for the parties and have gone through the record with their able assistance.
6.. So far as rejection of plaint is concerned, I am clear in my mind that under Order VII, Rule 13 of the C.P.C. Even after rejection of a plaint second suit can be filed on the basis of same cause of action but in this case the learned trial court while rejecting the plaint has also given finding of fact wherein it has been found that defendants have obtained a power of attorney from said Zaman Khan on 19-3-1982 from Malaysia and on the basis of said power of attorney Sale-deed No,834 was attested on 27-3-1982 and found that when the power of attorney was procured and on the basis of power of attorney property was transferred how the plaintiffs can challenge the power of attorney as well as transfer of the suit property. The factual findings recorded by the learned trial court while rejecting the plaint are hurdle in the way of the plaintiffs-respondents in proceeding of the present suit, as these findings are res judicata against the plaintiffs-respondents, It is true that only rejection of plaint is not bar against the plaintiffs for filing a fresh suit on the basis of same cause of action but when there were factual findings also against the plaintiffs-respondents they were bound under the law to challenge the same before the proper forum but they have opted not to challenge the same and filed a second suit which was also withdrawn with permission of the court as per narration of the plaintiffs themselves and the present suit has been filed. In this view of the matter, as the learned trial court while rejecting the plaint has also recorded the findings of fact, those are binding upon the plaintiffs unless set aside by the court of competent jurisdiction. In this regard reliance can be placed on "BeRum Masooda Abdul Haque v. Messrs Shan-eMustafa Production and another" (1985 CLC 671). As it was the case of the plaintiffs themselves that a power of attorney was given in the name of Ghulam Hussain real brother of plaintiff No, 1 on 27-1-1976 by Zaman Khan and thereafter getting the Mutation of inheritance No, 785 entered on 3-11-1980 by the plaintiffs clearly shows mala fide on their part and as the matter went up to the Board of Revenue, therefore, all this material is sufficient to hold that proceedings initiated by the plaintiffs are based upon mala fide. When a document endorsed by the Embassy of Pakistan, Malaysia in the shape of power of attorney in favour of defendant No, 1, about this document the witnesses of the defendants-petitioners have undergone a lengthy cross-examination but nothing could be recovered from their statement in favour of the plaintiffs. In this, eventuality when there is voluminous evidence that Zaman Khan was alive in the year 1982, it was the duty of the plaintiffs to prove the case pleaded by them in accordance with Articles 123 and 124 of the Qanun-eShahadat Order, 1984. Reliance can be placed on the judgments reported as "Hayat B (r2Lsentecteir) v. Mst.
Niamat Bibi and 2 others" (PLD 1978 Lahore 245) and "Balwant Rao and others v. Kerba and another"
(AIR 1953 HYD 185). Even the witnesses of the plaintiffs when a suggestion was put whether Zaman Khan is dead, they have showed their ignorance. Even I have noted that plaintiff No, 1 claims and has written herself in the plaint as well as when she appeared as a witness has stated that she is wife of Zaman Khan.
7. So far as order of Member Board of Revenue is concerned, it is true that certified copy of the order has not been produced on record by either of the parties but it is on the record that when defendants-petitioners moved an application before the learned trial court for summoning the record of the Member Board of Revenue, plaintiffs resisted the application and one of the grounds was that as they have produced photocopy of the said order of the MBR and same can be considered, therefore, there is no need to summon the record. In this view of the matter, the defendants-petitioners as well as the court were satisfied, therefore, the notice can be taken as the photocopy was an admitted one and was on the file of the learned trial court as well-as is available with this file. In this regard reliance can safely be placed on "Nathe Khan v. Mst. Rahmat Bibi and others" (PLD 1961 (W.P.) Baghdad-ulJadid 96) and "Mian Tajammul Hussain and 3 others v.
State Life Insurance Corporation of Pakistan" (1993 SCMR 1137).
8. In accordance with section 41the Muhammadan Law by D.F.Mulla an estate devolves upon the legal heirs only in case of death of the owner of the property. In this view of the matter, when plaintiffs respondents failed to prove that Zaman Khan has not been heard of for a period of 10 years, therefore, they have no right to challenge the transaction of sale of the property in favour of defendants on the basis of power of attorney by said Zaman Khan and power of attorneys duly attested by the Malaysian authorities as well as attested by Embassy of Pakistan in Malaysia, Malaysian Embassy in Pakistan and duly stamp paid with the Sub-Registrar, Chunian.
9. Learned Member Board of Revenue sent a notice in. Malaysia for the service of Zaman Khan on the address given by the parties and it is noted in the order that same has been received back on 7-11-1984 signed by him before a Magistrate of Malaysia. Learned Member Board of Revenue has noted that as the notice was sent through the Embassy of Pakistan, therefore, it is attested by the Legal Administration of Malaysia, Embassy of Pakistan which also bears ,attestation of Legal Administration of Malaysia conclusively establishes that Zaman Khan is alive and resides in Malaysia, therefore, when nothing has been brought on the record by the plaintiff-respondents against this finding, therefore, the findings recorded by the learned first appellate court ignoring all these legal points are not sustainable under the law, therefore, while allowing this revision petition findings recorded by the learned first appellate -court are set aside.