' In this revision petition judgment dated 29-1-1987 passed by the learned Additional District Judge, Bhakkar by which the appeal filed by the respondent against judgment and decree, dated 27-10- 1985 passed by the learned trial Court through which the suit filed by the petitioners had been decreed was accepted, has been challenged.
2. The property in dispute admittedly originally belonged to Mst. Bashiran the mother of the present petitioners who are her legal heirs. The respondent filed a suit against Mst. Bashiran alleging that he was the owner of the land in dispute and Mst. Bashiran had no right or title in it. The suit was decreed on the statement allegedly made by her before the Court through which she allegedly conceded the decree. The Court accordingly decreed the suit through judgment and decree dated 16-9-1976 (Exh. Dl).
' The petitioners were denying title of the respondent in the land in dispute as heirs of Mst. Bashiran because they were claiming to be the owners thereof after her death therefore, the respondent filed a suit for permanent injunction claiming a decree restraining the present petitioners permanently from asserting their rights in the land in the said suit a copy of the plaint of which was produced in evidence as Exh.P7 shows that the respondent asserted that he was owner of the land on the basis of decree dated 16-9-1976 passed by the Civil Court on the concession of Mst.
Bashiran. This suit was contested by the present petitioners by filing written-statement in which a specific ground was urged that the said decree (Exh.D1) dated 16-9-1976 on which the respondent based his claim of ownership had been obtained by fraud and misrepresentation as such did not create any right in his favbur as is clear from the written-statement a certified copy of which was produced as Exh.P.8.
4. The Court framed issues in the said suit out of which the main issue was as to whether the plaintiff/respondent herein was entitled to a decree as prayed for?
5. The respondent failed to substantiate his assertion of title and ownership of the property by producing evidence, therefore, the Court held that he failed to prove the said issue including the others and dismissed the suit through judgment, dated 18-6-1979 a copy of which was produced in evidence as Exh.P.5. The appeal filed by the respondent against the said judgment and decree was dismissed by the learned lower appellate Court through judgment dated 7-4-1980 (Exh.P.3). The respondent did not choose to challenge the said judgment and decree any further which 'became final, so far as assertion of right of ownership in the land in dispute based on the said decree, dated 16-9-1976 (Exh.D1) or otherwise.
6. Even after the dismissal of the said suit filed by the respondent as aforementioned he was attempting to deny the ownership rights of the petitioners on the basis of the same decree, dated 16-9-1976, therefore, the petitioners filed suit for declaration that they were the owners of the land in dispute also alleging that decree, dated 16-9-1976 since had been obtained through fraud and misrepresentation, did not effect their rights of ownership from which this revision petition has arisen. This suit was contested by the respondent Mlo in the written-statement did not raise any objection that the petitioners were barred to file the suit under section 12(2), C.P.C. After recording the evidence of both the parties the learned trial Court held that the petitioners were the owners of the land and the decree as prayed for was granted to them through judgment dated 27-10-1985.
This was assailed by the respondent in appeal before the learned lower appellate Court which has been accepted on 29-1-1987, on the short ground that since the petitioners had asserted that decree, dated 16-9-1976 was obtained through fraud and misrepresentation therefore, their remedy was to file application under section 12(2), C.P.C. And the suit was not maintainable. It was held that previous judgments dated 18-6-1979 Exh.P5 and 7-4-1980 Exh. P.3 passed by the learned trial Court and appellate Court respectively in the suit filed by the respondent for permanent injunction asserting their rights of ownership in the land on the basis of decree dated 16-9-1976 did not have the effect of nullifying or making the said decree dated 16-9-1976 as ineffective.
7. I have heard learned counsel for both the parties. Subsection (2) of section 12, C.P.C. Was inserted through amendment which was made in February, 1980, long before that the respondent filed a suit for permanent injunction asserting that he was owner of the land and he based his claim on the decree, dated 16-9.1976 (Exh.D1) also. In the written-statement filed in the said suit as discussed above, a specific ground was urged by the present petitioners that the said decree dated 16-9- 1976 was void and ineffective as the same was obtained through fraud and misrepresentation and it did not create any right in favour of respondent. This plea in defence was very much available to them under section 44 of the Evidence Act as it then stood (Now Article 58 of Qanun-e-Shahadat, 1984). The petitioners succeeded in getting the said suit dismissed through judgment, dated 17-6- 1979 (Exh.P5) wherein it was held that the respondent did not succeed in establishing his rights as claimed in the suit. This judgment was passed long before subsection (2) of section 12, C.P.C. Was inserted in February, 1980. The appeal filed by the respondent against the said judgment was dismissed by the appellate Court through judgment dated 7-4-1980 (Exh.P3). He did not agitate the matter any further therefore judgment and decree, dated 18-6-1979 Exh.P.5 became final which had the effect of holding that the respondent was not the owner of the land even on the basis of decree, dated 16-9-1976 which has the effect of nullifying the same and rendering it ineffective as against the present petitioners as their plea that the same was obtained by fraud and misrepresentation shall be deemed to have been accepted, and adjudicated in their favour.
8. In the present suit the question whether decree, dated 16-9-1976 was obtained by fraud and misrepresentation or that the same adversely effected the rights of the petitioners as owners of land being heirs of Mst. Bashiran could not be adjudicated upon as the said matter shall be deemed to have been decided in the suit filed by respondent for permanent injunction decided through judgment and decree dated 18-6-1979 (Exh.P.5) against him and even if petitioners had again alleged that the said decree was the result of fraud or misrepresentation the same did not bar the suit in view of the fact that the said plea could be ignored having been raised for the purpose of narration of facts about which it was not necessary to give any decision and in such an event even if such a plea had beep raised the suit would not be barred because it was not necessary to adjudicate the same to grant the relief to the plaintiff on other grounds.
9. Since the respondent failed in the previous suit to establish his ownership rights and title which judgment as discussed above, is operative against him and has attained finality between the parties therefore, the decree granted by the learned trial Court in favour of the petitioners to the fact that they were the owners of the land as heirs of Mst. Bashiran could not be interfered with on any ground as Mst. Bashiran shall be deemed to be the owner of the land at the time of her death, the effect of decree dated 16-9-1976 having been rendered nullified through judgment dated 18-6- 1979 Exh.P.5 which is a judgment inter se between the parties.
10. The learned lower appellate Court while taking erroneous view that judgment dated 18-6-1979 Exh.P.5 did not have the effect regarding decree dated 16-9-1976 as ineffective and nullity has failed to exercise jurisdiction vested in it under the law to decide the appeal on merits. Since the learned lower appellate Court as observed above has given finding regarding the effect of judgment dated 18-6-1979 on decree dated 16-9-1976, therefore, I am not inclined to remand the case to it as after setting aside the said finding of the learned lower appellate Court there is no other point left for decision as the other plea of the respondent that he had become owner of land by way of purchase from Mst. Bashiran cannot be allowed to be raised in this suit as he failed to establish his title and ownership in the previously instituted suit which was dismissed through judgment dated 18-6-1979 Exh.P.5 and appeal against which was also dismissed on 7-4-1980 Exh.P3 as the same is barred by principle of constructive res judicata.
11. For the foregoing reasons, this revision petition is accepted. The judgment and decree passed by learned lower appellate Court, dated 29-1-1987 is set aside and that of the learned trial Court dated 27-10-1985 restored. The parties are left to bear their own costs.