' The dispute in this revision petition pertains to devolution of agricultural land measuring 115 Bighas situated in Mauza Billi Wala tehsil and District, Multan, left by late Zahoor Ahmad.
2. Zahoor Ahmad was murdered in year, 1974 and the land was mutated in favour of following heirs: (1)Mst. Iqbal Bibi (daughter) 1/2 shares (2)Mst. Hakim Bibi (since dead, widow)1/6 shares (3)Mst. Mumtaz Begum (as a widow)1/6 shares (4)Mst. Sarwar Bibi (as a sister)1/6 shares (5)Kabir Hussain5/6 shares out of 3/8 share as paternal-cousin of the deceased as residuary).
(6)Allah Ditta (7)Mst. Iqbal Bibi (daughter)
' This mutation bearing No,108, dated 20-12-1971 was attested.
3. Against this situation Mst. Hakim Bibi, Mst. Sarwar (herein respondents) filed appeal before the Collector, while Kabir Hussain, Allah Ditta and Hafizullah (herein petitioners) filed a suit for declaration to the effect that Mst. Hakim Bibi was divorced by propositus Zahoor Ahmad in his lifetime, that neither Mst. Iqbal Bibi was the daughter of Zahoor Ahmad nor Mst. Sarwar Bibi was his sister. The suit was contested by Mst. Hakim Bibi, Mst. Iqbal Bibi and Mst. Sarwar Bibi, who took up the position that they were the legal heirs of Zahoor Ahmad and plaintiffs were not entitled to inherit from the legacy left by the propositus.
4. During the pendency of the suit, the parties arrived at compromise. The compromise deed was submitted before the Court on 4-5-1972. The main features f the compromise were as follows:-- {{URDU TEXT}} ' This deed of compromise was signed by Kabir Hussain, Allah Ditta and Hafizullah and carried the thumb-impressions of Mst. Hakim Bibi, Mst. Sarwar Bibi and Muhammad Hussain as a general attorney of Mst. Iqbal Bibi. The signatures of Advoctes of the parties were also appended. The learned trial Court in accordance with the terms of the compromise deed noted above decreed the suit. The Revenue Officer attested Mutation No,108 in the following terms:-- {{URDU TEXT}}
5. On 15-7-1976 Mst. Hakim Bibi (since dead), Mst. Iqbal Bibi and Mst. Sarwar Bibi brought suit for declaration to the effect that the compromise deed dated 4-5-1972 was obtained by Kabir Hussain, Allah Ditta, and Hafizullah through fraud and deception; that Mutation No,108 was, even otherwise, in violation of compromise deed.
6. The suit was contended. The following issues were framed:-
(1) Whether the description of the suit property given in the plaint is incorrect? O.P.D.
(2) Whether the suit is time-barred? O.P.D.
(3) Whether the plaintiffs are estopped to bring the present suit by their own conduct? O.P.D.
(4) Whether the suit has not been correctly valued for the purposes of court-fee and jurisdiction? If not, what is the correct valuation? O.P.D.
(5) Whether the suit is barred by the principle of res judicata? O.P.D.
(6) Whether the impugned Mutation No,108 dated 20-12-1971 and the impugned decree, dated 4-5- 1971 are illegal, void and outcome of fraud and are ineffective against the rights of the plaintiff?
O.P.P.
(7) Whether the plaintiffs are the owners in possession of the suit property and the defendants have no concern with it? O.P.P.
(8) Relief.
7. The learned Civil Judge by judgment and decree, dated 20-1-1988 dismissed the suit by coming to the conclusion that the suit was barred by time; that the plaintiffs were estopped to bring the present suit; that suit was barred by principle of res.Judicata, that the disputed mutation was correctly attested.
8. Feeling aggrieved, Mst. Hakim Bibi's legal heirs namely, Mst. Jqbal Bibi and Mst. Sarwar Bibi lodged appeal which was accepted by the District Judge by means of impugned judgment, dated 13-4-1991. The learned District Judge concluded that the compromise deed noted above was unexceptionable; that Mutation No,108 was not attested in accordance with the terms of the compromise deed noted above; that Kabir Hussain, Hafizullah and Allah Ditta were entitled to 16 Bighas only and Mst. Mumtaz Begum was entitled to 7 Bighas of the land, while the rest was to be given to parties in accordance with the principle of Sunni Muslim Law of Inheritance. Learned District Judge held that the suit was within time and was not hit by the principle of res judicata.
Hence this revision petition.
9. In disputing the correctness of the decree of the first appellate Court, the learned counsel for the petitioners submitted his arguments on two grounds:--
(1) In the first instance, it was argued that the respondents had filed suit wherein the terms of the compromise/decree, dated 4-5-1972 were impeached. It was submitted that such suit was not competent in view of the clear bar contained in section 47 of the C.P.C. According to him the question regarding discharge, execution and satisfaction of the decree could be only challenged before the executing Court and not by bringing separate suit. Reliance was placed on Sri Raja Hommadayara Nagunna Naidu Bahadur Zamindar Oaru and another v. Ravi Venkatapayya and others AIR 1923 Privy Council 167).
(2) In the 'second instance it was argued that the suit was governed by Article 95 of Limitation Act, 1908 (IX of 1908) and not by Article 120. According to the learned counsel the respondents were party to the compromise deed. The mutation was attested in consonance with the terms of consent decree; that the suit was filed after the expiry of three years and so was time-barred. Help was sought from Muhammad Inayat v. Ghulam Murtaza PLD 1987 Lah. 537, Abdul Wahid v. Abdul Ghani and others PLD 1963 (W.P.) Kar.
990. The Rawalpindi Central Cooperative Bank Ltd., Rawalpindi v. Raja Muhammad Riaz Khan PLD 1966 (W.P.) Lah. 912 and Meral Ramanna v. Nallaparaju and others PLD 1956 SC (India)-220.
10. I have heard the learned counsel for the petitioners at considerable length and gone through the record with his assistance, and carefully examined the case-law cited by him. After taking into consideration the contentions of the learned counsel, the facts of the case, I do not find any force in these contentions. The facts of the cage from which this revision has arisen, are not much in dispute. It is uncontested that the dispute relates to legacy of Zahoor Ahmad; that he was survived by Mst. Iqbal Bibi, Mst. Hakim Bibi, Mst. Mumtaz Begum and Mst. Sarwar Bibi who were his daughter, widows, and sister, respectively. The parties are Sunni; that according to the Sunni law of Inheritance Mst. Iqbal Bibi, Mst. Hakim Bibi, and Mst. Mumtaz Begum were legal heirs while Mst.
Sarwar Bibi was a residuary; that in presence of Mst. Sarwar Bibi, Kabir Hussain, Allah Ditta and Hafeezullah were excluded from inheritance as being residuaries of remoter degree qua Mst.
Sarwar Bibi. It is also uncontested that they got instituted a suit in which relationship of legal heirs was disputed and in such circumstances the compromise deed was executed on 4-5-1972 wherein these petitioners were successful in having a share from the legacy of Manzoor Ahmad. From the terms of the compromise it is clear that they were given 16 Bighas. There is no statement of Mst.
Hakim Bibi and Mst. Iqbal Bibi and Mst. Sarwar Bibi indicating the relinquishment of their right in favour of anybody; that Mutation No,108 was attested in which Mst. Iqbal Bibi, Mst. Hakim Bibi and Mst. Sarwar Bibi were excluded. After taking into consideration these circumstances of the case, the learned District Judge dealt with the question of rights of the parties in following terms:-- "In view of what has been discussed above I fully agree with the learned counsel for the applicants that the true and correct import of agreement, Exh.P.19, is that Mutation No,108 was set at naught by the parties themselves and then they mutually gave 16 Bighas of the land to respondents Nos.1 to 3 irrespective of the fact that that they were not entitled to any inheritance. (The learned counsel for the appellants has called this share as `Jagga Tax' it may be so); seven Bighas were given to respondent No,5 irrespective whether the appellants disputed her Nikah with the deceased or not and remaining was left for the appellants according to their Sharai shares. Consequent to above discussion, I reverse the findings of learned Civil Judge on issue No,6 and answer it in the terms mentioned above."
12. Viewed from the aforesaid facts and circumstances of the case, I have no difficulty in reaching the conclusion that the finding of the learned District Judge was eminently just and in accordance with well-known principle of Muslim Jurisprudence. It is quite clear to me that the disputed mutation was incorrectly attested and the rights of the legal heirs were brazenly ignored. I am, therefore, of the view that the finding of the learned District Judge does not suffer from any illegality or any factual infirmity.
13. Having determined the rights of the parties on merits, I proceed to determine the legal contentions of the learned counsel for the petitioners. In order to appreciate the legal contentions regarding the unmaintainability of the suit in view of section 47 of the C.P.C. It is appropriate to examine section 47 of C.P.C. As well as sections 42 and 43 of the Specific Relief Act, 1877. They are as follows:-- Section 47.--- (1) All questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under the section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purpose of this section, be determined by the Court.
Explanation.---For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit.
' Section 42.--- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: ' Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than mere declaration of title, omits to do so. Explanatidn.-- A trustee of property is a person interested to deny a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.
' Section 43-A.-- A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees.
14. A bare look at section 47 of the C.P.C., indicates that this section relates to questions pertaining to execution, discharge or satisfaction of the decree which are executable. In such cases whenever question arises between the parties to decree in respect of execution, discharge or satisfaction of the decree, the executing Court has been given power to adjudicate such questions. Section 47 of the Civil Procedure Code is not applicable to declaratory decrees passed under section 42 of the Specific Relief Act, 1877 (I of 1877). Such decrees have the effect of rendering:declaration of legal character or any right in property which is binding on all parties to the suit or persons claiming through them respectively. From a comparative examination of section 42 of the Specific Relief Act and section 47 of the Civil Procedure Code it is quite clear that whenever the right of a party in a property is invaded by erroneous or a fraudulent entry in Revenue Record, the said party is entitled to sue for seeking declaration in respect of his right in such property. Applying these principles to the facts of the case, it is quite clear that mutation No,108 was attested incorrectly against the plaintiffs and so respondents' suit was competent under section 42 of the Specific Relief Act.
16. As regards the contentions relating to limitation I do not find any force in it. The suit was filed for declaration under section 42 of the Specific Relief Act; it pertained to a grievance against entry of mutation incorporated in mutation register; from a bare reference to Article 95 of Limitation Act, it is evident that this Article is applicable when the suit is filed for setting aside a decree obtained by fraud. In this case the grievance was two-fold that the consent decree was based upon fraud and secondly the mutation was not attested in consonance with the decree.
17. From the perusal of Article 95 of the Limitation Act, 1908 (IX of 1908), it is quite clear that this Article is only applicable where the relief is for setting aside the decree obtained by fraud or for further relief on the ground of fraud, and not otherwise. As shown above, this suit included the relief of declaration that Mutation No,108 was illegal.
18. Even otherwise, this revision petition is to be looked from another angle, the revisional jurisdiction is discretionary in nature. In this case, the petitioners had come to Court with unclean hands. In fact they had no right of inheritance in the legacy .Of Zahoor Ahmad. They have, in fact, involved the legal heirs in protracted litigation. In this way they have obtained 16 Bighas; still they seem to be unsatisfied and are dragging the legal heirs in litigation. I am, therefore, clear in my mind that the petitioners are not entitled to grant of relief in revisional jurisdiction of this Court.
19. In the light of foregoing analysis I find no merit in this revision petition. In result, this revision petition fails and is dismissed in limine.