This civil - revision is directed against the judgment and decree dated 1-11-1994 passed by the learned Additional District Judge Sargodha whereby the appeal of the petitioners was dismissed and the judgment and decree dated 19-12-1993 passed by the learned Civil Judge Sargodha was affirmed, resultantly, the suit of the respondent seeking declaration and injunction was decreed in their favour and against the petitioners.
2. The plaint in the suit filed by the respondent proceeded on the ground that she was lawfully married to one Muhammad Hussain, the father of the petitioner, in accordance with Islamic rites and Sunni sect. It was submitted that an amount of Rs.1,00,000 having been fixed as her dower, the late husband of the respondent alienated a parcel of land measuring 45 Kanal situate Chak No. 127 Shumali Tehsil and District Sargodha in lieu of the said dower and that the said Hiba-Bil-Ivaz was subsequently ratified by her late husband, who made a statement to that effect in the suit filed by the respondent which was decreed in her favour of the basis of the said statement. The plaint was summed up with the note that the late husband of the respondent and father of petitioners died on 3-6-1988 and because of the fact that the respondent was the second wife of said late Muhammad Hussain, the petitioners refused to accept the Hiba-Bil--Ivaz referred to above as also to let her have 1/8th share from the estate left by said late Muhammad Hussain. On the basis of averments noted above the respondent prayed for a declaration to the effect that she being the widow of late Muhammad Hussain in entitled to 1/8th share from the estate left by him excluding the parcel of land measuring 45 Kanals situate Chak No. 127 Shumali Tehsil and District Sargodha, as afrenoted, which had been alienated in her favour by said late Muhammad Hussain in lieu of her dower. A prayer for permanent prohibitory injunction was also added thereby seeking to restrain the petitioners from interfering in the process of obtaining a mutation of inheritance in the name of the respondent as also from interfering in cultivation of the land alienated in her favour in lieu of her dower.
3. The petitioners/defendants having contested the suit by filing written statement did not care to defend the same at the trial inasmuch as they were proceeded against ex parte vide order dated 11-5-1993 which order was subsequently set aside on 6-6-1993 where after many opportunities were given to the petitioners to produce their evidence but they failed to produce the same and it was on 4-9-1993 that the petitioners/defendants were again proceeded against ex parte. This order was never sought to be set aside by the petitioners with the result that it remained to be a case of ex parte evidence of, the respondent/plaintiff though cross-examined by the petitioners.
Needless to add that the petitioners did not pray for setting aside the said ex parte order in the first appeal filed by them or even in the present revision petition.
4. The two Courts below having appraised the evidence of the plaintiff/respondent as available on the record and also elaborately discussed the same came to the conclusion that the respondent was lawfully married to late Muhammad Hussain vide Nikahnama (Exh. P.1) on the record and that the said late Muhammad Hussain was a Sunni Muslim. It was also held that a valid decree had been passed in favour of the respondent thereby declaring her to be the owner in possession of the land measuring 45 Kanals situate Cham No.127 Shumali Tehsil and District Sargodha and apart from the above said parcel of land, the respondent was also found to be entitled to inherit 1/8th share from the estate left by late Muhammad Hussain. Consequent upon the findings noted above the suit of the respondent was decreed in her favour and against the petitioner.
5.The abovesaid judgments and decrees have been assailed in the present revision petition.
6. Before entering upon the controversy being raised through the present civil revision it would be relevant to mention here that the respondent filed an application before the learned trial Court thereby complaining that during the pendency of the suit the petitioners had illegally taken over the possession of parcel of land measuring 45 Kanals gifted to her in lieu of her dower. The said application was also decided alongwith the main suit and since the petitioners were found to be guilty of disobedience of the order passed by the Court, therefore, the possession of the said land was ordered to be resorted to the respondent.
7 Learned counsel for the petitioners argued that the consent decree on the basis whereof the respondent claimed herself to be the owner in possession of parcel of land measuring 45 Kanals was not produced during the trial of the case and the photostat copy of the said decree placed on the record could not be treated as legal evidence. It was also argued that the case of the respondent being based on the plea that she was in actual physical possession of the land forming subject matter of the gift, she could not succeed on the strength of evidence showing her to be in constructive possession of the said land. It was then added that delivery of possession of the land forming subject matter of the gift having not been proved, the gift itself could not be held to be completed or valid.
8. He went on to argue that the alleged gift in favour of the respondent being in regard to the land measuring 45 Kanals i.e. Less than the subsistence holding was eminently hit by the provisions of para. 24(5) of the Martial Law Regulation No. 115 and that the petitioners had raised a specific objection to that effect in the written-statement filed by them, yet no issue in regard thereto was framed with the result that neither the real controversy between the parties had been tried nor effectively decided by the Courts below. In furtherance of the same argument, it was submitted that the above said para of the Martial Law Regulation noted above was declared to be repugnant to the Injunctions of Islam by the judgment of the Supreme Court in the case of Haji Muhammad Anwar v. Government of Pakistan, Ministry of Justice and Parliamentary Affairs (1994 SCM R 899) but the dictum contained therein was to take effect from 28-2-1994, therefore, the rule of law as laid down in the said judgment could not be applied retrospectively.
9.The findings as to the respondent being the widow of late Muhammad Hussain was not challenged rather it was conceded that she was entitled to 1/8th share from the total estate left by said late Muhammad Hussain including the parcel of land measuring 45 Kanals.
The learned counsel for the respondent on the other hand maintained that the respondent having been declared to be the owner in possession of the land measuring 45 Kanals by the judgment and decree passed by the Civil Court, there was no occasion for her to obtain a second declaration in regard thereof and that in fact none was claimed, therefore, the non-production of the decree passed in favour of the respondent was not at all fatal to the suit. It was submitted in the alternative that there being no specific denial in regard to the decree pasin favour of the respondent, the resondent was not called upon to prove the said decree and that the Production of photostat copy therefore did suffice in these circumstances. In answer to the argument that the respondent could not succeed on the strength of evidence showing her to be in constructive possession of the land forming subject-matter of the gift, it was maintained that since the finding in regard to the delivery of possession was not challenged either in the first appeal or even in this civil revision, the petitioners could not be heard in support of the said argument. As a corollary of the above noted fact, it was submitted that the point now being urged shall be deemed to have been waived by the petitioners. Reliance in this regard was placed on Sakhi Muhammad v. Munshi Khan (1989 CLC 1794) and Talib Hussain v. Badrul Islam and another (1989 CLC 1099). As to the argument that no issue was framed in regard to the plea that the gift was void because of the provisio nscontained in para. 24(5) of the Martial Law Regulation No.115, it was submitted that no such issue was ever claimed by the petitioners and since they were proceeded against ex parte, therefore, the same was not required to beframed. Reliance was placed on Mst. Sughran Bibi alias Mst. Mehran Bibi v. Asghar Khan and another (1988 SCM R 4) with particular emphasis of discussion at pages 5 and 6. The learned counsel for the respondent while relying on the ratio of the judgment in the case of Sardar A.I and others v. Muhammad A.I and others (PLD 1988 SC 297) submitted that since no decree declaring the gift to be void had been passed till such time that the provisions of para. 24(5) of M.L.R. No.115 were declared to be repugnant to the Injunctions of Islam, therefore, the plea in defence that the gift be declared to be void and the decree passed thereon be held to be without jurisdiction cannot succeed as the rovisions contained in para. 24(5) of the M.L.R. No. 115 had already been declared to be repugnant to the Injunctions of Islam. It was also argued that there being no evidence available on the record as to what was the holding of late. Muhammad Hussain, it was not possible to decide that the gift made in favour of the respondent in regard to 45 Kanals of land was in any manner hit by the provisions of M.L.R. No.115. The debate was summed up with the argument that the petitioner's application under section 12(2), C.P.C. Seeking to challenge the decree passed in favour of the respondent having been dismissed on merits, the question that the gift was Hit by the provisions of para. 24(5) of M.L.R. No. 115 stood determined, therefore, the same could not be reopened as the plea itself was hit by the principle of res judicata.
10. The arguments of the learned counsel for the petitioners appeared to be plausible at the first blush but on deeper probe the same could not withstand the trite test of law particularly in reference to the facts available on the record. A bare reference to para. 2 of the written-statement, filed by the petitioners, would show that the factum of passage of decree whereby the respondent was declared to be owner to possession of parcel of land measuring 45 Kanals was not specifically denied and in the absence of denial, as envisaged under the law, the respondent was not called upon to prove the same, therefore, it cannot be p, successfully argued that a photostat copy of the said decree could not be treated as legal evidence in the case. On the contrary, it was the stand point of the petitioners that the gift in favour of the respondent having been made in violation of the provisions contained in para. 24(5) of M.L.R. No.115, the decree passed thereon was without jurisdiction. This aspect of the matter was even previously challenged by the petitioners by way of filing of an application under section 12(2), C.P.C. And since the order dismissing the said application was not challenged any further, therefore, the same attained finality. Obviously, the said matter could not be reagitated by filing a suit thereby urging the same plea. The argument that the matter stood determined between the parties and was hit by the principle of res judicata was definitely well-founded. As for the plea that the respondent having grounded her suit on the plea of her being in,actual physical possession of the land forming subject-matter of the case, she could not g succeed on the strength of the evidence that she was in constructive possession thereof, suffice it to say that it was during the course of the trial of the suit that the respondent filed an application thereby complaining that the petitioners have illegally taken over the possession of the land forming subject-matter of the gift. The plea of the respondent was accepted by the learned trial Court with the result that the petitioners were ordered to restore the possession of the land forming subject-matter of the gift to the respondent. The findings in this regard were not challenged either in the first appeal or even in this revision, therefore, it was rightly argued by the learned counsel for the respondent that the said plea shall be deemed to have been waived. The learned counsel for the respondent had in this behalf, very aptly referred to the cases of Sakhi Muhammad and Talib Hussain as noted supra. The argument that the learned trial Court ought to have framed an issue in regard to the plea that the gift in favour of the respondent having been made in violation of the provisions contained in tiara. 24(5) of M.L.R. No. 115 is also devoid of any merit. It is matter of record that the petitioners having joined issues with the respondent did not care to contest the suit with the result that they were proceeded against ex parte and remained as such till the time that the suit was decreed. Manifestly, the petitioners did not claim any issue in regard to their alleged plea nor there was any occasion for them to claim one because, they did not elect to contest the suit. To these circumstances, the rule of law laid down in Mst. Sughran Bibi alias Mst.. Mehran Bibi v. Asghar Khan and another (1988 SCM R 4) is attracted with full force.
Needless to add that the petitioners did not care to challenge the ex parte order against them nor ever claimed t t the same be set aside so that they are able to contest the suit.
11. Coming to the last argument of the learned counsel for the petitioners that the gift in favour of the respondent having been made in regard to parcel of land measuring 45 Kanals only i.e. Less than the subsistence holding, the same could not be given any effect in view of the provisions contained in para. 24(5) of M. L. R. No. 115, it would be noted that the provisions contained in the said para were declared to be repugnant to the Injunctions of Islam by the judgment, of the Supreme Court reported as Haji Muhammad Anwar v. Government of Pakistan, Ministry of Justice and Parliamentary Affairs (1994 SCM R 899). It is no doubt correct that the said judgment was to take effect on or from 28-2-1994 while the gift in favour of the respondent was confirmed by the decree of the Civil Court dated 24-6-1984. This decree was challenged by the petitioners by `way of filing of an application under section 12(2) C.P.C. But the same having G been dismissed on merits, the matter was not agitated any further and had in fact attained finality between the parties, therefore, the plea as to the gift being void or the decree being without jurisdiction could not be allowed to be reagitated even by way of defence because the same was hit by the principle of res judicata. It is now well-settled that if an issue bad been previously decided between the parties, the same, could not be allowed to be raised. Reagitated or for that matter required to be decided all over again because it would be against the manifest intention of section 11, C.P.C. As for the plea that the rule of law laid down in Haji Muhammad Anwar case noted (supra) could not be attracted in the facts and circumstances of the case for the reason that the gift in favour of the respondent was made and the decree on the basis thereof was passed at a time when the provisions of para. 24(5) of M.L.R. No. 115 were very much in force, suffice it to say that the said gift as also the decree passed on the basis thereof having not been declared to be void before the target date i.e. 28-2-1994 as fixed in the case of Haji Muhammad Anwar, the same purpose could not be achieved by raising the said plea in defence of the suit filed by the respondent particularly when the appeal arising therefrom was decided on 1-11-1994 i.e. At a time when the provisions contained in para. 24(5) of M.L.R. No. 115 had already been declared to be repugnant to the Injunctions of Islam. Obviously, the case was to be decided keeping in view the law as was applicable at the relevant time. The 'analogy drawn by the learned counsel for the respondent from the case of Sardar A.I is definitely applicable in the peculiar facts and circumstances of this case.
The gift having not been declared as void till 28-2-1994, the same could not be declared as such after the target date fixed in the case of Haji Muhammad Anwar as aforenoted.
12. In the circumstances, learned counsel for the petitioners has failed to satisfy me that the two Courts below have committed any illegality such as misreading or non-reading of the record or misconstruction of any document or misapplication of the law thereby calling for interference under section 115, C.P.C. This petition is found to be meritless, therefore, the same is dismissed with no order as to costs.