' AMIN-UD-DIN KHAN, J.---Through this civil revision the petitioners have challenged the judgment and decree dated 31.03.2010 passed by the learned Additional District Judge, Attock Camp at Fateh Jang, whereby the appeal filed by them has been dismissed and the judgment and decree dated 25.06.2008 passed by the learned Civil Judge 1st Class, Fateh Jang, whereby the suit for declaration with permanent and mandatory injunction filed by the petitioners/plaintiffs was dismissed.
2. Briefly, the facts as leading to this civil revision are that the petitioners/ plaintiffs on 18.06.2001 filed a suit for declaration that Mehboob Elahi died issueless and defendant No,2 Naveed Elahi was adopted son of deceased, whereas the deceased was survived by his two widows. Naveed Elahi is son of Rizwana Begum who is sister of widow of deceased Nazakat Bibi and father of Naveed Elahi is Raja Abdul Hameed, therefore, challenged mutation of inheritance in favour of Naveed Elahi and the gift mutations etc by deceased in his favour. The plaintiffs claimed 7/8th share in property as collateral of the deceased. The written statement was filed and suit was contested. Learned trial court framed the issues and invited the parties to produce their respective evidence. The plaintiffs produced oral as well as documentary evidence. When the case was fixed for evidence of the defendants, learned counsel for defendants Nos.1 and 2 on 02.02.2008 made a statement that the matter has been settled between the parties, therefore, the defendants do not want to produce the evidence. Learned counsel for defendant No,3 also got recorded the similar statement and on the same day a written compromise deed arrived at between the parties written upon stamp paper of Rs,100/- was filed, whereby defendant No,2 agreed that the suit to the extent of property, mentioned in Para 4 of the plaint situated in Tehsil Wazirabad District Gujranwala fully mentioned with khasra numbers, be decreed in favour of plaintiffs and to the extent of remaining land mentioned in Para 4 the suit be dismissed and it was also stated by defendant No,2 that the property received by defendants Nos. 1 and 2 from the suit property through mutation of inheritance No,3665 attested on 25.04.1997 of inheritance of Mehboob Elahi, half of property measuring 13-kanals 4-marlas if suit be decreed the defendants have no objection and to the extent of remaining land the suit will be presumed to have been dismissed. Learned trial court on the same day recorded the statement of defendant No,2 who was major at that time, as at the time of filing of suit he was minor and statement of his counsel, who stated that in accordance with mark "A" the compromise he has no objection if the suit be decided. The statement was recorded by the Court on the back side of stamp paper. The record shows that the case was adjourned for 22.02.2008 on the basis that there is some injunctive order issued by the High Court. Ultimately on 25.06.2008 learned trial court dismissed the suit on the basis that under Order XV Rule 1 of the C.P.C.
Suit is liable to be dismissed, as through the agreement the plaintiffs have admitted inheritance mutations and further Naveed Elahi is ready to transfer the property in favour of plaintiffs. An appeal was preferred before the learned first appellate court, which also met with the same fate vide judgment and decree dated 31.03.2010 passed by the learned Additional District Judge, Attock Camp at Fateh Jang, observing that the parties may execute the compromise themselves by having recourse to the concerned revenue department. Hence, this civil revision.
3. Learned counsel for the petitioners/ plaintiffs argues that the view taken by both the learned courts below is absolutely wrong and against the settled principles of law; that Order XXIII Rule 3 of the C.P.C. Was applicable to the facts of this case and not Order XV Rule 1 of the C.P.C. And both the courts below fell in error while applying Order XV Rule 1 of the C.P.C. And suit was liable to be decreed. Relies upon "2011 YLR 1357 (Sheikh Ghulam Qasim through Legal heirs and others v.
Abdullah Khan and others), 2010 YLR 984 (Noor Muhammad and others v. Khan Muhammad and others), 2007 MLD 1374 (Messrs Orient Occident (Pvt.) Ltd. Through Director and others v. Messrs Upaza Commercial Enterprises through Proprietor and others) and 2004 YLR 1775 (Shaukat Habib and 5 others v. Raja Muhammad Bashir and another)."
4. On the other hand, learned counsel for the respondents-defendants argues that defendant No,2 has not denied from the agreement and according to him the plaintiffs can file a fresh suit on the basis of agreement executed by defendant No,2 in the court and further that when the plaintiffs have admitted inheritance mutations, their suit was liable to be dismissed, therefore, the instant revision be dismissed. Learned counsel for the respondents/defendants also relies upon the judgments reported as "2009 SCMR 1268 (Peer Dil and others v. Dad Muhammad), 2015 YLR 89 (Shah Rasool and others v. Maulana Ghulam Rahim and others), 2009 YLR 1621 (Ch. Muhammad Saleem v. Additional District Judge Sahiwal and 2 others) PLD 2015 Supreme Court 327 (Ghazala Tehsin Zohra v. Mehr Ghulam Dastagir Khan and another) PLD 2002 Lahore 10 (Ahmed Nawaz v. Haji Allah Ditta), 2012 SCMR 1373 (Noor Muhammad and others v. Mst. Azmat-eBibi), 2005 SCMR 401 (Mst. Asma Naz v. Muhammad Younas Qureshi), 2005 MLD 364 (Munir Ahmad and 6 others v.
Muhammad Saddique), 2010 SCMR 817 (Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish and another), 2006 PCr.LJ 969 (Mohsin Saleem and another v. The State) and 2003 SCMR 1183 (Muhammad Nazir and others v. Ali Muhammad through Legal Heirs and others)."
5. I have heard the learned counsel for the parties on the legal point
6. In the agreement it is clearly mentioned that suit to the extent of property mentioned in the agreement be decreed and admittedly the property mentioned in the agreement mark "A" is part of suit property, therefore, when it is clearly mentioned in the agreement that suit to this extent is liable to decree. The first portion of agreement which has been mentioned supra to that respect is mentioned as under:-- {{URDU TEXT}} ' Whereas to the extent of second part of compromise mark "A" it is mentioned as under:-- {{URDU TEXT}} ' I have noticed that the statement of defendant No,2 Naveed Elahi along with his counsel was also recorded on 02.02.2008. I am astonished that how the learned trial court as well as learned first appellate court has applied the provision of Order XV, Rule 1 of the C.P.C. It is a case of application of Order XXIII, Rule 3 of the C.P.C. Whereby it is clearly a settlement and compromise between the parties and according to the same suit was liable to be decreed. Needless to state that the property, which is subject matter of compromise, is part of suit property. If in a compromise the property which is not the suit property is included, in that case only the court can record compromise but cannot pass a decree or if record the compromise, that part cannot be executed through the court if that is not a suit property. In case in hand admittedly the property subject matter of compromise mark "A" is part of suit property and defendant has clearly stated that the suit to the extent of matter settled between the parties be decreed in favour of plaintiffs, despite that the suit has been dismissed by the learned trial court and the appeal filed by the plaintiffs has also been dismissed, therefore, the judgments and decrees passed by both the learned courts below are absolutely against the law and as such not sustainable.
7. The case of plaintiffs consistently remained that they are entitled to decree in accordance with the compromise. The further fact is also notable that the plaintiffs have never admitted that they admit defendant No,2 to be the son of Mehboob Elahi. In the settlement the only subject matter of compromise was that out of the suit property they have agreed to receive part of property from their entitlement and settled the matter and relinquished part of their claim, therefore, the view taken by both the courts below that the plaintiffs admitted defendant No,2 Naveed Elahi to be the son of Mehboob Elahi is also factually incorrect.
8. The case law referred to by the learned counsel for the petitioners/plaintiffs is fully applicable to the facts of this case, whereas the case law relied by the learned counsel for the respondents/defendants is absolutely not applicable to the facts of this case, as the parties have not stated before the court that their compromise be recorded and suit be disposed of or the plaintiffs will get the execution of agreement out of the court.
9. In view of above discussion, this civil revision is accepted and the impugned judgments and decrees passed by both the learned courts below are set aside. The suit of the plaintiffs in accordance with the compromise is decreed in their favour.