1. HAMOODUR RAHMAN, C. J. -These two appeal, by special leave, arise out of a consolidated judgment of the former High Court of West Pakistan. Peshawar Bench 1n Second Appeals Nos. 168 and 169 6f 1963.
2. The appellants, who are the same in both these appeals, were owners to the extent of a 1/2, share in some 40 kanals and 8 marlas of lands situated in village Hazar Khani, Tehsil Peshawar and bearing khasra NOS. 4902, 4905, 4906, 4909 and 4674. By a deed executed on the 23rd of November 1942, and registered on the 1-8th of June 1943 they sold their half share measuring 20 kanals and 4 marlas of these lands to the respondent-Firm for a sum of Rs. 3,000. The sale was mutated by entry No. 2060 sanctioned on the 25th of April 1944, but, as in the meantime the vendees had been declared to be non-agriculturists in some other matter relating to the mortgage of some other lands, the mutations were ordered to be reviewed by the Collector, and were subsequently set aside on the 23rd of June 1945.
3. In the meantime, on the 10th of January 1944, a suit for the pre-emption of the sale was filed by one Mst. Tajwar. Sultan claiming to be a ca-sharer of the vendors, and another suit for pre-emption was filed on the 21st of May 1944, by the mother of the vendors, Mst. Bibi Gula. Both these suits were consolidated and pre-emption was decreed in favour of Mst. Bibi Gula but in the event of her failing to make the deposit, pre-emption was to be granted to Mst. Tajwar Sultan. These decrees were upheld in appeal ; but, In revision, the Judicial Commissioner, Peshawar, directed the trial Court to take evidence on the question as to whether the vendees were agriculturists or not and certify the same to his Court. The trial Court found that the vendees were non-agriculturists, but that the vendors and Mst. Tajwar Sultan were agriculturists. Mst. Bibi Gula was not, however, proved to be an agriculturists on these findings, the learned Judicial Commissioner, Peshawar accepted the revision and dismissed the pre-emption suits on the 4th of September 1948.
4. Inuring the pendency of these proceedings, the Punjab Alienation of land (The North West Frontier Province Amendment) Act VIII of 1948 came into force oil the 25th of April 1948, and thereby section 4 of the Punjab Alienation of land Act XIII of 1900 was amended so as to abolish the distinction between agriculturists aced non-agriculturists. The amended section 4 read as follows :- "4. (a) All Muslims ordinarily residing or bolding, land in the North West Frontier Province shall be deemed to be members of an Agricultures tribe and constituting one group for the purposes of this Act.
5. ("b) The Provincial Government may, by notification in the official Gazette,determine what bodies of persons, other than Muslims, in any District or group of Districts, are to be deemed Agricultural tribes or, a group elf Agricultural tribes for the purposes of this Act."
6. After the coming into force of the above amendment, the vendee again applied far fresh invitation of their sale of 1942, and a fresh mutation was entered, being entry No. 2845, on the 15th of December 1950. This mutation was however, again rejected by the Revenue Officer on the 14th of flay 1955, on the ground that tile amendment was not retrospective. This decision was upheld in appeal by, the Collector and in revision by the Additional Commissioner (Revenue); but on a second revision the Board of Revenue on the 4th of February 1959, ordered that the Tales should be treated as usufructuary mortgage, on stick conditions as tale Deputy Commissioner might prescribe. The vendors sought a review of this order, but this was also rejected on the 24th of March 1959.
7. During the peadency of the revision proceedings before the Board of Revenue, the vendees filed stilt No. 266/1 of 1957, for a declaration of shelf status as agriculturists and possession on the basis of their purchase in 1942, on the 21st of November 1957, and the vendors Abdul Rauf Khan and Hidayatullah Khan also filed a counter suit on the 23rd of September 1959, which was later numbered as 4/1 of 1962, for a declaration that the vendors have become owners by adverse possession for more than 12 years of the disputed land, after their review petition was rejected.
8. Suit No. 266/1 of 1957 filed by the vendees was decreed by the senior Civil Judge, Peshawar, on the 21st of January, 1963, and the appellants were granted possession as usufructuary mortgagees under section 14 of the Alienation of Land Act for a term not exceeding 20 years. From 'this decree, both parties went up in appeal to the District Judge. Peshawar. The vendees' appeal was registered as No. 92/13 of 1963 and the vendors' appeal was registered as No. 93/13 of 1963.
9. In the meantime the suit tiled by the vendors (Nip 4/1 of 1962) was also dismissed on the 29th of June 1962, and the vendors also went up in appeal before the District Judge and their appeal was registered as No. 336/13 of 1963. Subsequently, all these three appeals were heard together beat disposed of by two separate judgments. Appeal No 336/13 of 1963 was disposed of the one judgment and appeals Nos. 92/13 and 93/13 of 1963 were disposed of-by another judgment by the learned Additional District Judge of Peshawar. The appeal of the vendees being 92/13 of 1963 was accepted and all the appeals of the vendors were dismissed. The suit of the vendees for a declara- -tion and possession was decreed as prayed for by them.
10. From these the vendors came up in three second appeals to the High Court. Those arising out of the vendees' suit were numbered as R. S. As. 168 and 169 of Ib63 and the one arising out of the vendors' suit (4/1 of 1962) was numbered as 168 of 1963. All these appeals were dismissed by the High Court on the 29th of April 1969. Again R. S. As. 169 and 169 of 1963 were dismissed by one judgment and R. S. A. No. 16"7 of 1963 was dismissed by another separate judgment.
11. The vendors then filed three petitions in this Court. Petitions Nos. 28-P and 30-P were directed against the Judgment inn R. S. A's N s. 168 and 169 of 1963 and petition. No. 29-P was directed against the judgment in R. S. A. No. 167 of 1963. Leave was granted in petitions Nos. 28-P and 30-P (wrongly referred to in the order as 29-P) and the other petition, namely, 29-P, (wrongly mentioned in the order as 29-P) was dismissed on the ground that the appellants had been unable to satisfy the Court that they had acquired title in the property in dispute by adverse possession, because, in the first place, the Revenue Authorities had held the respondents to be entitled to have a usufructuary mortgage for 20 years in the property, and, secondly, the respondents were also co- sharers of the property in suit. In the circumstances, no question of adverse possession could possibly arise.
12. Leave was thus granted only in Petitions Nos. 28-P and 30-P of 1969 to consider, firstly, as to whether the decision of the Judicial Commissioner in the pre-emption matters holding the respondents to be not members of any agricultural tribe was res judicata between the parties and could not, therefore, be re-opened in, the suits subsequently filed, and. Secondly, as to whether the suit filed by the vendees was barred by limitation.
13. The first question that has been raised on behalf of the appellants is that the question, as to whether the vendees were members of an agricultural tribe or not, could not be reopened in their suit as, the same had been decided earlier by the Judicial Commissioner, Peshawar, in, Revision No. 182 ref 1947 on the 9th of September 1948, (vide Exh. D. W. 2/18). The agitation of this question was barred by the principles of res judicata. It is true that in the revision before the Judicial Commissioner he bad accepted the finding of the! Civil Judge that the proprietors of the vender- Firm had not been proved to be members of an agricultural tribe w but this was in two rival pre- emption suits filed by Mst. Tajwar Sultan and Mst. Bibi Gula respectively in which the venders and the vendors were co-defendants and there was no contest between them inter se. A decision can be res judicata also between parties on the set aside. i.e., between co-plaintiffs or co-defendants, provided there was conflict of interest between such co-plaintiffs and co-defendants inter see in the former suit and it was necessarily to decide such conflict for the granting of relief in that suit. In the pre-emption suits the vendors-appellants could only have been made pro forma defendants and such defendants could have no real conflict of interest between them and the vendees. So there could be no question of res judicata between there.
14. In the pre-emption suits, therefore, there was no conflict of interest between the vendors and the vendees, and as such, no decision was given on any question irk dispute between the vendors and the vendees in the said suits which could become res Judicata in a subsequent dispute between the vendor and the venders, as, in the present case. In the circumstances, the plea of res judicata was rightly held to be unavailable to the appellants. In the proceedings before the Judicial Commissioner, the dispute was entirely different, namely ; as to whether the suit for pre-emption was maintainable or not, and it was remanded for the taking of evidence under the provisions of the pre-emption Act, on the question as to whether the transaction was hit by the provisions of the Punjab Alienation of land Act, 1900.
15. The finding arrived at in the suit out of which the present appeals arise namely; that the vendees were Awan agriculturists was, in any event based not only on the admission made by the appellants themselves in their sale deed, the correctness of which they admitted personally before the Registrar, but also on other documentary evidence, Exhibits P. Ws. 1/3, 1/4, 1/5 and 1/6; which showed that the vender-respondents were Awans and as such members of an agricultural tribe at the time they entered into the disputed transaction.
16. This is a finding of fact concurrently arrived at by the High Court and the first Appellate Court upon a proper consideration of the relevant evidence, which cannot be interfered with in this Court, in the absence of anything on the record to show any misreading of the evidence or non-consideration of any material evidence. None has been pointed out to us.
17. The next contention that the Punjab Alienation of Land (North West Frontier Province Amendment)
18. Act of 1948 operated retrospectively is wholly without substance. There is nothing in the Act to show that it was identified to be given retrospective effect and, therefore, according to ire accepted rule of interpretation, the amendment is prospective and soil retrospective.
19. Learned counsel for the appellants further contends that, since the Board of Revenue held in accordance with section 14 of the Punjab Aliena--tion of Land Act of 1900 that the vendees should be treated as usufructuary mortgagees with effect from the date of their sale, namely, 23rd of November 1942, the trial Court could not have passed a decree for possession on the 21st of January 1963, after a lapse of twenty years, because, under section 14 of the Punjab Alienation of Land Act, such, a usufructuary mortgage could not subsist for any period exceeding twenty years.
20. This argument is wholly misconceived, because, even if the venders were to be treated as usufructuary mortgagees, they were entitled to be put into possession as such mortgagees, as had been decreed by the. Trial Court.
21. In the present case, however, the vendees did not claim title on the basis of the order of the Board of Revenue, but they claimed title on the basis of the sale deed of 1942 on the ground that they belonged to the Awan tribe and were agriculturists. They have been found to be agriculturists and possession has been granted to them on the basis of their purchase as agriculturists.
22. The next question that has to be considered is as to whether the suit of the vendees filed in 1957 was barred by limitation. The contention of the appellants is that since the venders in their plaint admitted that the vendors had entered into possession in 1949, the suit for a declaration filed in 1957 was barred by time under Article 120 of the First Schedule to the Limitation Act. As against this, it is contended on behalf of the vendee respondents that the suit was not z suit for a declaration simpliciter but a suit for possession really which had been filed within 12 years of dispossession under Article 142 of the first schedule to the limitation Act. The relief by way of a declaration was only a consequential or ancillary relief, for, there was no necessity for them to obtain such declaration. In any event, since the appellants for the first time denied the tight of the defendants to be members of at, agricultural tribe in 1955 when challenging tire attestation of mutation No. 2845, the suit filed in 1957 was well within time even under Article 120 above mentioned.
23. In support of his contention the learned counsel appearing for the appellants has placed strong reliance on the decision of this Court in the case of Md. Akbar Shah v. Md. Yusuf Shah and others (PLD 1964 5 C 329). In this case a suit was filed for the possession of a share fn certain lands, which had already been mutated in the name of the legatee under a will alleging that the will was invalid.
24. The Court held that :- "If in order to obtain the relief of possession in this case it be essential for the plaintiff to secure a decree for sitting aside the will before he is granted possession, then the suit would be governed by the Article which applies to a suit for setting aside the will."
25. Applying this principle to the facts of the present case we find that it was not at all necessary for the vendees to obtain any decree for setting aside any mutation, for, none tied been made in anyone's favour v. Fact their complaint was that mutation had been wrongly refused by the Revenue authorities. A mutation does not in any event decide any question of title nor does it confer any right on anyone. If the vendees were Awan---s belonging to an agricultural tribe, that the Revenue Authorities had wrongly refused to attest mutation No. 2845 and all that the vendees wante1 vas that it should be attested. They did not want any mutation set aside. The principle laid down in Muhammad Akbar Shah's case was, therefore, not attracted in the present case and the Courts below were, right in holding that the venders' suit was not barred by limitation.
26. In these circumstances the appeal No. 21-P of 1971 which arises out of Civil Petitions Non. 28.P and 30-P of 1969 must fail and is, accordingly, dismissed with costs throughout. Appeal No. 22-P of 1971 ought not to have been prepared, for, it arises oat of Civil Petition 29-P of 1969, which was directed against the judgment in R. S. A. 167 of 1963, and in this leave was refused.
27. As pointed out in the leave granting order, no question of adverse possession arose in this case.
28. Part of the lands sold, as pointed out by the High Court, were banjar qadim and in the case of such lands possession follows title. The vendees thus also became co-sharers from the date of their purchase and as such no question of adverse possession could arise in the absence of any evidence of any definite act of ouster.
29. Since a paper-book has now' been prepared and the appeal registered as a result of the mistake in the number of the petition given in the leave granting order, we dismiss the same formally without any order as to costs.
30. Before parting with this case, it might also be mentioned that in the view we have taken on the main question arising in this appeal we have found it unnecessary to refer to the lengthy arguments advanced regarding the applicability of the provisions of section 21-A of the Punjab Alienation of Land Act, relied upon by the vendees in their plaint, in the province of N.-W. F. P.