1. SAIJAD AHMAD, J.-The facts of this appeal by, special leave are briefly as follows.
2. One, Rahim Gul, father of the appellant Fait Muhammad who was the original owner of the disputed &Ad, land is the year 1932. He left the appellant, his son and Mst. Maqbool Jan, his daughter, as his heirs. As customary law governed succession at the time, the land in dispute was mutated in the name of the appellant alone, to the exclusion of Mst. Maqbool Jan. The latter, on the 6th of April 1955, brought a suit (No. 119/1) in the Court of the Sub-Judge, 1st Class, Nowshera, for possession, claiming that she was a co-owner with the appellant in the suit property to the extent of 1/3rd share, according to Shariat Law which had been enforced in the former N.W. F. P. In the year 1935. During the proceedings, the respondent Fazal Rahman moved an application for impleadment as a party on the conten--tion that he was a legatee of 1/3rd share in the suit property under a will made by the aforesaid Rahim Gul. He was duly impleaded as a party and an issue was struck as regards his rights under the will numbered as Issue No. 9, to the following effect :- "Whether Rahim Gul validly willed his property to Fazal Rahman (defendant No. 18). If so, with what effect?"
3. The appellant supported the claim of Fazal Rahman in the course of his statement as his own witness by admitting that his father, Rahim Gul, had, in his lifetime, willed 1/3rd of the suit property in favour of Fazal Rahman, a son of his sister who had pre--deceased him, and that he was enjoying the usufruct thereof. On the basis of this admission by the appellant, Issue No. 9 was decided by the trial Judge upholding the claim of Fazal Rahman although it was contested by Mst.
4. Maqbool Jan, the plaintiff as also by the defendants in the case, other than the appellant. The trial Court found that Mst. Maqbool Jan was the heir of Rahim Gul but dismissed her suit on the ground that Faqir Muhammad, the appellant, had been in adverse possession of the suit property throughout, amounting to the ouster of Maqbool Jan and her suit was, therefore, barred by time.
5. Mst. Maqbool Jan preferred an appeal to the Court of the Additional District Judge, Peshawar, who affirmed the trial Court's finding on Issue No. 9 mentioned above. He accepted the appeal of Mst.
6. Maqbool Jan and gave her a decree for 7/40 shares of the property, conceding to Fazal Rahman his 1/3rd share in the property under the will. The appellant filed a revision in the High Court at Peshawar against this judgment (No. 346 of 1962) which has since been decided, although it was pending at the time when special leave was granted by this Court in the present case on the 25th of March 1965. The High Court has affirmed the view of the Courts below on Issue No. 9 pertaining to Fazal Rahman's claim for 1/3rd share in the suit property under the will. After the trial Court's finding in favour of Fazal Rahman that he was the owner of 1/3rd of the disputed land under a will, a mutation was attested in his favour giving effect to that finding.
7. On the 16th of November 1960, the appellant instituted a suit out of which the present appeal has arisen, for a declaration that he was the sole owner in possession of the entire land left by his father Rahim Gul and that the mutation in favour of Fazal Rahman was void and ineffective against his rights. The respondent Fazal Rahman in his defence, inter alia, pleaded the bar of res judicata and estoppel. The following issues were framed in the suit
(a) Whether Rahim Gul had transferred 1/3rd share out of the khasra number in suit in favour of Fazal Rahman. If so, with what effect?
(b) Is the suit barred by res judicata?
(c) Whether the plaintiff is estopped from bringing the present suit?
(d) Relief.
8. The trial Judge decided all the issues in favour of the respondent and dismissed the suit. The appellant preferred an appeal to the District Judge which was also dismissed. Thereafter, a second appeal (R. S. A. No. 558 of 1964) was preferred by him in the High Court, Peshawar Seat, which has been dismissed in limine by a Division Bench.
9. The appellant approached this Court for special leave to appeal which was granted to him to consider the contentions, firstly, that the decision in the previous case filed by Mst. Maqbool Jan, already mentioned above, was not res judicata as the same was the subject-matter of a revision petition pending in the High Court at that time and secondly, that the statement made by the appellant as a witness in the previous suit admitting Fazal Rahman's claim, could not operate as an estoppel against him because Fazal Rahman was not induced thereby to change his position to his detriment.
10. As already observed above, the Revision Petition (No. 346 of 1962) filed by the appellant has now been decided. The High Court has accepted the revision by reversing the judgment, of the lower appellate Court and restoring that of the 1st Court on the view that the appellant had matured his prescriptive title against Mst. Maqbool Jan and therefore she had lost her right in the land as the heir of Rahim Gul. As for Issue No. 9, i.e. The one which related to the claim of Fazal Rahman, it was observed that the Courts below had reached a correct conclusion in holding in favour of Fazal Rahman that he was a legatee of 1 /3rd share in the suit property on the basis of the admission made by the appellant himself. It would appear, therefore, that the only contention on which the appellant had pleaded at the leave stage against the application of the rule of res judicata, has disappeared. In the suit of Mst. Maqbool Jan, the question of Fazal Rahman's 1/3rd share under the will was very much at issue and was a matter of conflict between the parties which it was necessary to decide in order to give relief to Mst. Maqbool Jan who claimed 1/3rd share in the property, denying Fazal Rahman's claim thereto, who was a necessary party and had been impleaded as such. This issue has been heard and finally decided in favour of Fazal Rahman and all the ingredients of the bar of res judicata are complete. The judgments of the Courts below have thus proceeded correctly on the question of res judicata.
11. We also agree with the Courts below that the appellant's admission in the previous case in favour of Fazal Rahman, precludes him now from disclaiming the title of Fazal Rahman. It is not permissible under the law for a litigant to approbate and reprobate, blowing hot and cold in the same breath. After having admitted that Fazal Rahman was a legatee of 1/3rd of the property under the will made by Rahim Gul, the appellant cannot be permitted to resile from that admission.
12. The appellant had also admitted that Fazal Rahman was in joint possession of the property along with him and was receiving his share of the produce of the land. In view of that statement it is futile for him to urge that he was holding the whole of the property in dispute adversely against everyone, including Fazal Rahman. As he did not disown the title of Fazal Rahman, there could not be any question of his being in adverse possession as against him. As there is no substance in this appeal, it is dismissed with costs which, however, would not include the fee of the counsel for the respondent who is absent from the Court today.