' This R.S.A. Arises from the judgment/decree, dated 7-1-1978 of the learned Addl. District Judge, Sialkot, whereby he accepted the first appeal allowing 2/5 share of the suit land to the respondent- plaintiff Adalat Khan.
2. The land in question belonged to Mst. Dani. On her demise taking place some three years before the institution of the suit, it was mutated in favour of her daughter Mst. Begum Bibi and son Qazi.
The respondent-plaintiff Adalat Khan brought this suit claiming that he too was a son of the deceased lady and, therefore, entitled to a share in her inheritance alongwith the defendants. He added that during her life time she had sold this land to him and that though the sale was set aside on a suit brought by the defendants, yet he was excluded from the inheritance altogether.
3. The suit was resisted denying the plaintiff to be an heir of Mst. Dani. It was observed that since the defendants had already obtained a decree for possession in the former suit on the basis of their being heirs of the deceased, the present suit was barred by res judicata as aslo estoppel.
4. The trial Court dismissed the suit but in appeal it was decreed.
5. In the course of trial the defendant Qazi admitted the respondent Adalat Khan to be his brother meaning thereby that they both were the sons of the deceased Mst. Dani. The appellants Mst.
Begum Bibi, however, made no such concession and struck to her contention that he was not the son of the deceased. The background was that Mst. Dani took two husbands. The appellant Mst.
Begum Bibi and her brother Qazi were her issuses from one of the husbands, named Mahand. The respondent-plaintiff Adalat Khan was said to be the son of her second husband Barkat presumably from his own previous wife. In the backdrop of this confusion, earlier he made an attempt to get the land transferred in his own name from Mst. Dani during her life time but it was set aside in the previous suit on her denial to have made it. She, however, died in the course of trial but the respondent made no effort to assert himself to be her son and as a consequence the land was decreed in favour of the defendants as her sole heirs.
6. The learned Addl. District Judge seems to have erred in taking a view that the present suit was not barred by res judicata. He was influenced seemingly by the fact that in the previous decree (Exh.D.1) the question whether or not he was an heir of the lady was not directly in issue in the entire suit was based upon a sale claimed by him. I am afraid this reasoning does not hold water inasmuch as the lady had died in the course of the previous suit and succession had opened much earlier than its final disposal. Being already a party to A the suit, it was open to him to have asserted himself to be her son to claim inheritance. On his own showing he did not make any such averment. Even if the point was not directly in issue in the said suit, it ought to have been raised especially when this ground could help him to resist it. The point was, therefore, in issue constructively in the former suit and could not have been raised in the present one. I am unable to subscribe to the view of the lower appellate Court on this point.
7. Counsel for the respondents contended that at least the defendant Qazi admitted his claim and that a share of the inheritance to that limited extent cannot be denied to him. The admission on the part of the defendant Qazi may not be much meaningful as he was not giving something from his own share to the respondent-plaintiff. What he admitted was that the respondent too was a son of their mother. Any such admission manifestly would affect the entire distribution after the deceased's inheritance reducing the respective entitlement of the appellant Mst. Begum Bibi too. In other words, the statement of co-defendant would not bind Mst. Begum Bibi as to reduce her 1/3rd share. Equally the status or entity of Adalat Khan cannot be split into two, namely, to hold him to be a uterine brother of the defendant Qazi and not of his real sister Mst. Begum Bibi. If it were the case of relinquishing his own share by Qazi in favour of the respondent, it would have been entirely different. In fact, Qazi is not doing that and, therefore, his admission remains inconsequential.
8. As a result, the R.S.A. Is accepted. The impugned judgment/ decree passed by the lower appellate Court are set-aside and instead the respondent Adalat Khan's suit is dismissed leaving the parties to bear their own costs.
Regular Second .