MUHAMMAD NAEEM ANW AR, J. Through instant petition under article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have challenged the viries of judgment & order dated 06.9.2017 of learned Additional District Judge-IX, Peshawar , whereby , Civil Revision Petition filed by respondents No.1 to 6 was allowed and consequently , the plaint of civil suit No. 57/1 of 2016 was rejected.
2. Facts, which are necessary for the disposal of instant petition are that, the petitioners/plaintif fs instituted a suit No.57/1 of 2016 whereby the declaration was sought that Awal Khan, Misri Khan and Fateh Khan were the sons of Atta Muhammad from his second wife namely Mst. Gulli whereas Azam Khan, predecessor in interest of respondents No.1 to 6 was the step brother of Awal Khan from first wife Mst. Shama of Atta Muhammad, as such, the entries in revenue papers on the strength of inheritance Mutation 1017 attested on 12.3.1937 in respect of the property which was described in head note--A, of the plaint, of the estate of Hazar Khwani, Tehsil & District Peshawar , whereby the shares from the property of Awal Khan were transferred in favour of Azam Khan, predecessor in interest of respondents No.1 to 6, are illegal, against the law and facts, sharia, is the result of collusion and connivance of revenue officials with predecessor in interest of respondents No.1 to 6, therefore, are ineffective upon the rights of petitioners/plaintif fs and liable to correction. Perpetual injunction to the effect that respondents be restrained from further alienation of the suit property and from making any kind of construction or changing its nature was also prayed for .
3. In response to the summons issued by the learned trial court respondents No.1 to 6 have contested the suit by filing their written statement, on various legal and factual objections, whereas, respondents No.7 to 12 have submitted their cognovits in favour of petitioners/plaintif fs. Respondents No.1 to 6 have submitted an application for rejection of plaint under Order VII rule 11 read with Order II rule 2 of CPC, which was properly contested by the petitioners. The learned trial court vide its order dated 28.11.2016 had dismissed the application. Respondents No.1 to 6 feeling themselves aggrieved from the judgment & decree of the learned trial court assailed the order by filing a revision petition before learned Additional District Judge, Peshawar , whereby , on acceptance of revision petition, the application filed by the respondents/defendants No.1 to 6 under order VII rule 11 CPC, 1908, the plaint was rejected. Hence, the instant petition.
4. Arguments heard and record perused.
5. Learned counsel for the petitioners contended that the dispute is in respect of the inheritance of Awal Khan, who died issueless and mutation could not be attested in favour of Azam Khan (predecessor in interest of respondents No.1 to 6) and only the plaintif fs and legal heirs of Fateh Khan were entitled for attestation of mutation in their favour . The learned revisional court while non suiting the petitioners/plaintif fs has committed an illegality . According to him this was a disputed question of facts and law which could only be decided after recording of pro and contra evidence. He went on to say that the factum of inheritance mutation could not be questioned on the ground of limitation, as the same was a mixed question of law and facts. He also added that the limitation could be considered within the parameters of recur ring cause of actions as any fresh entry in the revenue papers would give a fresh cause of action. In support of his arguments, he relied upon the case titled "Muhammad Ramzan..vs..Fazal Wahid (YLR 2003 1050 ), Bashir Ahmad Khan & others..Vs..Ghulam Sadar-ud-Din Khan & others (2012 CLC 600), Muhammad Mushtaq..Vs..Abida Nasreen (PLJ 2008 193), Begum Syeda Azra Masood..Vs..Begum Noshaba Moin & others (2007 SCMR 914), Barkhordar & others..Vs..Lal & others (1994 SCMR 2539), Syed Iftikhar Hussain Jaffari..Vs..Mrs. Shamshad Begum & two others (PLD 2011 KARACHI 232, Muhamamd Anwar & two others..V s..Khuda Yar and 25 others (2008 SCMR 905), Mst. Mumtaz Mai..Vs..Sajjad Hussian & four others (2017 CLC note 61), Lal Zamin alias Lalono Zargar & others..Vs..Asfandyar Khan & two others (PLD 2011 75), Khair Muhammad Katin & five others..Vs..Liaqat Ali G. Kazi & nine others (2017 CLC Note 117) and Khan Muhammad through LRs..Vs..Mst. Khatoon Bibi & others ( 2017 SCMR 1476 ).
6. As against that learned counsel representing respondents No.1 to 6 strenuously opposed the issuance of desired writ on the ground that the petitioners have got no locus standi to institute the suit. He termed the suit filed by the petitioners as incompetent, vexatious, time barred and added that the factum of inheritance in all the cases cannot be considered a mixed question of law and facts and that the limitation does not run in such cases, being filed under Section 42 of Specific Relief Act, 1877.
7. It appears from the record that the predecessor in interest of the parties remai ned contesting the cases jointly and separately against others regarding which the respondents have given the details of the cases, which remained pending adjudication and decided upto the apex Court. Record also reveals that predecessor in interest of the petitioners namely Misri Khan, Fateh Khan and Azam Khan have filed suit jointly before the Civil Court titled "Azam Khan..Vs..W ali Muhammad" wherein declaration and injunctions were sought in respect of the disputed property , the matter remained in contest between the parties, however , the suit filed by predecessor in interest of petitioners alongwith others went upto the apex Supreme Court of Pakistan and their claim was ultimately dismissed. Record further reveals that an application for partition of joint property was filed by the predecessor in interest of the petitioners alongwith other s before the court of competent jurisdiction, where the disputed property was also the subject matter of the partition and the same was dismissed.
8. Suit for partition for constructed property was also filed by Misri Khan and respondents No.1 to 3 before the Civil Court in the year, 2001 and the matter went upto the apex Court where Civil Petitio n No.666-P/2009 was dismissed on 07.6.2013. The afore-mentioned facts were properly mentioned in Para-7 of the judgment impugned. The impugned judgment further reveals that the copies of Civil Suits which remained pending adjudication and decided upto the apex Court of the country were produced before the learned trial court and in the court of revision but the petitioners have not appended those documents/attested copies of the earlier judgments of the civil court, appellate court, this court and that of the apex Court.
9. Contents of the instant petition transpires that the fact of earlier litigation was not specifically challenged or denied, which would tantamount that the petitioners have admitted the fact of earlier litigation where predecessor in interest of the petitioners alongwith contesting respondents remained party . The petitioners intentionally/deliberately have not append ed those documents on the basis of which the impugned judgment was passed by the learned lower court. However , as it was not categorically and specifically denied by the petitioners that the disputed property also remained the subject matter of the earlier suits from the court of first instance to the apex Court of the country .
10. Admittedly , the order passed by the learned trial court was impugned under Section 115 of the Code of Civil Procedure, 1908 read with Order 43 rule 1, as such, the revision petition was comp etently filed and was decided as such. In order to determine the legal aspect of the case of petitioners, the chequered history of the disputed property , which remained the subject matter of the litigation, when considered, it became crystal clear that predecessor in interest of the petitioner namely Misri Khan was well aware regarding the entries of the revenue papers, especially the mutation which was disputed by the petitioners / plaintif fs.
11. Undisputedly , Atta Muhammad had contracted two marriages with Mst. Shama (first wife) and Mst. Gulli (second wife). From the wedlock of first wife, predecessor in interest of respondents No.1 to 6 namely Azam Khan, whereas from the second wife namely Mst. Gulli two sons namely Awal Khan and Misri Khan were born. Awal Khan died issueless whose inheritance was devolved upon Misri Khan, predecessor in interest of petitioners, Fateh Khan and predecessor in interest of respondents No.1 to 6. The claim of the petitioners/ plaintif fs was that the inheritance Mutation of Awal Khan could not be attes ted to the extent of Azam Khan being uterine brother . When Misri Khan remained party with predecessor in interest of respondents No.1 to 6 in the earlier suit in early 1980's till his death would tantamount to his knowledge in respect of the entries of the revenue papers on the basis of inheritance mutation No.1017, attested in the year, 1937. Similarly , in the lifetime of Misri Khan, the property was alienated by Fateh Khan, predecessor in interest of respondents No.7 to 16 in the year, 1986-87 when Misri Khan was in litigation alongwith Azam Khan and Fateh Muhammad but he never objected the said alienation. In order to correct the entries of revenue papers a Fard-e-Badar was also attested but neither the same was mentioned in the plaint nor in the instant petition, despite of the fact that it was alleged by respondents No.1 to 6 in their written statement.
12. Being not denied the factum of earlie r litigation by the petitioners wherein Misri Khan was a party since early 80's, when the disputed property was also the subject matter of those suits, would lead to an irresistible conclusion that he was very much aware in respect of the entries of revenue papers but he never opted to challenge the same in his lifetime till 2010 and acquiesced, then in such circumstances, being based upon the principle by acquiescence, which, in accordance with Black's Law Dictionary was that; "Estoppel is that which concludes and "shuts a man's mouth from speaking the truth" when a fact has been agreed on or decided in a court of record, neither the parties shall be allowed to call it in question and have it tried over again and any time thereafter , so long as the judgment & a decree stands unreversed." It has also been defined as "a bare or impediment raised by law, which preclude a man from alleging a denying a certain facts or states of facts in consequence of this previous allegation or denial or conduct or admission or in consequence thereof any adjudication in respect of the same subject matter ."
It is also defined as "the doctrine of law or rule of evidence, which precludes a person from denying the truth of statement formally made by him".
In such eventuality when the revenue papers of the disputed property remained subject matter of the earlier suit in which Misri Khan actually participated and contested the matter not only in the court of first instance but upto the apex Court of the country , was in the knowledge of such entry and acquiesced by conduct by not challenging the entries of the revenue papers, the petitioners are estopped to sue in disputing the mutation, which was attested in the year, 1937, and was challenged after more than 79 years, in such circumstances, the longstanding entries could not be challenged by the petitioners.
In case titled " Abdul Haq..Vs..Mst. Surraya Begum" ( 2002 SCMR 1330 ) the apex Court has held; "Atta Muhammad was deprived of right to inherit the property as a consequence in dispute but he did not challenge the same during his lifetime . The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 about nine years after the sanction of mutation, which had already been given effect to in record of rights. The petitioner's, therefore, had no locus standi to challenge the mutation independently for Atta Muhammad through whom they claime d inheritance himself had not challenged the same during his lifetime."
Likewise, the apex Court in case titled "Muhammad Rustam & another ..Vs..M st. Makan Jan & others (2013 SCMR 299 ) has held; "having heard petitioners' learned counsel at some length, we find that admittedly , the impugned mutation of inheritance bearing No.571 dated 09.7.1927 was never challenged by Mst. Karam Jan; that she remained alive till 1975 and no reason whatsoever is reflected either in plaint or in evidence led to indicate as to why she did not challenge the said mutation. It has never been the case of petitioners that either they or their predecessor in interest were unaware of the said mutation. In the afore -referred circumstances, the judgment of the learned High Court is unexceptionable."
The apex Court in case titled "Mst. Grana through LRs & others..Vs..Sahib Kamala Bibi & others (PLD 2014 SC 167 ) has held; "it appears that in a suit which involves some elements of inheritance, the courts are generally quick to declare that law of limitation could not be attracted. It is not in all cases of inheritance that question of limitation become irrelevant. Even in Ghulam Ali's case, the court recognized that there could be exceptional circumstances wherein a suit based on inheritance issue of limitation may become relevant.
This court recently in some cases had invoked the principle of time limitation and acquiescence of the plaintif f material in suits of inheritance. In Mst. Phaphan Vs. Muhammad Bakhsh (2005 SCMR 1278 ) a suit for declaration and possession was filed in the year, 1983 by plaintif f/petitioner claiming to be the owner of inherited property . The suit was held to be barred by time wherein mutations of the year, 1959 and 1967 were challenged in the year, 1983 when the plea of defendant was that the plaintif f had alienated the property of her own free will. The plaintif f plea of being pardha nasheen lady and reliance of Ghulam Ali's case was not accepted as the plaintif f was found in deep slumber for 24 years despite the fact that physical possession of the land was passed to the defendants. Recently in the case of Lal Khan.. Vs.. Muhammad Yousaf (PLD 2011 SC 657) this court had set-aside the concurrent findings of three courts and dismissed the suit filed on 13.5.1970, where the plaintif f had challenged the inheritance mutation of 13.02.1947; the court held it to be barred by time. The judgment relied upon by the learned counsel for the petitioners regarding the contention that in the matters of inheritance, limitation does not run, on the basis of the principle as set by the apex Court in the afore-mentioned cases, it is manifested that in all cases of inheritance, it could not be held that limitation would not run. In the circumstances, when Misri Khan remained litigating in respect of the disputed property alongwith contesting respondents but never opted to challenge the inheritance mutation of the year, 1937, for the reason best known to him. Recently , the apex Court in case titled "Ghulam Abbas..vs..Muhamad Shafi & other (2016 SCMR 1403 ) has held that; "Be that as it may, there is another principle of law laid down by this court which is applicable to the facts of the present case. And here, who is directly affected by wrongfully recorded mutation of inheritance, fells to challenge such mutation for a considerable length of time until his death, thereby deprive his heirs of locus standi to dispute such mutatio n on the ground of his estoppel, abandonment of claim/cause of action."
13. Misri Khan when actively participated in the earlier round of litigation till his death when the matter was pending adjudication in the apex Court and the institution of the suit by the successors of Misri Khan against respondents No.1 to 6 and others within the meaning of Order VII rule 11 of CPC, 1908 shall be considered to be a vexatious and frivolous litigation by the present petitioners, whereby the longstanding revenue entries were challenged by the successors of Misri Khan who himself has never opted to do so. In such circumstances, limitation would not be considered to be a mixed question of law and facts rather it shall be considered that Misri Khan being aware in respect of his relations with others including the predecessor in interest of respondents No.1 to 6 namely Azam Khan was in full knowledge of the true fact, therefore, the suit instituted by the present petitioners shall be termed as fruitless litigation and, as such, is incompetent, illegal, vexatious and frivolous suits must be buried from its inception, as the birth of such case would not only prolong the agonies of the parties but shall also be wastage of precious time of the court as well. Fruitles s and useless litigation may not be encou raged, though for the purpose of determining the scope of Order VII rule 11, the contents of the plaint are to be seen but there is no such specific clog from considering the other elements, written statements, documents and the decision of earlier litigations which could also be seen for determining the fate of fruitless and useless litigations. The provisions of Order VII rule 11 CPC would reveal that plaint could be rejected when it does not disclose a cause of action and when the suit appears from the statement and plaint to be barred by law .
14. This court has gone through from the judgments of learned Additional District Judge, Peshawar and is of the view that the findings so recorded by the learned Appellate Court is in consonance with law and needs no interference by this Court in exercise of writ jurisdiction, as the learned counsel for the petitioner could not point out any jurisdictional error, illegality or infringement of his right, resultantly , the instant petition being without any merit is hereby dismissed.