' This is an application under Order XII, rule 6 praying that the suit be disposed of in terms of admission made by the plaintiff in its letter dated 21-3-1981. It is also prayed that the plaintiff may be directed to hand over the defendants 33,970 shares of Bahawalpur Textile Mills Ltd. and 25,000 other shares lying with the plaintiff as a security. The facts of the case have been set out in detail in my order dated 6-5-1984 and I need not repeat the same here. Suffice to say that during the pendency of the suit the plaintiff did write a letter dated 21-3-1981 which has also been reproduced in Order dated 6-5-1983. It seems that the suit was filed, the parties negotiated a settlement. The defendants seems to have accepted the condition and paid the amount to the plaintiff as is evident from the defendants, two letters filed by the defendants as well as the plaintiff with its application under Order VI, rule 17, C.P.C. The plaintiff did not file its letter dated 21-3-1981 and defendants letter dated 25-3-1981 with its application but the same were filed by the defendants.
All these letters read together, logically connect the sequence for events. The defendants paid Rs.6,82,186.91 against a claim of Rs.5,61,078.08 in the suit. The defendants also paid Rs.20,613 under protest towards expenses of this suit. The plaintiff by its letter dated 21-3-1981 accepted these amounts and replied as follows:- "We have accepted the amounts and, therefore, absolve you of your full liability under the above- mentioned buy-back agreement of Sind at Karachi.
' We shall be requiring a letter of indemnity duly signed by all the legal heirs of guarantor No.1 Late Wall Muhammad, Akbarji against any claim by any person till such time the heirship certificate or succession certificate is furnished to us. The shares will be delivered to Messrs Hidayatullah Muhammad Fareed & Co. on receipt of the said indemnity bond/heirship or succession certificate."
' The defendants by their letter, dated 25-3-1981 complied with the conditions laid down by the plaintiff as stated above. However, the plaintiff did not withdraw the suit as agreed. In the face of these facts the plaintiff is proceeding with the suit perhaps on the ground that there had been some mistake in calculating the balance due from the defendants. For this purpose the plaintiff filed an application under Order VI, rule 17, C.P.C. for amendment of the plaint, but it was rejected on 6-5-1984. Now the question irises whether in view of this letter of the plaintiff can it still proceed with the suit. There is clear admission to withdraw the suit.
' Mr.Tahir Hussain the learned counsel for the plaintiff has contended that the letter dated 21-3-1981 is marked "without prejudice" and, therefore, it should not be taken into consideration. I am unable to accept this contention. Any letter marked without prejudice during offers or propositions between litigating parties is excluded from consideration and cannot be treated as evidence.
Monir in his book Principles and Digest of Law of Evidence, observed that "an admission is not inadmissible in evidence merely because it forms part of an offer to compromise. The important point which makes the admission admissible is the form of the statement, namely whether it is hypothetical or absolute".
'Although the plaintiff has marked its letter dated 21-3-1981 as "without prejudice" it has in clear and absolute terms having accepted the amount paid to it declared that it will withdraw the suit. It is not a case where parties were negotiating a settlement. Here the parties had agreed to the terms and conditions, and in compliance thereof the defendants remitted the bank draft which was accepted by the plaintiff. In these circumstances, the statement to withdraw the suit was a firm declaration. The plaintiff's conduct in accepting the payment and making this declaration creates a legal right in the defendants and, therefore, in these circumstances by stating that the letter is "without prejudice" can not rob off the defendants of their legal right. In Crescent Pak, Soap & Oil Mills v. Pakistan PLD 1964 Kar. 459 the plaintiff agreed to supply goods to defendant within a date specified by the contract. As the plaintiff failed, the date of delivery was extended during which the goods were supplied and accepted by the defendant. As the defendant failed to pay the price, the plaintiff filed suit for recovery. The defendant pleaded that as the plaintiff failed to supply goods within the time specified in the contract, it has suffered damage and claimed set off. As to extension of time it was pleaded that in these letters it was specifically mentioned that "the extension of time granted to the Contractor was without prejudice to other rights of the parties under the Contract", therefore, they were not admissible. The Court rejected the plea and observed "these words will not override the provisions contained in the rules and Contract Act". The plaintiff having accepted the agreed amount, cannot wriggle out of his commitment. It is significant that till today the plaintiff has not even offered to return the amount paid to it. In the circumstances the suit is dismissed as withdrawn with costs to the defendants.
Suit dismissed.
1985 CLC 2872 [Lahore] Be fore C. A. Rahman, J Sh. IJAZ AHMAD and others--Petitioners versus 1NAYAT HUSSAIN and others--kespondents Civil Revision No.997 and Civil Miscellaneous No. 5291/C of 1982, decided on 24th March, 1982.
(a) Civil Procedure Code (V of 1908)-- ---0. XXIII, r. 1 & 0. XXXIX, rr.1 & 2--Interim relief--Withdrawal of suit--Permission to file fresh suit on condition of payment of costs--Non fulfilment of such condition--Consequences--Permission to withdraw and file fresh suit was granted to plaintiff subject to payment of costs to defendant--Plaintiff failed to fulfil condition precedent before and after institution of fresh suit--Plaintiff, held, failed to make out prima facie case in view of said lacuna and was not entitled to interim relief prayed for. [p. 2875] A Ghulam Akbar Khan v. Ghulam Sarwar Khan and another PLD 1953 Lah. 597; Muhammad Yousuf v.
Sikandar PLD 1970 Pesh. 160 and Abdul Rashid v. S.M. Lalita Roy PLD 1959 SC 287 rel.
(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)-- ---Ss.10 & 11--Joint character of land--Question of--Duty of Court--Disputed Khasra number in possession of petitioner shown as separate and distinct field in 'Aks Shajra' copy of which was ignored by Court to take into consideration--Main Khasra No. was allotted to three persons not in equal shares but on basis of different areas--Held, it would be sufficient to show that main Khasra had been divided into three unequal parts by Rehabilitation Department, while making allotment-- Finding of Appellate Court that main Khasra number was not partitioned and division of the same Khasra was not given effect to in revenue record, held, was not proper because allocation of separate number to land allotted to each allottee had for all intents and purposes broken joint character of land--Expression of firm opinion by appellate Court in deciding question of joint ownership of land which dealing with application for temporary injunction disapproved. [p. 2876] B Ghulam Akbar Khan v. Ghulam Sarwar Khan and another PLD 1953 Lah. 597; Muhammad Yousuf v.
Sikandar PLD 1970 Pesh. 160; Abdul Rashid v. S.M. Lalita Roy PLD 1959 SC 287 and Kishori Lal and others v. Khair Din and others AIR 1937 Lah. 288 ref.
Sh. Ziaullah for Petitioners.
Aitzaz Ahsan and Abdul Majid Khan for Respondents Nos.
1 and 2 Nemo for Respondent No. 3.
Date of hearing: 24th March, 1985.
' This revision petition has arisen out of a suit instituted by Inayat Hussain and Siraj-ud-Din respondents Nos. 1 and 2 against the petitioners and the Collector, Gujrat, respondent No.3 for a declaration that they alongwith Sh. ljaz Ahmad petitioner No.1 are joint owners of land comprising Khasra Nos. 4237/1, 4237/2/1 and 4237/2/2 measuring 12 Kanals 13 Marlas situated in the revenue estate of Dinga, Tehsil Kharian, District Gujrat, and that Muhammad Hussain and Nazir Ahmad petitioners, who have illegally occupied a portion of the joint land have no right or interest in the said land with a consequential relief restraining Sh. ljaz Ahmad petitioner No.1 from utilizing the entire front portion of the aforementioned joint land by raising construction over it. The suit has been contested by the petitioners, who have denied the respondents' contention that the suit land is jointly owned by them and petitioner No.l. According to the petitioners land comprising Khasra No.4237/1 is exclusively owned by Sh. Ijaz Ahmad petitioner No.1, which fact was established in the earlier suit filed by the respondents against petitioner No. 1, which, however, was withdrawn by the respondents with permission to file a fresh suit. It has also been contended by the petitioners that the second suit instituted by the respondents is not maintainable as the condition attached to the permission granted to them to institute the suit i.e. the respondents would pay Rs.200 as costs before filing the suit, has not been fulfilled.
2. Alongwith the plaint the respondents filed an application under Order XXXIX, rules 1 and 2, C.P.C. praying for an injunction order restraining the petitioners from raising any construction over the land comprising Khasra No. 4237/1 during the pendency of the suit. This application too was contested by the petitioners. The learned trial Court after hearing the parties counsel dismissed the aforementioned application on 27-2-1982. The respondent filed an appeal against the above order of the learned trial Court, which was allowed on 2-6-1982. Feeling aggrieved by order of the appellate Court the petitioners have filed the present revision petition in this Court.
3. Learned counsel for the petitioners has submitted that land comprising Khasra No. 4237/1 was purchased by Sh. Ijaz Ahmad from Fateh Muhammad by means of registered sale-deed, dated 25- 8-1972. The aforementioned land was acquired by Fateh Muhammad from the Rehabilitation Department under an allotment order and Sh. Ijaz Ahmad petitioner stepped into his shoes after purchasing the land from him. He also acquired the possession of the land which fact in duly reflected by the entries in the Register Haqdaran Zamin of 1976-77. Sh.Ijaz Ahmad petitioner after acquiring the possession of the land had also constructed shops and a boundary wall over it. In 1981 respondents Nos.1 and 2 instituted a suit against Sh. Ijaz Ahmad petitioner No.1 seeking declaration that they were owners of land comprising Khasras Nos. 4237/2/1 and 4237/2/2 and that petitioner No.1 should be restrained from interfering with .their possession over the said land. The respondents also moved the trial Court for issuing temporary injunction against petitioner No.1 restraining him from interfering with their possession over the land during the pendency of the suit Sh. Ijaz Ahmad petitioner opposed the respondents' application and pleaded that he was owner in possession of land comprising Khasra No. 4237/1 and that he was not interfering with the respondents' possession over land comprising Khasras Nos. 4237/2 and 4237/2/2. The respondents' application for temporary injunction was rejected by the learned trial Court on 17-3-1981 and their appeal against the above order also failed when it was dismissed by the Additional District Judge on 7-7-1981. The respondents, thereafter, submitted an application in the trial Court on 27-10-1981 for withdrawal of the suit with permission to institute a fresh suit on the ground that their suit was likely to fail in view of the charge brought about in the character of the suit land. Their application was allowed by the trial Court and they were permitted to institute a fresh suit on payment of Rs.200 as costs. According to the learned counsel for the petitioners the respondents, present suit was not maintainable as they have failed to pay the costs to the petitioners before or after the institution of the suit. In support of his above contention he has relied on Ghulam Akbar Khan v.
Ghulam Sarwar Khan and another PLD 1953 Lah.
597. According to the learned counsel for the petitioners the respondents have failed to make out prima facie case in view of the above lacuna and as such are no entitled to interim relief in the form of injunction order prayed for b them.
4. Learned counsel for the petitioners has further contended that the land comprising Khasra No. 4237/1 is not jointly owned by Sh. Ijaz Ahmad petitioner and Inayat Hussain and Siraj Din respondents because it has been shown as a separate and distinct field in the Aks Shajra copy whereof has been placed by the petitioners on the file. Learned counsel has assailed the finding of the learned Additional District Judge to the effect that the main Khasra No. 4237 has not been partitioned. According to him, the fact that Khasra No. 4237 was allotted to three persons not in equal shares but on the basis of different areas, would be sufficient to show that the main Khasra had been divided into three unequal parts by the Rehabilitation Department while making allotment. The report of the Patwari that Khasra No. 4237/1 was not shown separately in the Aks Shajra, relied upon by the learned Additional District Judge, or that the division of the main Khasra number into three parts was not given effect to in the revenue record, were of no consequence because the allocation of separate number to the piece of land allotted to each allottee, had for all intents and purposes broken the joint character of the land.
5. Learned counsel for the respondents, on the other hand, have supported the impugned order of the learned Additional District Judge and have contended that the land comprising Khasra No. 4237/1 in the possession of Sh. Ijaz Ahmad petitioner is jointly owned by him and Inayat Hussain and Siraj Din respondents; Sh. Ijaz Ahmad is not entitled to raise any construction on the joint land; the entries in the revenue record clearly show that land comprising Khasra Nos. 4237/1, 4237/2/1 and 4237/2/2 is joint land as it is included in one Khewat i.e.
731. Learned counsel for the respondents have relied on Muhammad Yousuf v. Sikandar PLD 1970 Pesh. 160 in support of their contention that the inclusion of more than one Khasra number in a Khata does not prove that there are as many properties in the Khata as there are Khasra numbers.
As regards the copy of the Aks Shajra filed by the petitioners in the trial Court it has been contended that it is a forged document in view of the Patwari's report that Khasra No. 4237 has been shown as one field in the Aks Shajra and its division into three parcels of land bearing Khasra Nos. 4237/2/1, 4237/2/2 and 4237/1 has not been shown there. Learned counsel for the respondents have conceded that they had withdrawn their earlier suit with the permission of the Court and that they were allowed to file a fresh suit on payment of Rs.200 as costs. Non-payment of the said costs, however, does not affect the merit of the case, as the suit cannot be dismissed on that score as was held by the Supreme Court in Abdul Rashid v. S.M. Lalita Roy PLD 1959 SC 287. According to the learned counsel for the respondents a prima facie case was made out. The learned appellate Court had properly exercised its discretion in granting interim relief to the respondent in the form of temporary injunction restraining the petitioners from raising construction over the joint property as a prima facie case had been made out by the respondents. A co-sharer in possession of joint property is not entitled to use it in a manner as to change its character. Reliance has been placed by the learned counsel on a decision in Kishori Lal and others v. Khair Din and others AIR 1937 Lah.
288.
6. I have carefully considered the submissions made by the parties' counsel and have perused the available record. Non-payment of costs/ by the respondents before the institution of the suit, which was a condition precedent for filing fresh suit is a matter which cannot be lost sight of while considering the respondents' prayer for an interim relief in the suit. The effect of non-fulfilment of the condition imposed by the Court while allowing permission to the plaintiff to withdraw a suit before filing a fresh suit has been considered in Abdul Rashid case cited by the learned counsel for the respondents. It has been observed that unless the condition imposed by the Court is complied with by the plaintiff there is no proper suit before the Court and the defendant in such a case is entitled to demand that the plaintiff should comply with the terms on which permission to withdraw the earlier suit was given if he wishes to proceed with the new suit. Admittedly the respondents have not paid the costs to the petitioners as earlier ordered by the Court before filing the suit nor have they deposited it in the Court after objection was raised by the petitioners. In fact the respondents have not even made any reference to the earlier order by which they withdrew from the suit and were allowed to institute fresh suit on payment of costs in the plaint filed in the present suit. In view of the above legal lacuna it cannot be said that the respondents had made out a prima facie case entitling them to interim relief prayed for by them.
7. The question of joint ownership of the land comprising Khasra No.4237/1 in possession of Sh. Ijaz Ahmad petitioner No.1 cannot be finally determined at this stage by making reference to some documents placed by the parties on the file. The learned Additional District Judge should have avoided expression of firm opinion on the above question while deciding the respondents' appeal.
It was not proper for him to have ignored copy of Aks Shajra produced by the petitioners merely on the basis of Patwari's report that the Aks Shajra in his custody did not show that Khasra No. 4237 had been divided into three parts and that no Tatimma of Khasra No. 4237/1 was prepared when the mutation of sale was sanctioned in favour of Sh. Ijaz Ahmad petitioner No. 1 because it was matter which could be determined only after the parties had been allowed opportunity to produce evidence in support of their respective contentions. The mere fact that the division of Khasra No. 4237 into three parts bearing Nos. 4237/1, 4237/2/1 and 4237/2/2 had not been given effect to in the revenue record though the above Khasra numbers were separately allotted to three persons by the Rehabilitation Department, could not be considered as the determining factor regarding B the joint ownership of the land comprising the said Khasra number. According to the entries in the copy of Register Haqdaran of year 1976-77, which has been placed on the file land comprising Khasra Nos.
4237/1, 4237/2/1 and 4237/2/2 is owned by the Central Government while its possession is with the persons to whom it was allotted. Khasra No. 4237/1 is shown in the possession of Sh. Ijaz Ahmad petitioner. Whether Inayat Hussain and Siraj Din respondents have also any right or interest in the aforementioned land has yet to be determined. Sh. ljaz Ahmad petitioner's right to use the land in his possession for construction purposes cannot be denied merely on the respondents' assertion that the said land is jointly owned by him with them. The case of Kishori Lal relied upon by the learned counsel for the respondents, where a co-sharer was granted injunction restraining the other co-sharers from building on joint land during the pendency o the suit, is distinguishable on facts because in the case under consideration joint ownership of the disputed piece of land is not an admitted fact. Sh. ljaz Ahmad petitioner claims that he is the exclusive owner in possession of the land comprising Khasra No. 4237/1. His right to use the aforementioned land in any manner he likes cannot be controlled simply because the respondents Nos. 1 and 2 contend that they are also co-owners of the said land.
' The upshot of the above discussion is that the impugned order passed by the learned Additional District Judge cannot be sustained on facts and law. This revision petition filed by the petitioners is accordingly allowed and the aforementioned order is set aside. Parties are, however, left to bear their own costs.