' AMIN-UD-DIN KHAN, J.---Through this civil revision the petitioners have challenged the judgment and decree dated 30-9-2011 passed by the learned Addl: District Judge, Layyah, whereby the appeal filed by the respondents/defendants was accepted, by way of which, the judgment and decree dated 14-7-2011 passed by the learned Senior Civil Judge, Layyah decreeing the suit of the petitioner/plaintiff were set aside.
2. The brief facts of the case are that the petitioners/plaintiffs filed a suit for declaration that they be declared owner in possession of suit property mentioned in the head note of plaint. They have challenged Notification No, 5125/C, award dated 9-9-1955 and Mutation No,189 attested on 3-1- 1985. The written statement was filed and suit was contested. The parties were directed to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the completion of trial vide judgment and decree dated 14-7-2011 suit was decreed by the learned trial Court. An appeal was preferred by the respondents/defendants, which was accepted vide judgment and decree dated 30-9-2011 and the judgment and decree passed by the learned trial Court decreeing the suit of the petitioners/plaintiffs, were set aside.
3. Learned counsel for the petitioners/ plaintiffs argues that through well reasoned judgment the learned trial Court has decreed the suit of petitioners/ plaintiffs but the learned first appellate Court has reversed the well reasoned findings recorded by the trial Court without any justifiable reasons; that the view taken by the learned first appellate Court on question of law is not sustainable and further that through wrong interpretation of evidence the findings of, trial Court have been reversed, therefore, the findings recorded by the learned lower appellate Court are not sustainable.
Lastly argues that the appeal was filed incompetently, therefore, was not competent. Prays for acceptance of this civil revision and setting aside the judgment and decree passed by the learned lower appellate Court and restoration of judgment and decree of the trial Court.
4. On the other hand, learned counsel representing respondent No,3 argues that the objection raised today with regard to incompetent filing of appeal was never raised before the appellate Court and even has not been raised when instant civil revision was filed, therefore, this objection has no force and not sustainable under the law. States that even the predecessor of petitioners- plaintiffs on the same cause of action died a suit on 11-2-1989, which was distnissed on 1-1-1992 and the suit subject matter of this civil revision cannot proceed. Prays for dismissal of this civil revision.
5. I have heard the learned counsel for- the parties at full length and also gone through the record minutely with their able assistance.
6. The base of claim of petitioners/ plaintiffs is a decree of declaration claimed by the plaintiffs in their favour about the property measuring 247-kanals 09-marlas against Abdul Rasheed and Abdul Razzaq dated 17-9-1970. The further claim has been built up on the basis of a letter issued by the respondents-defendants' department bearing No,DGH/ADI-25/477-79 dated 21-7-1981, whereby the exchange of land has been claimed. The notification No,5125/C, award dated 9-9- 1955 as well as mutation No, 189 attested on 3-1-1985 about the suit land measuring 247-kanals 09-marlas situated in Khata No,114 Mouza Sumra Thall Jandi Patti Janobi (Chah Tindan Wala)
Tehsil Layyah according to Jamabandi for the year 1943-44, have been challenged that the notification and mutation have no adverse effect against the rights of petitioners/plaintiffs. '
7. The important matter for consideration and decision of the lis are the legal value of decree dated 17-9-1990; the possession of letter allegedly issued by defendant No,3 dated 21-7-1981 that whether the plaintiffs can challenge the notification of acquisition and award dated 9-9-1955; and the mutation No,189 attested on 3-1-1985.
8. I take up the above mentioned points one by one and the legal objections raised by the respondents with regard to previous filing of suit.
' A copy of order/judgment in a suit titled "Abdul Wahab v. Abdul Raheed etc." has been produced as Exh.P-7 and decree sheet as Exh.P-8, which shows that a declaratory suit was filed on 18-9-1970 on the basis of an oral sale in favour of Abdul Wahab and Mst. Bahar Khanum, against Abdul Rasheed and Abdul Razzaq sons of Niaz Muhammad Khan, claiming ownership of 1/3rd of the property of Khata No,114 Mouza Sumra Thall Jandi Tehsil Layyah, which comes to 247-kanals 09- marlas. The said defendants were represented through Attorney Ch. Ghulam Sarwar son of Ch. Ghulam Rasool. The attorney of said defendants accepted the claim of plaintiffs of suit and suit was decreed on the basis of compromise. The decree sheet follows the judgment. The reliance of learned counsel for respondent No,3 upon "2003 SCM R 767 (Malik Yar Muhammad and others v.
Muhammad Farooq Ahmed Khan and others)" that if a suit is filed and attorney of defendants admits the claim of plaintiff, it is a strong stance to hold that fraud has been committed. I bow, before the judgment passed by the august Supreme Court of Pakistan, that is directly applicable when an application under section 12(2) of the C.P.C. Is filed but in this case the principles of law laid down by the august Supreme Court are fully applicable. Further I am of the considered view that a declaratory decree declares a pre-existing right and cannot create or confer a new in favour of plaintiff. When a declaration is sought, it is the duty of plaintiffs to prove their pre-existing right.
Only on the basis of statement, of allegedly made by the attorney of defendants conceding the suit, passing of a decree declaring the plaintiffs as owner on the basis of any alleged oral sale was not competent when admittedly the attorney was husband of plaintiff No,2 i,e, Mst. Bahar Khanum, when the judgment and decree do not show that the Court has seen the ownership of defendants before granting the decree. It is well settled that a person cannot transfer a better title than he himself have. Although that decree is not directly under challenge in this suit but as the base of claim of plaintiffs is upon that decree and certified copies of the order/judgment and decree sheet have been produced as Ex.P-7 and Ex.P-8, therefore, there was no option with the Court but to see the decree and its legal value and the right created in favour of decree holders under the decree.
In my view that decree does not create or confer a right to the plaintiffs of that suit, therefore, the claim of petitioners/plaintiffs was not sustainable.
' The letter dated 21-7-1981 claimed by the plaintiffs for exchange of land was subsequently cancelled by the department in the year 1984 vide letter No,DG-HMSADT-IH-25/1630 dated 30-4- 1984, which has been produced as Ex.D-27, therefore, this base of claim of plaintiffs also goes. In these circumstances, when very base of claim of plaintiffs is not available with them, the, plaintiffs were having no right to challenge the attestation of mutation No,189 attested on 3-1-1985.
' Further the notification of acquisition and award dated 9-9-1955 cannot be challenged by the plaintiffs whose claim of acquisition of right in the suit property is long after the acquisition of that land for Thal Development Authority. When the plaintiffs have challenged the ' A notification of acquisition at least it is admitted that the land was acquired in the year 1955, therefore, in the light of judgment of august Supreme Court reported as "1986 SCM R 863 (Sayyed Muhammad Ali Shah v. Additional Settlement Commissioner/Colonization Officer, Thal Project, District Sahiwal)" when the Federal Government has acquired the property for Thall Development Authority, the subsequent withdrawal of such sanction of acquisition by the Chief Settlement Commissioner has no value. In the light of judgment referred supra the petitioners/ plaintiffs have absolutely no right to challenge the acquisition which was even more than one and a half decade before the claim of creation of right of plaintiffs in the property already acquired for Thal Development Authority.
9. There is a further limb of the fact in this case. The case of respondents' department is that the petitioners/plaintiffs were given alternate land in Chak No,128- A/TDA Tehsil Layyah vide Ex.D-26 and again claiming the land in Khata No,114 Mouza Sumra Thall Jandi Tehsil Layyah is mala fide and they want to procure double alternate allotment. This contention of learned counsel for the respondents is confirmed by Ex.D-26, which is Mutation No,51 whereupon this endorsement has been made and through this mutation Mst. Bahar Khanum and Abdul Wahab transferred the land measuring 31-kanals 09-marlas in favour of Ahmad Khan son of Lal Khan. This evidence is sufficient to hold that even after receiving alternate land of the original land got through decree of Civil Court dated 17-9-1970, the claim in this suit was for receiving of double alternate land, which is not permissible. The findings of learned lower appellate Court whereby the suit filed by the petitioners/plaintiffs has been dismissed, are in accordance with law and no exception can be warranted thereto.
10. In the light of what has been discussed above, I see no force in this civil revision. It is hereby dismissed.
C.M. No,178-C-2012.
11. This application has been filed by Muhammad Imran Manzoor, Ahmad Adnan Manzoor sons of Dr. Manzoor Ahmad, Mst. Fauzia Nudrat, Alia Nighat and Nabila Asmat daughters of Manzoor Ahmad Malik, under Order I Rule 10 of the C.P.C. For impleading as respondents in the civil revision.
As the civil revision has been dismissed, therefore, no need to further dilate upon this application and as such the same stands disposed of.