1. ' C.M.A. No, 2741 of 1990 is an application under sections 11 and 151 C.P.C. And Article 114 of Qanoon- e-Shahadat Order.
2. ' The facts giving rise to this application are that a suit for partition has been filed by plaintiffs Ghulam Dastagir and others in respect of Survey No,57 which was sub-divided by an execution in Suit No,112 of 1981 and the present dispute relates to the sub-divided Plot No,57/2/15.
3. ' The contention of Mr. Z. U. Ahmed, who is appearing for the Defendants, is that a decree for partition was passed in Suit No,112 of 1981, on an application under Order 23, Rule 3, C.P.C. That suit was between Abdul Ghaffar and other heirs. Execution application was filed for execution of the said decree. In that execution application a consent statement was filed by three daughters of Abdul Ghaffar, who had by that time expired. That consent statement was signed not only by these three daughters of Abdul Ghaffar, but also by all other heirs including the sisters of Abdul Ghaffar or the legal representatives of those sisters. The basis of the present Suit No,720 of 1989 is that since Abdul Ghaffar deceased had left no male issue, his three daughters, namely Mst. Maryam, Mst.
4. Zainab and Mst. Mehar-un-Nisa would get only 2/3rd share from the property of their father, while the remaining 1/3rd share would go to the real sisters of Abdul Ghaffar and through them to the L.Rs of those sisters i,e. Plaintiffs and Defendants Nos.4 to 29. The reply of Mr. Z.U. Ahmad to this contention of the plaintiff's counsel is that the L.Rs, of the real sisters of Late Abdul Ghaffar were parties and signatories to the consent statement filed in the execution proceedings (Execution No,14 of 1984) of Suit No,112 of 1981. Hence they are now estopped from re-opening the said question again.
5. ' Mr. Badrudduja did not deny the facts that the consent statement was filed by the Plaintiffs as well as the three daughters of Abdul Ghaffar in the said execution application, that they were parties to it and that they had signed it. He, however, contended; (1) that Suit No,112 of 1981 was aimed at partitioning and awarding separate possession of the properties left by Faqir Mohammad Durra Khan, father of Abdul Ghaffar and Mian Khan Durra Khan, uncle of Abdul Ghaffar, whereas the present suit (S.No, 720 of 1989) has been filed for partition and separate possession of the properties left by Abdul Ghaffar and therefore, the above consent statement will not bind the Plaintiffs and that it will not be res judicata because the matter has not been heard and finally decided in respect of the inheritance of Abdul Ghaffar; and (2) that at no stage the plaintiffs have given up their right to inherit from the properties of their maternal uncle Abdul Ghaffar and therefore this consent statement cannot be treated as a surrender of their rights by the plaintiffs.
6. ' Mr. Badrudduja has in this connection relied upon the case of Mohammad Bibi v. Lal (PLD 1990 S.C. 1067) where the earlier suit between the parties related to entitlement of petitioner to the share as a heir in the estate of her predecessor which had been usurped by the Vendor. The suit did not pertain to determination of title in respect of self-acquired property of the Vendee/Respondent.
7. The subsequent suit was related to self-acquired property. It was held that the subsequent suit was not barred by the principle of res judicata. This ruling would not apply to the present case for the simple reason that the present suit relates to inheritance claimed by the Plaintiffs from Abdul Ghaffar's share as against his three daughters which they had already relinquished and given up in their favour, in Execution Application No,14 of 1984 in Suit No,112 of 1981.
8. ' The next ruling cited by Mr. Badrudduja was 1990 SCMR 143 (Evacuee Trust Board v. Abdul Saleem) where it was held that where parties were different and appeal had abated without a decision on merits, such decision would not operate as res judicata. This ruling is distinguishable from the facts of the present case inasmuch as in this case the parties that are contesting the right of inheritance to the disputed Survey number, are the same which were also the parties to the consent statement and the execution application. Moreover the Defendant, in this application has not come on the point of adjudication on merits, but on the point of estoppel by an agreement.
9. ' Lastly Mr. Badrudduja cited the case of Habib-ur-Rehman v. AbdurRehman (1987 CLC 195) where a learned Single Judge of this Court in a suit for partition held that it was never hit by the doctrine of res judicata or even by limitation and it was a continuing cause of action in any share-holder whether a minor or adult whose right has not been adjudicated earlier and files a suit for partition.
10. This ruling would also not apply to this case for the simple reason that the right of the plaintiffs has been given up by them in the consent statement referred to above, which was in the nature of family settlement.
11. ' It will be useful to reproduce paras 2(a) and 3 of the said consent statement which reads as under:-- "2. That the property of Plot No,57/2 has been divided/partitioned between the plaintiff/decree- Holder and rest of the defendants/judgmentDebtors as per annexed partition plan with their mutual consent and specifically to say:
(a) That Block No,15 in the Annexed Plan is a Plot measuring 1554-63 sq. Yards which shall be partitioned and demarcated and the said plot shall be re-numbered as 57/2/15 and shall be transferred and mutated in the joint names of legal heirs of late Abdul Ghaffar viz. Mst. Marriam, Mst. Zainab and Mst. Mehr-un-Nisa."
(b) to (g).........
3. That it is agreed by all the parties that the Surveyor of the office of the City Deputy Collector may be appointed to physically demarcate/partition the plots of the Suit property in terms of the compromise and measurement mentioned herein. It is also agreed that the existing construction shall be removed by the parties concerned if necessary for effecting the physical demarcation/partition and the possession of the respective demarcated/partitioned plots shall be enjoined or handed over to the respective parties with mutual consent of each other being family members."
12. ' So far as the legal position of this consent statement is concerned, there can be no doubt that it amounts to a family settlement and an adjustment which is at par with a compromise and is protected under Order 23, Rule 3, C.P.C. It is sacrosant and creates estoppel against the parties to that agreement, who have entered into it and have signed it, though it may not operate as res judicata. Such estoppel will arise with regard to all matters dealt with actually or by necessary implications in such an adjustment. It amounts to a contract between parties and has as such a binding effect upon all those who have signed it. Such adjustment or compromise can be set aside only on the grounds on which an agreement can be set aside. No where in the present suit (Suit No,720 of 1989) it has been pleaded by the Plaintiffs that the said consent statement/adjustment/compromise was fraudulent, unlawful or void, nor have they prayed therein to set aside the same. So long as this consent statement remains in field having been properly acted upon, the plaintiffs have no cause of action to file the present suit (S. No,720 of 1989) and are estopped from challenging the same.
13. Mr. Badrudduja has also taken an objection to the said consent statement on the ground that it was not registered. It may be pointed out that registration is a formality and the parties to the family arrangement can get the B same registered or if it requires stamp then stamped even at a later stage, but the signatories to that statement cannot be allowed to back out from the same merely on the ground that it was not registered.
14. ' For the above reasons I am of the clear view that the present suit (S. No,720/89) is barred on account of estoppel as well as non accrual of cause of action. Consequently I allow C.MA. No,2741 of 1990 and reject the plaint under Order 7, Rule 11, C.P.C. C.MA. No, 8629 of 1989 become redundant and is disposed off as such. C.MA. No,4438 of 1989 becomes infructuous and is dismissed as such.
15. C.MA. No,6125 of 1989 was not pressed by Mr. Z.U. Ahmad and has also become redundant and is, therefore, disposed of as such.
16. ' /Order accordingly.