' Dispute involved in this civil revision has arisen out of a suit filed by the petitioners, Noora and others, against the respondents, Umar Hayat and others, alleging that the petitioners and respondents Nos.2 and 3, namely, Khadim Hussain and Mst. Sabhai, were owners of certain land.
Before institution of the said suit, Suit No,414 of 1969, brought by respondent No,1, Umar Hayat, claiming to be owner of the said land, under a sale, was decreed in his favour. Validity of the decree passed in the suit of Umar Hayat was also challenged by the petitioners in their suit which was resisted by the respondents, on several grounds. He also prayed for special costs. The following issues were framed by the learned trial Court:- "(1) Whether the land in dispute is incorrectly described? If so, what was the correct description ?
(2) Whether the suit is barred under section 12(2) of C.P.C. ?
(3) Whether 'the suit is not competent in its present form and the same is incorrectly valued for the purposes of court-fee and jurisdiction? If so, what is the correct valuation ?
(4) Whether the suit is within limitation?
(5) Whether the plaintiffs and defendants Nos.2 and 3 are owners in possession of the land in dispute ?
(6) Whether the decree dated 6-12-1969 in Suit No,414 of 1969 titled Umar Hayat v. Hakman and others, and the consequent Mutation No,206 are collusive, fictitious, against law and fact, without consideration, void and inoperative ?
(7) Whether the suit of the plaintiff is false, frivolous and vexatious and on that account the defendants are entitled to special costs? If so, 'to what extent ?
(8) Whether the plaintiffs are estopped by their conduct to file the present suit.?
(8-A) Whether the impugned mutation is hit by M L R 115 and hence is void ?
(9) Relief.
' The learned Civil Judge, who decided the suit, answered Issues Nos.1 and 2 against the respondents and Issues Nos.3 to 6, 8 and 8-A against the petitioners. While dealing with Issue No,7, he awarded Rs,3,000 as special costs to the respondents. The petitioners went in appeal before an Additional District Judge but without success. Hence this civil revision.
2. Learned counsel for the petitioners wanted to assail the findings of the learned lower Courts on Issues Nos.3 and 5 but it was pointed out by learned counsel for respondents Nos.1 and 2, hereinafter referred to as the contesting respondents, that since the said findings were not challenged by the petitioners before the learned appellate Court, they could not do so before this Court. He invited my attention to certain portion of the judgment under revision (pages 87 and 91 of this Paper Book) to support his plea. Presumption of correctness is also attached to the official record. I, therefore, agree with learned counsel for the contesting respondents that finding on Issue No,8-A only was questioned by the petitioners before the learned Additional District Judge. Since findings on other issues were not assailed before him, it is not possible for the petitioners to do s at this stage of revision.
3. Learned counsel for the petitioners did not say anything against the findings of the learned Additional District Judge on Issue No,8-A. I am, therefore, constrained to uphold that finding.
4. As for special costs imposed on the petitioners, learned counsel for the contesting respondents, voluntarily stated that the respondents would not like to have those costs in view of their success in the main case. I, therefore, set aside the findings of the learned lower Courts on Issue No,7 which relates to special costs.
5. In view of what has gone above this civil revision is accepted to the extent of special costs. The judgments and decrees passed by the two Courts below are, therefore, modified to the extent that instead of petitioners paying Rs,3,000 as special costs, the parties shall bear their own costs.
6. This civil revision is disposed of accordingly, with no orders as to costs.