' This revision petition is directed against the judgment and decree of the learned District Judge, Abbottabad dated 23-5-1977 whereby he dismissed the appeal of the plaintiff/petitioners against the judgment and decree of the learned Civil Judge, dismissing their suit.
2, The relevant facts of the case are that property bearing Khasra No, 81 measuring 37 kanals 11 marlas situated in village Nartopa, Tehsil Haripur was in the occupancy/tenancy of the parties as under :
(1) Hayat, Hassan Din and Roshan Din sons of Bahadur, one share.
(2) Alif Din, son of Abdullah, one share.
(3) Noor Din, son of Gul Zaman, one share. According to the Jamanbandl for the year 1941-42, copy Exh. P. W. 2/3. Similarly, they were the occupancy owners to the extent of 35 kanals 15 marlas out of Khasra Nos. 2538, 237, 2541, 2542 & 2548 in the same ratio in village Mankarai. In the present case, we are concerned with the land bearing Khasra No, 81 situated in village Nartopa which is shown by Khasra No, 112 after the settlement and thereafter, as a result of the consolidation proceedings, is now shown by Khasra No, 131 measuring 37 kanals 11 marlas. Both the parties being closely related arrived at a mutual settlement whereby the heirs of Bahadur and Abdullah agreed to change their 2/3 share in the land situated in village Nartopa to Noor Din in lieu of Noor Din's share in the land owned by him in village Mankarai. To act upon this settlement, in letter and spirit, Mutation No, 1983 was entered and attested on 14-7-1942 whereby 2/3 share in the suit property was transferred in favour of Noor Din whereby he became the sole owner of Khasra No, 81 (now Khasra No, 131). In column No, 13 of this mutation, copy Exh. P. W. 2/2, reference has been made to the exchange of occupancy right, of which the parties were the owner in both the villages, in lieu of his share in the land in village Mankarai. The presence of Noor Din the predecessor of the plaintiff is also marked during the mutation proceedings by the Tehsildar. This mutation found place in the subsequent Jamabandies.
3. The dispute between the parties arose when Hassan Din and Roshan sons of Bahadur instituted a suit bearing No, 334/1 of 1968 against the heirs of Noor Din, impleading the heirs of Alif Din also defendants Nos. 11 to 14, seeking declaration to the effect that they alongwith the heirs of Alif Din (defendants Nos. 8 to 14) are the exclusive owners in possession of the land situated in Mauza Mankarai as detailed therein, on the basis of an exchange mutation referred to above. It was alleged by the plaintiffs that for some reasons though their land has been mutated in the name of Noor Din, the predecessor of defendants Nos. 1 to 7 in that suit, the share owned by Noor Din in the suit Khasra number has not been mutated in their names so far. Relief for the correction of the record was also sought for. After recording of the evidence in that case, ultimately the parties arrived at a compromise as it appears from the statements recorded therein of some of the parties and the learned counsel for the parties. It was agreed in substance that the exchange transaction is to be annulled and that parties be restored to their original position. The factum of exchange was denied. In consequence of the statements of the parties as referred to above, the learned Civil Judge passed the following order :- "In view of the above statements, I hereby dismiss the suit as having been withdrawn by the plaintiffs. Costs of the suit to be borne by the parties themselves and Mutation No, 1983, attested, on 14s7-1942 of village Nartopa be got cancelled by the revenue auhorities directly. Present : Plaintiff No. 1, defendant No. 1 and counsel for the parties."
4. The next round of litigation. Started when Mutation No, 151 was attested on 16-3-1971 on the basis of the statements of the parties and the order of the Court, cancelling the earlier exchange Mutation No, 1983 attested on 14s7s1942. By this mutation parties were restored to their original position and were entered as owners of their respective share. Aggrieved by this mutation, the present suit for declaration was filed by the heirs of Noor Din alleging therein that they are the owners in possession of the land mea-suring 37 kanals 11 marlas situated in Mauza Nartopa and that mutation No, 151 attested on 16-3-1971 is without jurisdiction, illegal and not binding on them.
Alternative relief of ownership on the basis of adverse possession was also raised. The attestation of the mutation was challenged on the grounds that the withdrawal of suit by the plaintiffs bearing No, 334/1 cannot be made the basis for the attestation of the mutation. Furthermore, that the plaintiffs have never given any statements in the earlier suit for the cancellation of exchange transaction. It was further alleged in the plaint that there being no decree of the court in favour of the defendants, no mutation could have been attested on its basis by the Revenue Officer.
5. In the .Written statement filed by the defendants, several 11gal and factual pleas were raised resulting in the framing of the. Following issues :-
(1) Whether the plaintiffs have got a cause of action ?
(2) Whether the plaintiffs are estopped to bring the present suit?
(3) Whether the suit is hit by the principle of res judicata ?
(4) Whether the suit is bad for non-joinder of necessary parites ?
(5) Whether the plaintiffs are the owners in possession of the suit property ?
(6) Whether the mutation No, 151 attested on 16-3-1971 was rightly attes-ted in favour of the defendants?
(7) Whether the decree passed in Case No, 334/1 of 1968 is ineffective on the rights of the plaintiffs ?
(8) Whether the plaintiffs have become the owners of the suit property by adverse possession for 12 years or more ?
(9) Whether the plaintiffs in the alternative are entitled to the possession of the suit property by cancellation of Mutation No, 151 in suit ?
(10) Whether the plaintiffs are entitled to the permanent injunction prayed for ?
(11) Relief.
6. Shahzada Khan, Patwari appeared as P. W. 1, whc placed on the record .a copy of the Jamabandi for the year, 1967s68 Exh. P. W. 1/1 and certified copy of the Mutation No, 151 Exh. P. W. 1/2 attested on the basis of the civil Court decree in Suit No, 334/1. Copies of Khasra Girdawari prepared by him were placed on the record as Exh. P. W. 1/3. He further deposed that the previous Khasra No, 81 is formed of Khasra No, 111 min, 112,
113. Copies of the Jamabandi for the year 1947-48 in respect of these khasra numbers Exh. P. W. 1/4, Exh. P. W. 1/5 is the copy of the Jamabandi for the year 1953-54, on the basis of which consolidation proceedings were carried out. The pedigree-table of the parties for the year 1947-48 is Exh. P. W. 1/13-1 showing Aziz to be the common ancestor of the parties. Mir Zaman, plaintiff appeared as his own witness who narrated the facts as detailed above.
He produced copy of the order of the court in the earlier Suit No, 3341 as Exh. P. W. 2/1. This P. W.
Denied the factum of compromise or the engagement of counsel in the earlier suit. Jehan Dad, defendant No, 8 appeared as witness for the plaintiff was examined as P. W.
3. He admitted having engaged Syed Mehmood Hussain Shah as his counsel, but denied that the other defendants had also engaged him in Suit No, 334/1. He admitted haVing given statement in court on 29-11-1969 and his thumb-impression over the same when con-fronted with the situation.
He denied having agreed to the cancellation of the exchange mutation. From the defendants' side, Hassan Din appeared as D. W. 1 who relied on the statements given by the parties in the earlier suit and produced its copies as Exh. D. W. 1/1. He further stated that exchange mutation was cancelled on the strength of the statement of the parties given in the earlier suit.
7. On the evidence of the parties, the learned trial court held that the plaintiffs are not the owners of the suit land and as such have no cause of action to bring the suit. It was also held that the plaintiffs are estopped to bring the present suit. The suit was also held to be barred under section 11 of the Civil Procedure Code. The objection with regard to non-joinder of neces-sary party was rejected and the suit was held to be in proper form. The decree in Suit No, 334/1 and the attestation of Mutation No, 151 on its basis was held to be proper and legal. The plea of adverse possession was not accepted in view of the stand taken in the earlier suit. In this view of the matter, the suit was dismissed by the order dated 21-7-1973.
8. On appeal by the plaintiffs, the learned District Judge concurred with the findings of the learned trial court and dismissed the same.
9. Mr. Fida Muhammad Khan, Advocate, the learned counsel for the petitioner and Khawaja Abdur Rashid, Advocate, the learned counsel for the respondents present and beard,
10. 'The learned counsel for the petitioner raised the following contentions in support of the present revision petition :-
(a) Firstly, that the order passed in Suit No, 334/1, dismissing the plaintiff's suit as withdrawn under Order XXIII, rule 1, C. P. C., by no means can be termed as a decree in favour of the plaintiffs and as such, the same cannot be given effect in the revenue record through the impugned mutation.
(b) Secondly, that the findings of the Courts below that the suit is barred under the principle of res judicata, is illegal as no final adjudication between the parties with regard to the suit property has taken place.
(c) Thirdly, that the property in that suit was not the one in the present suit, therefore, any decision given thereunder, cannot effect the right or title of the parties in suit property.
(d) Fourthly, that at the time the exchange took place, the property in question was occupancy right which has now merged into ownership on the abolition of the occupancy rights, petitioner having paid the required lagan for the same as required by law.
(e) Fifthly, that an additional area as well Abadi of the petitioner was conolidated alongwith the disputed (old Khasra No, 81) property in the consolidation proceedings to which the plaintiffs were entitled as of right and
(f) Lastly, that any compromise arrived at by the parties with regard to the land, not the subject- matter of the suit, was to be enforced through specific performance and the compromise required to have been registered under the Registration Act.
11. In order to meet these contentions, I have to deal with them in the light of the facts and the evidence, referred to in the earlier part of this judgment.
12. In order to appreciate the view-point of the learned counsel for the petitioner, the substance of the order of withdrawal and the circumstances in which the same was passed is of paramount importance, specially when the learned Judge in his order has clearly referred to it. This order can in no way be read in isolation of those facts which formed the basis for the withdrawal of the suit.
The order of withdrawal was based on the statements of the parties and the Courts are, in such circumstances, bound to look into those statements of the parties in interpreting the order of withdrawal or dismissal of the suit in the light thereof. The sum and substance of the statements of the parties further find mention in the order when it was directed by the learned Judge that the revenue authorities are directed to cancel Mutation No, 1983 attested on 14-7-I942. This order was passed on the consent of the parties and in this view of the matter, the parties are' bound by the same. This may not strictly be covered by the provisions of section 11 of the- Civil Procedure Code, as the withdrawal of the suit in general terms will amount non-existence of the suit at an earlier stage as has been pointed by the learned counsel basing reliance on Baisnab Das Mohanta v. Nani Gopal Das and others (1). The plaintiffs them-selves having stated in the earlier suit that the exchange transaction in fact and substance has never taken place and that the mutation if any, attested on their back is to be cancelled, cannot now turn back and make the mutation of exchange as the basis of their title. The plea of the petitioner that he has made wrong admission in these proceedings or that he was not aware {{FOOTNOTE}}
(1) PLD 1963 Dacca 504 that those admissions would affect the land, not the subject-matter of that suit, is of no consequence at all. Both the Courts below have rightly held that parties and their counsel very well understood what they were going to depose. It is true that admission of facts are only relevant and are not conclusve and, therefore, may be shown to be wrong. The question came for consideration before their Lordships of the Supreme Court in Ahmad Khan v. Rasul Shah and others where their Lordships observed :- "Therefore, an admission which is wrong in point of fact or is made in ignorance of legal right, has no binding effect on the person making it. This is however, subject to two well-recognized exceptions ; First, such admissions become conclusive and are binding on a party, making them only if it amounts to a representation on a matter of fact made to the other party, who in consequence of such representation has altered its position. When admission is thus acted upon by the party to whom it is made, it operates as estoppel and becomes in a way conclusive, inasmuch as the party making it is not then permitted to show that the admission was wrong."
In the circumstances of this case, the earlier suit having been withdrawn on the admission and representation of the plaintiff is fully covered by the exceptions referred to by their Lordships and amounts to an estoppel and is binding on them.
13. The next contention of the learned counsel with regard to the non-registration of the alleged compromise, if it can be termed as such, is also of no substance. The title of the land in question already vested in the defendants, but for the exchange mutation. The plaintiffs having denied the factum of exchange and the ,attestation of the said mutation re-affirmed the defendants' title in the suit property. Any statement to that effect made by the plaintiff does not require registration as1 it does not create any new right or title in favour of the defendants. Similarly, resort to Court for specific performance is not required in this case.
15. The grievance of the petitioner that some other land exclusively owned by them was consolidated with the suit Khasra numbers and that the Courts below did not apply their mind to this aspect of the case has got some force. However, in the circumstances of the case when the Courts below have not accepted the factum of exchange alleged by the plaintiffs, both the parties are restored to their original position which existed prior to the attestation of exchange mutation, as earlier stated, by no way will affect their own share and entitlement in the suit property.
16. The other grounds raised by the learned counsel for the petitioner were never raised before the lower Courts nor the same have been raised I C the grounds of revision. In this view of the matter, the same cannot be agitated now for the first time.
17. With the above observations, this revision petition fails which is hereby dismissed. However, the parties are directed to bear their own costs. P L 1975 SC 311