1. This R.S.A. arises out of a suit for declaration and joint possession filed by Mastey Khan, respondent No. 1, on 29th of June 1972 in the Court of Senior Civil Judge, Sheikhupura. The plaintiff had assailed the validity of the sale-deed dated 7-2-1970 Exh. P-7 to the extent of 3/4th share. He asserted that Mst. Rahmi, deceased defendant No. l (now represented by the respondents Nos.2 and 3) was a limited owner and could not alienate the disputed land beyond her 1/4th. share under the Islamic Law. The limited interest came to an end with the enforcement of the West Pakistan Muslim Personal Law (Shariat) Act, 1962 which was enforced on 31-12-1962. In para 1-b of the plaint, the pedigree-table of the parties was given and in para. 2 it was stated that Ghasetu deceased was governed by Customary Law and after his death, the property was accordingly mutated in the name of Mst. Rahmi as a limited owner. In the written statement filed by Munshi Khan appellant paras. 1-a and 1-b and 11 were denied. However, no detailed pedigree of Ghasetu deceased was given in the written statement. In para. 2, it was stated that it was wrong to allege that the land of Ghaseetu deceased was mutated in the name of Mst. Rahmi and that she was limited owner. In the written statement filed by Mst. Bashiran and Mst. Ghafooran and sisters of Mst. Rahmi deceased it was claimed that Mst. Rahmi was full owner of the property and that she had full powers to transfer the same. In the written statement filed by Ejaz Begum defendant No.4 and Razia Begum defendant No.5, para. 2 of the plaint in which it was stated that Ghaseetu was governed by custom and that on his death, the property was mutated in the name of Mst. Rahmi as a limited owner was admitted to be correct. On the divergent pleadings of the parties the trial (Curt framed the following issues:-- (1)Whether the suit is time-barred ? OPD Whether the matter in dispute has been finally decided by, the ADC(r) on 27-4-1964, if so, its effect?
2. OPD.
3. (3)Whether the defendant No:2 is a bona fide purchaser for value of the suit land without notice of the defect in the title of vendor? OPD (4)What was the nature of estate held by Mst. Rahmi deceased ? OPD (5)Whether the plaintiff is entitled to inherit Ghasitoo deceased, if so, to what extent? OPD (6)Whether the sale of suit land in favour of defendant No.2 is illegal, void, ultra vires and inoperative as against the rights of the plaintiff on the grounds mentioned in the plaint ? OPP.
4. (7)Whether the defendants are entitled to recover special costs from the plaintiff, if so, to what extent ? OPD (8)Whether this suit has been improperly valued for purposes of court-fee and jurisdiction ? OPD (9)Whether the plaintiff is entitled to joint possession of the suit land ?
5. OPP (9-A) Whether the defendants Nos.4 to 6 are heirs of Ghaseetoo deceased ? OPD
(10) Relief.
2. The parties produced their oral as well as documentary evidence and after perusing the same the trial Court dismissed the suit on 7th of September 1982. On an appeal filed by Mastey Khan, respondent No.l the case was remandec. by the appellate Court vide the order dated 10-12-1983.
6. After remanc the trial Court decreed the suit vide judgment and decree Jated 12-3-1986. The petitioner's appeal was dismissed by the learned Additional District Judge, Sheikhupuia, vide his judgment and decree dated 8th of January. 1990.
7. 3The appellant's learned counsel contends as under:-- (i)The plaintiff/respondent No. l had approached the Court with unclean hands and was guilty of suppressing material fact. He points out that the earlier litigation pertaining to the legality of Mutation No.2 attested on 4th of November, 1963 was suppressed. Moreover,- the order dated 27th of April- 1964 passed by Additional Deputy Commissioner (Exh. D-4) was suppresses (ii)The suit filed b5 respondent No. l was time-barred. The findings of the Courts below or issue No. l are erroneous.
8. (iii)The order passed by the Additional Deputy Commissioner on 27th of April 1964 would operate as res judicata to the suit filed by the respondent No.l. Reliance is placed on the cases of Rai Singh and another v. Man Singh and others (AIR 1933 Lahore 738) and Daulat Ram v. Munshi Ram and others (AIR 1932 Lahore 623).
9. (iv)The petitioner was a bona fide purchaser of the disputed land from. Mst. Rahmi who was recorded as full owner in the revenue papers. In this connection issue No. 3 was not decided by the trial Court and the appellate Court erroneously decided it jointly with issues No.3, 4, 5 and 6. The findings of the Courts below issues Nos.4 to 9 suffer from mis-reading or non-reading of evidence.
10. 4.On the other hand the learned counsel for the respondent No.1 submits:-- (i)The plaintiff did not suppress any material fact as respondent No. 1 had produced a copy of the grounds of appeal filed by the present appellant before the Additional Commissioner.
11. (ii)The suit was within time. It was filed on 29-6-1972 and the cause of action occurred to respondent No.1 on 7-2-1970 when the impugned sale deed was made. Prior to the said date, the plaintiff could not legally file any suit to protect his reversionary rights as Mst. Rahmi was alive.
12. (iii)After the termination of the widow's limited estate on the enforcement of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 Mst. Rahmi succeeded to 1/4th share of the disputed property and respondent No. 1 became an owner to the extent of 3/4th share. She was in possession as a joint owner and could not set up. a hostile claim against respondent No. 1.
13. (iv)The appellant cannot claim to be a bona fide owner because under the law, Mst. Rahmi had no right beyond her 1/4th share. The legal position was absolutely clear. Therefore, the appellant who is real brother of Mst. Rahmi could not claim to be a bona fide purchaser.
14. (v)Order passed by ADC(C) on 27th of April 1964 does not operate as res judicata. The provisions of section 11 are attracted only when the earlier suit was decided by a competent Civil Court and not by revenue authority.
15. (vi)The Courts below have concurrently recorded findings in favour of the plaintiff/respondent No. l on issues Nos. l to 6 and 9 after properly appreciating the entire evidence on the record. There is no mts-reading or non-reading of evidence.
5. There is considerable force in the arguments of the respondent's learned counsel. Mst. Rahmi had inherited the property of her husband who died in India before partition. The deceased was Rajput by caste and governed by custom in the matters of inheritance etc. At the time when mutation of inheritance was attested by the Revenue Officer on 4-11-1963 (Exh.P.10). Mst Rahmi had appeared before the Revenue Officer and admitted that she was a limited owner. Hence she was given 1/4th share in the property and the rest 3/4th share was mutated in the name of Maseetay Khan respondent. The appellant's own witness Hadi Hassan D.W.2, a Rajput by caste admitted that in his brotherhood daughters were not given their shares in the inheritance. The respondent's witness Muhammad Sharif P.W.1 specifically stated that Rajputs A were governed by the Customary Law. Maseetay Khan P.W.2 also stated that in the matters pertaining to inheritance etc. "we were governed by the Customary Law". He further sated that his grandfather and that of Ghaseetu deceased were real brothers. The above-referred assertions made by P. W.1 and P. W.2 were not challenged in the cross-examination and would be deemed to have been admitted Therefore, it is proved on the record that Ghaseetu deceased was governed by custom in the matters of inheritance and alienation of property Moreover, Mst. Rahmi deceased defendant never claimed that her deceased husband Ghaseetu was not governed by Customary Law in the matter of alienation of property. In fact, she tried to set up the case that in India she personally owned some property and did not inherit the ,~amc from her husband. In this connection, reference may be made to averments of para. 2 (on merits) of the written statement. It is stated therein that it was wrong to allege that the property of Ghaseetu deceased devolved on Mst. Rahmi or that she was a limited owner. It is further stated .that Mst. Rahmi was full owner of the disputed property. This clearly meant that in India she herself owned some property and that the property in dispute was not inherited by her from her husband. Her claim was clearly belied by the record received from India which pertained to the property owned by Ghaseetu deceased in village Pipal Mangoli, Tehsil and District Patiala. The pedigree-table brought on the record pertains to land owners of village Pipal Mangoli which includes the name of Ghiceem deceased. Underneath the name of Ghaseetu, the following entry exists: This clearly meant that the property left by Ghaseeiu deceased was in occupation of his widow.
16. Since the deceased was governed by custom, Mst. Rahmi occupied the property as a limited owner. She failed to bring on the record any evidence to substantiate her claim that she personally owned landed property in India in lieu of which she could be allotted land in Pakistan.
17. 6.The argument of the appellant's learned counsel that the decision of the Revenue Court operated as res judicata to the civil suit filed by the respondents C is devoid of any force. The provisions of section 11 of the C.P.C. are attracted only where the previous suit between the same parties involving the same controversy is finally decided by a Civil Court. The judgments in the cases of Rai Singh and Daulat Ram relied upon by the appellant's learned counsel are distinguishable. In the former case, it was held that where the Revenue Court had exclusive jurisdiction to decide the matter then a finding recorded by it operated as res judicata in the civil suit. A similar view was expressed in the tier case. It may be mentioned that in Daulat Ram's case a landlord had filed a civil suit for eviction of his tenants. On the defendant's objections, Civil Court held that the suit was cognizable by Revenue Court. The landlord appealed to the District Judge who dismissed the appeal and then the suit went to the Revenue Assistant who decided the same in favour of the tenants/defendants. The landlord's appeal was accepted by the Collector who passed a decree for possession in their favour. Thereafter, another suit was filed in the Civil Court by the tenants which was held to be barred by res judicata in view of the earlier decision of the Court. I may observe that in a matter in which the Revenue Court enjoys exclusive jurisdiction, then the jurisdiction of the Civil Court is barred from the application of the principle of ouster of jurisdiction and not merely due to application of the principles of res judicata. In the present case, the Revenue Authorities did not enjoy the exclusive jurisdiction to decide the delicate p questions whether the parties were governed by Customary Law, whether Mst. Rahmi was absolute owner of the property and whether the appellant had acquired a valid title in the disputed property. This jurisdiction clearly vested in the Civil Court. Hence the earlier decision of the Revenue Court, which otherwise stood nullified in view of provisions of section 2(2) of the Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance, 1972, did not operate as res judicata in the civil suit filed by respondent No. 1.
7. The appellant's learned counsel laid great stress on the point that the appellant was a bona fide purchaser of the land for valuable consideration without notice of any defect in the title of Mst.
18. Rahmi deceased. He urged that the trial Court did not decide issue No. 3 relating to the bona fide purchase and that the case merited remand on the point. The argument is devoid of any forces.
19. The appellate Court had decided issue No. 3 and held that the appellant was not a bona fide purchaser. Even otherwise, instead of remanding the case to the trial Court this Court can decide the issue in the light of the material on the record. This view finds support from the judgments in the cases of Syed Masood Hussain and others v. Muhammad Saeed Khan and others (PLD 1965 (W.P)
20. Lahore 11), Sher Muhammad and another v. Jamadar Ghulam Ghaus (1983 SCM R 133) end Fateh Ali v. Pir Muhammad and another (1975 SCM R 221). The onus of issue No. 3 was on the appellant who did not discharge the same by any cogent evidence. While appearing as D.W.3, the appellant stated that he had purchased the disputed land for a sum of Rs.60,000 from his sister Mst. Rehmi.
21. He further stated that Mst. Rehmi was the owner of the land and was not governed by the Customary Law. He denied the relationship of Maseetay Khan respondent No.l with Ghaseetu, the deceased husband of Mst. Rehmi. Obviously, the appellant being the real brother of Mst. Rahmi was aware of the past litigation and claim of Maseety Khan for 3/4th share in the disputed property.
22. That is why he wrongly denied his relationship with Ghaseetu deceased. This clearly smacks of mala fides on his part. It may be mentioned that when Mst. Rahmi appeared before the Revenue Officer at the time of attestation of Mutation No.2 pertaining to inheritance of Ghaseetu deceased, she admitted that she was governed by custom but added that after her death the property should go to Mst. Ulfat (mother of Ijaz Begum, Razia Begum and Maju Begum respondents Nos.4, 5 and 6). This betrayed her mind that she wanted that respondent No. l should not get any share in the property. In order to achieve the same object, she subsequently transferred the entire land to her own brother, the appellant. The appellant was fully aware of the defect in the title of Mst. Rahmi and appeared to have conspired with his sister to deprive respondent No .l from the inheritance of Ghaseetu deceased. Therefore, it can be safely concluded that the appellant was not a bona fide purchaser of the disputed land for valuable consideration without notice of defect in the vendor's title 8For the foregoing discussion, I do not find any merit in this appeal which is dismissed, leaving the parties to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.