ATIR MAHMOOD, J.---The brief facts of the case are that the petitioners filed a suit for declaration with consequential relief against the respondents alleging therein that respondent No,2 Midat Mahmud was the joint owner along with Talaat Mahmud (predecessor of the present petitioners Nos, 1 to 3 and Satvat Mahmud (petitioner No,4), of the property bearing No, 186 Upper Mall Scheme, Lahore (fully described in the plaint) as they inherited the same from their deceased parents namely Sheikh Ahmed Mahmud and Begum Imtiaz Ahmed and a suit for declaration was decreed in their favour vide judgment and decree dated 15.12.2009. It is averred that there-after Talaat Mahmud (predecessor of petitioners Nos, 1 to 3) died on 11.10.2010 and another suit was filed on 02.11.2010 by petitioners Nos, 1 to 3 against the respondents i,e, L.D.A. and Public-at-Large to the effect that they are the only legal heirs of deceased Talaat Mahmud. The said suit was decreed vide judgment and decree dated 16.05.2011. On 12.04.2014, the petitioners filed the third suit seeking declaration with consequential relief with the following prayer:-- It is, therefore, prayed that as the defendant No.2 has neither been heard of nor are his whereabouts known to the plaintiffs for last almost fifteen years, hence be declared/presumed dead as per Article 124 of the Qanun-e-Shahadat Order, 1984. It is, further prayed that the suit be decreed in favour of the plaintiffs by declaring them as legal heirs of defendant No.2 who was owner of the suit property to the extent of his share. It is also prayed that the defendants Nos. 3 and 4 be directed to transfer the ownership of suit property bearing No,186, Upper Mall Scheme, Lahore to the extent of defendant No.2 's share in the names of the plaintiffs in their record. Any other relief which this learned court deems fit and appropriate in favour of the plaintiffs may kindly be granted".
2. No body except the LDA contested the suit. Out of the divergent pleadings of the parties following issues were framed by the learned trial court:- ISSUES:
1. Whether the suit is not maintainable in its present form? OPD
2. Whether the plaintiffs have no cause of action and locus standi to file instant suit?OPD
3. Whether the suit is barred under sections 42 and 43 of LDA Act 1975?OPD
4. Whether the plaintiffs are entitled to declaratory decree as prayed for?OPP
5. Relief."
3. The petitioners produced their evidence but no evidence was led by the respondent-LDA. The learned trial court, after hearing the parties, dismissed the suit vide judgment and decree dated 08.11.2014. The same was assailed in the appeal by the petitioners, which was dismissed by the learned Additional District Judge, Lahore vide judgment and decree dated 19.04.2016. Hence this revision petition.
4. Learned counsel for the petitioners submitted that the judgments and decrees of the courts below are against law and facts of the case; that the learned courts below have misinterpreted the law on the subject as the provision of Article 124 of the Qanun-e-Shahadat Order, 1984 ("The Order") is applicable whereas the provision of Article 123 of the Order, 1984 was not attracted in the present case. He prayed for acceptance of this revision.
5. No body appeared on behalf of the respondents to contest this revision petition.
6. Arguments heard. Record perused.
7. The point for consideration before this Court is, as to whether, the learned courts below rightly decided the case while relying upon the Article 123 of the Order, 1984 or as to whether the provision of Article 124 of the Order, 1984 is applicable in the present case.
8. There is no denial to the fact that the property in dispute is owned by the present petitioners being successors of predecessors i,e, Sheikh Ahmed Mahmud, Begum Imtiaz Mahmud and Talaat Mahmud. The evidence on record produced by the petitioners goes un-rebutted to the fact that the defendant No.2, Midat Mahmud was not heard of for more than 15/16 years. The learned trial court while dismissing the suit of the petitioners observed that the time period prescribed by Article 123 of the Order, 1984 is 20 years whereas the defendant No,2 was not heard of for the last more than 15/16 years. This observations of the learned trial court are absolutely incorrect as the Article 123 of the Order, 1984 prescribes a period of 30 years. The relevant provision of Article 123 of the Order, 1984 is reproduced as under:- "Burden of proving death of person known to have been alive within thirty years. Subject to Article 124, when the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it".
The learned appellate court dealing with the relevant issue No.2 observed as follows:-- "14 Furthermore, it is admitted fact that respondent/defendant No,2 namely Midat Mahmud was alive within thirty years and in this situation, Article 123 of Qanun-e-Shahadat Order 1984 is very much clear which is as under:- Burden of Proving that person known to have been alive within thirty years.---Subject to Article 124 when the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
15. As already mentioned that respondent/defendant No,2 namely Midat Mahmood is alive within thirty years and appellants/plaintiffs asserted that he is not heard from last 15/16 years. So in this respect I am of the view that in this case Article 123 of Qanun-e-Shahadat Order 1984 is applicable instead of Article 124 of Qanun-e-Shahadat Order 1984, therefore, appellants/plaintiffs remain fail to produce evidence in accordance with Article 123 of Qanun-e-Shahadat Order 1984.
16. In view of my findings given above, the instant issue is decided against the appellant/plaintiffs and findings of learned trial court is confirmed".
9. In my opinion, the learned trial court as well as the learned appellate court erred in law while holding that the provisions of Article 123 of the Order 1984 are attracted. The bare reading of the Article 123 ibid, it is crystal clear that the said Article relates to the burden of proving death of person known to have been alive within thirty years. The petitioners in the present case did not assert in their plaint that defendant No,2 has died. They merely sought a declaration that there is a presumption that defendant No,2 has expired because he has not been heard of more than 15/16 years. The provision of Article 124 ibid is reproduced as under:- "124. Burden of proving that person is alive who has not been heard of for seven years.-- When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive the burden of proving that he is alive is shifted to the person who. affirms it", The present petitioners being the closest relatives of respondent No,2 are the persons, who would have been naturally heard of him if he had been alive. The petitioners in their evidence unequivocally deposed in this regard and their statements were not cross-examined by the respondents. Even it was not a case of the respondent-LDA that defendant No,2 was alive. Both the courts below have committed a grave illegality while dismissing the suit of the petitioners. Reliance is placed upon the case reported as Lal Hussain v. Sadiq and others (2001 SCM R 1036). The relevant portion of the said judgment is reproduced as under for ready reference:- "It is common ground between the parties that Roshan Din is unheard of since 1947. The provisions of Article 124 of the Qanun-e-Shahadat Order are thus, fully attracted and there is a presumption of law that he is dead. However, the date of his death is not discernible from the record, therefore, the point for determination is whether his inheritance had opened seven years after 1947 or before the attestation of Mutation No,2868 or institution of the petitioner 's suit. The point can be conveniently determined in the light of the provisions of Article 124 of the Qanun-e- Shahadat Order and its interpretation made in Muhammad Sarwar and another v. Fazal Ahmad and another PLD 1987 SC 1. Article 124 of Qanun-e-Shahadat Order clearly spells out that where a person has not been heard of for seven years by those who would naturally have heard of him if he had been alive the burden of proving that he is alive is on the person who affirms it".
(Emphasis provided)
10. The learned trial court further observed that in the earlier suit the same relief was sought but was not granted by the then trial court, therefore, the present suit is hit by principle of 'res judicata'.
As far as the question of "res judicata" is concerned, the petitioners did not seek any declaration qua the presumption of death of Midat Mahmud in their earlier suit as sought in the present suit and therefore findings of the learned courts below are also erroneous in nature and not sustainable in the eye of law.
11. Resultantly, this revision petition is allowed, the impugned judgments and decrees passed by both the courts below are set-aside and the suit of the petitioners is decreed as prayed for.