' The short and relevant background in which this civil revision is filed by Muhammad Ayub etc. Is that the property originally belonged to Abdullah Khan, who was the father of Muhammad Ayub and Muhammad Yousaf, the present contestants, and father-in-law of Mst. Fazal Jan petitioner No,2. Vide registered deed No,374 attested on 21-8-1959 said Abdullah Khan sold his property in favour of his son Muhammad Ayub and his daughter-in-law Mst. Fazal Jan, the wife of another son Fareed. On the basis of the aforesaid registered deed a Mutation No,396 also was attested on 7-2- 1963.
2. On the other hand a Mutation No,397 was also attested on 7-2-1963 whereby the property of Mst.
Begum Jan the mother of Mst. Fazal Jan aforesaid, was shown to have been transferred in favour of Muhammad Yousaf. This sale was challenged by Mst. Fazal Jan the daughter of Mst. Begum Jan in Suit No,219/1 which was compromised and 6 Kanals of land was returned to Mst. Fazal Jan.
3. Muhammad Yousaf filed a Suit No,189/1 that in the former Suit No,219/1 Muhammad Ayub and Mst. Fazal Jan had agreed that 1/3rd share from the inheritance of their father Abdullah Khan would be given to Muhammad Yousaf. Some agreement dated 18-9-1978 was also referred to in this behalf and the suit was for the specific performance of contract. This suit of Muhammad Yousaf No,189/1 (Exh.PW2/1) ended into compromise and so on 4-9-1982 it was dismissed.
4. It appears allegedly that Muhammad Ayub and Mst. Fazal Jan the defendants in Suit No,189/1 did not act upon such compromise, started claiming title to the suit land and hence Muhammad Yousaf brought present Suit No,69/1 on 19-6-1988 claiming the same land which was the subject- matter of compromise in Suit No,189/1 decided on 4-9-1982. The suit was contested by Muhammad Ayub and Mst. Fazal Jan again and ultimately on 17-5-1992 a decree was granted in favour of Muhammad Yousaf by the learned Civil Judge, Abbottabad which was upheld by the learned Additional District Judge, Abbottabad in appeal on 6-11-1993. Muhammad Ayub etc. Have come up in revision.
5. A perusal of record and the chequered background of the present litigation would reveal that both the learned Courts below have failed to appreciate the matter in its true perspective. They have avoided making least reference to certain important legal aspects of the case.
6. The compromise in dispute was submitted in Suit No,189/1. The copy of such compromise is Exh.PW2/5. It seems to have been submitted in dubious I circumstances, in that, it was placed before Court on 2-9-1982 when both the parties were present but special date was obtained for statement of parties qua such compromise and thus the witnesses in the main suit were not examined on 2-9-1982. Anyhow, the case came up on 4-9-1982 when also both the parties are shown to have been present. It is rather baffling to note that as per compromise the property is surrendered by Muhammad Ayub and Mst. Fazal Jan but the solitary statement recorded is that of Muhammad Yousaf, the plaintiff. This method of dealing with a compromise is not at all lawful and the issue could not be decided on the unilateral statement of Muhammad Yousaf who was the gainer in the compromise. No property could ever be transferred on the strength of compromise unless the statement of the party relinquishing his right is recorded, especially when such party was present before the Court as per order-sheet of 4-9-1982.
7. A similar situation had arisen in Pirzada Mumtaz-ud-Din v. Farukh Sultana and another PLD 1960 Kar. 409 where a compromise of 'Talaaq' signed by the counsel of the husband and such signatures refused to be made by the husband, was set aside. The Honourable Judge in the aforesaid case at page 416 citations 'L & M' had given detailed requisites for a compromise submitted by the parties in Court. It requires that a compromise be read out to the parties in open Court and any party agreeing thereto be asked to sign it and give statement in Court to that effect.
It is only thereafter that a decree should be passed in terms of such compromise. This method was held to be not only the safest but also the very best.
8. Similarly a compromise was held to be not binding by the Supreme Court, when the parties failed to certify it before the Court. Umar Bakhsh and 2 others v. Azim Khan and 12 others 1993 SCM R 374 was relied upon by the learned counsel. Same view was taken by our own High Court in Mst.
Khurshid Begum v. Mir Muhammad and 8 others 1990 CLC 1614 that a Court was to attest only that compromise which is admitted by the parties in open Court and if they are made to understand the terms of compromise.
9. In this view of the matter no statement of the parties relinquishing their right through such compromise was recorded in open Court and thus it never conferred any right or title to the opposite-party (Muhammad Yousaf) who gave his solitary statement as plaintiff. The compromise was never valid in law and thus was illegally followed by the two Courts below.
10. The second aspect of the case is that the plaintiff Muhammad Yousaf never asked the Court to grant decree in his favour of the property parted with by the opposite-party. It was on the basis of his own statement that his suit was dismissed rather than decreed. He never went in appeal and kept quite over what had happened. The instant suit is, therefore, hit by the principle of res judicata as well and is not maintainable in law.
11. The plaintiff Muhammad Yousaf therein, neither reserved his right nor asked for permission to bring a fresh suit and thus his withdrawal from the suit was fatal and no suit could be filed afresh.
Our own High Court had reiterated this principle in Muhammad Bakhsh v. Abid Hussain Shah and 6 others 1991 M LD 571.
12. Learned counsel for the respondents raised an objection that the petitioners were bound by the compromise because no objection was raised when it got exhibited. This makes the least difference, so far as this suit is concerned because the very veracity of such compromise is challenged and is the subject-matter of the present suit: The same argument applies to the objection that no cross-examination of Muhammad Yousaf was done in regard to the compromise.
13. The third objection was to the effect that no plea in the written statement is taken qua Mst. Fazal Jan that she was a Pardanashin lady and hence no benefit could be claimed. This also is not material because in the circumstances of each case a Court can itself come to the conclusion whether a lady is or is not Pardanashin lady but, in the instant case the whole discussion has been regarding the statement of a party to compromise to be recorded in open Court. Whether such party be a Pardanashin lady or any other defendant, makes the least difference and no such compromise is binding even the party is an educated person.
14. Having observed as above, I hold a clear view that both the Courts below have committed illegality in following a compromise on which the statement of party affected was never recorded.
The revision petition is accepted, the concurrent findings of both the Courts below dated 17-5-1992 and 6-11-1993 respectively are set aside and the suit of respondent Muhammad Yousaf is hereby dismissed.