' The dispute in this case relates to agricultural land measuring 28 Kanals 11 Marlas bearing Khasra numbers 1581, 1/1582 and 1586 situate in village Matta Woodigram Tehsil and District, Mardan. The suit giving rise to this revision was instituted by Mst. Gul Farosha against Umar Gul and others respondents seeking a declaration to the effect that the land in suit originally belonged to Nasir Khan who was the father of the plaintiff and Mst. Sakina defendant No.13 and that Nasir Khan had sold the suit land jointly in favour of the plaintiff and defendant No.13 by a registered sale-deed, dated 6-1-1954 and the plaintiff was in possession of her share as owner since the time of the sale.
In the alternative prayer for possession of the suit land was also made. The suit was resisted by the respondents on various grounds. They denied the title of the plaintiff and pleaded that the suit was not within time and also barred by the principle of res judicata. The contentions raised by the defendants prevailed with the trial Court and, therefore, the plaintiffs suit was dismissed on 30-5- 1978. Reference was made to an earlier suit bearing No.402/1, decided on 24-2-1955 in holding that the land presently in dispute was also included, besides other land, in the earlier suit which was dismissed on the basis of a compromise and, therefore, the principle of res judicata was applicable to the case. Regarding the limitation it was held that the cause of action having arisen on the basis of the registered sale-deed, dated 6-1-1954 the plaintiff could have brought the suit within six years thereof under Article 120 of the Limitation Act, 1908 and having not done so the suit was barred by time. The appeal filed by the plaintiff was also dismissed by the learned Additional District Judge, Mardan on 18-12-1979. The learned appellate Court also concluded that in view of the earlier decision, dated 24-2-1955 in suit No.402/1 between the same parties, the present suit was barred by res judicata. Similarly, it was held that since the earlier suit of the plaintiff was dismissed on 24- 2-1955 the present suit, having not been brought within six years of the said date, was barred by limitation. The plaintiff feeling aggrieved has come in revision to this Court.
2. In support of the revision it is contended that the findings of both the Courts below suffer from misreading of the evidence inasmuch as the principle of res judicata was not attracted and the plaintiff's suit was not barred by limitation. After going through the entire record it appears that the contention of the learned counsel for the petitioner is not without substance. It may be mentioned that the earlier suit No.402/1 was instituted by the two sisters Mst. Gul Farosha and Mst Sakina against Kachkol, Sikandar and Darvesh whereas the present suit is instituted by Mst. Gul Farosha against Muhammad Gul and 12 others. Excepting Darvesh Khan defendant No.10 other defendants in the case were not parties to the first suit. Mst. Sakina now defendant No.13 was herself a co- plaintiff in that suit. Sikandar and Kachkol who were defendants in the earlier suit have not been sued in the present case. In the earlier suit the plaintiffs claimed 2/3rd share in the entire inheritance of their father which consisted of agricultural land measuring 290 Kanals 2 Marlas and two residential houses. In that suit the plaintiff felt aggrieved because the defendants therein claimed themselves to be transferees of 261 Kanals 11 Marlas of land from Nasir Khan by some deed whereas the plaintiffs were only transferred 28 Kanals 11 Marlas. It was, therefore, alleged that the plaintiffs were fraudulently deprived of their lawful share in the inheritance of their father. From the compromise deed submitted in that case (Exh.D.W.1/2) it appears that the plaintiffs abandoned their claim regarding the land which the defendants therein claimed to have been purchased from Nasir Khan during his lifetime and thus by way of compromise they were admitted to be lawful owners thereof. Kachkol and Sikandar Khan defendants therein also agreed to transfer 10 Kanals of land out of Khasra Nos. 1575 and 1576 in favour of Mst. Sakina in lieu of the compromise. There is no mention in the compromise that the plaintiffs also abandoned their claim to 28 Kanals 11 Marlas of land of which they had become owners by the registered sale-deed, executed by Nasir Khan in their favour. In the present suit in the inheritance of Nasir Khan is not in dispute. The plaintiffs claim is entirely based on the registered sale-deed, dated 6-1-1954. The plaintiff has claimed her half share out of 28 Kanals 11 Marlas out of the suit Khasra numbers since the other half belonged to Mst. Sakina defendant No.13. It also appears from the Jamabandis of 1961-62 and 1965-66 (Exh.P.W.1/9 and P.W.1/10) that Mst. Sakina had sold her half share measuring 14 Kanals 51 Marlas out of the suit land in favour of Misal Khan by Mutation No. 1895 attested on 4-10-1965. This land was subsequently transferred by exchange by Misal Khan in favour of Umar Gul on the basis of mutation No.1928 attested on 5-8-1966. Umar Gul then sold the land to one Zarif Khan by mutation No.1931 attested on 22-9-1966. There is nothing on the file to show that the transfer by Mst. Sakina defendant No.13 of her half share in the Suit land in favour of Misal Khan or its subsequent transfers were ever challenged by the respondents including Darvesh Khan who was a defendant in the previous suit No.402/1. The other defendants in the said suit i.e.Sikandar and Kachkol also did not challenge the aforesaid transfer by Mst.Sakina. Thus, it is obvious that both the sisters Mst. Gul Farosha and Mst. Sakina had become owners cf the land measuring 28 Kanals 11 Marlas on the basis of the sale-deed, registered on 6-1-1954. The fact that the alienation by Mst. Sakina of her share in the suit land was never questioned by Darvesh and others who were defendants in the previous suit would negative the contention of the learned counsel for the respondents that on the basis of the compromise the plaintiffs also surrendered the land presently in dispute in favour of the defendants. Although from the language used in the plaint of the earlier suit it does not appear that the plaintiffs therein had abandoned their claim to the land presently in dispute, the learned counsel for the respondents wanted to draw an inference in his favour by referring to the contents of the plaint and saying that both the transfers whether in favour of the defendants or in favour of the plaintiffs were described as having been based on fraud. However, it may be mentioned that not only no inference could be drawn from the plaint of the previous suit that the plaintiffs therein intended to abandoned their claim to the land purchased by them by using the word 'fraud' therein, it is well-established that the pleadings cannot take the place of evidence unless the person concerned was examined as a witness in the case. In the present case neither Mst. Gul Farosha nor Mst.Sakina was examined as a witness so that they should have been confronted with the plaint filed by them in the previous suit. In Mst. Khairun Nisa v. Malik Muhammad Ishaq PLD 1972 SC 25 it was observed that:- "Written statements cannot be the exhibits in the case without the person who filed the same being examined in the Court. The statements made in the written statement are not on oath. They are only verified and, therefore, they cannot be treated as evidence in the case. This view finds support from the case of J.B.Roos & Co. V .C.R. Seriven and others and Roy Chowdhury. It was held in the former case as under:- ' A verification is required with a view to discourage, if not to prevent, the institution of false suits; the Legislature never contemplated that verified statements should be treated as evidence on behalf of a plaintiff against a defendant. The inference may legitimately be drawn from the language used in section 191 read with section 193, I.P.C., that a verified statement would not be "evidence" but for the special provision of section 191 which has been enacted for a special purpose."
'It may also be mentioned that not only the question of the ownership of the plaintiffs on the basis of the registered sale-deed, was not directly and substantially in issue in the previous suit, the said question was never heard and finally decided. Even the other questions raised in the previous suit were not judicially determined and the suit was dismissed on the basis of a compromise between the parties. To attract the principle of res judicata it was essential that the matter should have been expressly or by necessary implication decided by the Court. In these circumstances and for the reason that no decision on merits was given in the previous suit, the present suit has been illegally held as barred by the principle of res judicata.
3.The findings that the plaintiff's suit was barred by time has been arrived at in disregard of the evidence available in the case. The sale was effected in favour of the plaintiff and her sister by a registered deed and a sale mutation bearing No.1230 Exh.P.W.1/6 was also sanctioned in their favour on 21-4-1954. In the revenue record subsequent to the sale in their favour both the sisters were continuously shown as owners of the suit land. They are also entered in possession through tenants at-will. Reference can be made to the Jamabandis from 1953-54 to 1969-70 Exh.P.W.1/7 to Exh.P.W.1/11. Thus, it is clear that the sale was fully given effect in the revenue record. After Mst.
Sakina had sold her half share the plaintiff is duly recorded as owner in possession of the remaining half share in the suit land. This entry continues till the latest Jamabandi of 1969-70 available on the file. Therefore, the plaintiff being in possession of the land as owner was not required to file any suit. The present suit was necessitated because her rights were denied by the respondents for the first time in the revenue Court in Suit No.143/1 which was instituted by the plaintiff for the recovery of the produce of the land. In view of the denial of the plaintiff's title the aforesaid suit was dismissed by the revenue Court on 27-5-1974. The present suit having been instituted on 9-7-1974 was obviously within time whether article 120 or 142 of the Limitation Act was applied to the case. The findings of the Courts below on the questions involved suffer from misreading and disregard of the evidence available in the case and therefore, Would be open to inteference in the revisional jurisdiction of this Court.
4. For the aforesaid reasons the revision is accepted and by setting aside the decrees of the Court below, the plaintiff/petitioner is granted the decree prayed for regarding 1/2 share of the suit land.
However, in the circumstances of the case the parties are left to bear their own costs.