SAVED ZAHID HUSSAIN, J. -- This civil revision is directed against the judgment dated 14.12.1995 of a learned Addl. District Judge, whereby he upheld the judgment of the learned Trial Court dated 13.11.1991 and appeal filed by the present petitioner was dismissed by him.
2. Since Civil Revisions Nos. 107-D/96, 108-D/96, 109-D/96, 173-D/96 and 340-D/96 raise identical issues and between the same parties, these are disposed of through this judgment, except that a separate note has been added in CR. No. 340-D/1996, having the same result.
3. A suit was filed by the petitioner for declaration that alienation of land made by their father Ghulam Mustafa defendant No. 1 (now represented by respondents Nos. 1-A to 1-F), he declared as void as he was not competent to alienate the land which was acquired by him under 'custom' and that the alienations made by him do not affect the reversionary rights of the petitioners-plaintiffs who were the sons of Ghulam Mustafa. The challenge precisely to the alienations was that Ghulam Mustafa the father of the petitioners-plaintiffs was Hindu at the time of partition of the country with the name of Eisar Das who had acquired the agricultural land from his father Jhangi Ram in the year 1928 when Jhangi Rain had died. It was the case of the petitioners-plaintiffs that since the acquisition of agricultural land by Ghulam Mustafa was under the customary law then applicable, the later amendments in the law were not applicable to him. It was averred in the plaint that under the custom applicable, Ghulam Mustafa could not alienate the agricultural land without legal necessity. The further allegation was that he was a "habitual drinker and an extravagent" person who sold out the land to respondents Nos. 6 and 7, (defendants in the suit) for some insignificant consideration. The suit was contested by the vendees defendants that the same was time-barred, and the same was not maintainable. It was their case that after Ghulam Mustafa had become Muslim and Pakistani citizen he was governed by Muslim Laws in the matter of inheritance. The allegation that the alienation was without legal necessity and for inadequate consideration, were also denied.
4. While the suit was pending an application was filed by the contesting vendees-defendants stating that in view of declaration made by the Federal Shariat Court in Muhammad Ishaq Vs. Federation of Pakistan (PLD 1981 FSC 278), the suit could not proceed as the custom allowing challenge by collateral to alienations of property had been declared as repugnant to injunctions of Quran and Sunnah. This judgment was affirmed by Sffariat Appellate Bench of Supreme Court in Federation of Pakistan Vs. Muhammad Ishaq (PLD 1983 SC 273). The application was contested by the petitioners and the learned Civil Judge after hearing the parties dismissed the same on 8.1.1984.
5. Later Ordinance XIII of 1983 was promulgated by the Governor of Punjab introducing Section 2-A in the West Pakistan Muslim Personal Laws (Shariat) Application Act, 1962. The vendees-defendants made another application thereafter for the rejection of the plaint in view of the judgment of Federal Shariat Court and of the Shariat Appellate Bench of the Supreme Court as well as Ordinance XIII of 1983. An issue was framed i.e. Issue No. 9-A for resolving the controversy which on the asking of the vendees-respondents, was treated as a preliminary and after hearing the arguments was decided by the learned Trial Court vide order dated 7.1.1995. He came to the conclusion that Ghulam Mustafa had acquired the agricultural land in the year 1928 on the death of his father, Jhangi Ram who was at that time Hindu and was governed by custom and that Section 2-A of the Ordinance XIII of 1983 was applicable only to those persons who were at the time of acquisition of agricultural land, Muslims. He also noted that previously as well this matter had been dealt with by the learned Trial Court in its order dated 8.1.1984. This order was challenged by respondents-vendees in revision which was dismissed by the learned Addl. District Judge on 19.9.1985, whereafter the respondents-vendees filed a writ petition No. 946 of 1985 before this Court which was however, withdrawn by them on 7.5.1988.
6. On pleadings of the parties the learned Trial Court framed the issues. Both the parties led their evidence in support of their respective pleas. The learned Trial Court after perusal of the evidence so brought on record by the parties dismissed the suit filed by the plaintiffs vide judgment dated 19.3.1989. He took up issue Nos. 12, 13, 14 and 17 together and decided against the petitioners- plaintiffs on his view of the matter that after enforcement of Ordinance XIII of 1983 no Court can pass a decree in favour of the petitioners-plaintiffs as the Courts in Pakistan are obliged to decide the matters in ti : spirit of Islamic Injunctions as declared by Federal Shariat Court and upheld by the Supreme Court. On issue No. 1 he held the suit to he time-barred. On issue No. 8 he recorded the finding that defendants-vendees were bona fide purchasers. On issue No. 9 he found the land in dispute as an ancestral property. On issue No. 10, he recorded his finding that after the Shariat Court's judgment and enforcement of Ordinance XIII, 1983, the custom cannot he pressed into service. On issue No. II he recorded the finding against the petitioners-plaintiffs. Issues Nos. 3, 4 and 16 were decided in the light of his finding on issues Nos. 8, 14 and 17. Issue No. 6, was decided in favour of defendants-vendees and against the plaintiffs that they were estoppel from challenging the alienation. Issue No. 15 was decided .Against the plaintiffs whereas issues Nos. 2, 5 and 7 were not pressed before him by the parties.
7. The judgment of the Trial Court was challenged by the petitioners/plaintiffs in appeal where the learned Appellate Court framed. Additional issues Nos.'10-A, 10-B and 10-C. He remitted the matter to the learned Trial Court for recording of evidence on these issues by the Trial Court and returned its findings on the same. As a result of this, the learned Trial Court vide its judgment dated 13.11.1991.Recorded its findings on the aforesaid issues. Issue No. 10-A was found against the defendants-vendees, that legal necessity was not established hythe defendants-vendees. On issue No. 10-C the finding was recorded in favour of the petitioner-plaintiffs. He was found to be a person of "had character. As having all had habits"..Issue No. 10-B was decided against the defendants.
8. In appeal a learned Addl. Distt. Judge, Multan look the view that Ghulam Mustafa who had embraced Islam at the time of partition was not more governed by customary law and was fully competent to alienate the suit property in any manner he liked as all the alienations of land took place in the year 1960 to 1965 when he had become Muslim and that no decree could he passed in favour of collaterals on the basis of custom in view of Section 2-A of Ordinance XIII of 1983. He also observed that "although the customary laws were repealed by West Pakistan Muslim Personal Laws (Shariat) Application Act, 1962 but the Act did not have the retrospective effect" and that the custom was still a rule of decision to those properties inherited under custom, but as already mentioned after the above-mentioned judgments of Superior Courts of Pakistan, the customary rights of c )Ilateral to challenge the alienation have been abolished with effect from 30.6.1983".
However, he upheld the findings of the learned Trial Court that there was no option except to follow the decision made by the Hon'ble Supreme Court. He further upheld the finding of the learned Trial Court on issue No. I that the sales took place between 1960 and 1967 and the limitation for tiling such a suit was six years whereas the suit was tiled on 26.1.1981 which was apparently time-barred.
He did not believe the birth entry regarding Zulfiqar petitioner-plaintiff, indicating his date of birth as 27.2.1960 for the reasons that the said birth entry Exh.P-8 was recorded on 16.3.1981, after the suit and been tiled observing that the said document was created after tiling of the suit. He thus aftirmed the findings of the learned Trial Court that the suit was time-barred. Dealing with the additional issues No. 10-A it was observed by him that the defendants had failed to prove that the consideration paid by them was the same which was prevalent in the market in those days and accordingly affirmed the finding of the learned Trial Court. The finding on issues Nos. 10-C and 10-B were also affirmed by him and decided against the vendees-defendants. The appeal was however dismissed in view of the findings on other issues. This is revision petition against the aforesaid judgment of the learned Appellate Court and of the learned Trial Court.
9. In support of this petition it is contended by the learned counsel for the petitioners that so far as the effect of the judgment of the Federal Shariat Court in Muhammad Ishaq's case, as also the applicability of Section 2-A of Ordinance XIII, 1983 is concerned the said issue stood finally decided by the learned Trial Court when it recorded its finding on 8.1.1984 and thereafter on 7.1.1985 and this issue could not he re-opened and finding up set by the Trial Court or the Appellate Court. It is submitted that when order dated 7.1.1985 was passed by the learned Trial Court the same was - challenged by respondents-vendees in revision which was dismissed by the revisional Court and writ petition tiled thereagainst was withdrawn from this Court. The contention of the learned counsel is that the finding so recorded by the learned Trial Court although during the pendency of the same suit operated as res judicata and both the Courts i.e. Trial Court as well as the learned Appellate Court have acted illegally in upsetting the same holding that no declaration could be granted by the Court as was prayed for by the petitioners-plaintiffs after the enforcement of Ordinance XIII of 1983. It is further contended that the suit was within limitation and findings recorded by the two Courts below on issue No. 1 are liable to he set aside. It is submitted by him that the two crucial issues i.e. 10-A and 10-C having been decided concurrently by both the Courts below in favour of the plaintiff-petitioners that the sale was not for legal necessity and that Ghulam Mustafa was not a person of good character, the suit is liable to be decreed.
10. As against this learned counsel for vendees-respondents contends that under Section 2-A of the Ordinance XIII, 1983 no decree can be passed challenging the alienation on the ground of custom as the customary law has been done away through the judgment of Federal Shariat Court in Muhammad Ishaq's case and Section 2-A of Ordinance XIII, 1983. It is contended by him that when a person embraces Islam and converts, himself he is bound to follow the Islamic principles of life. He has relied upon Raja Muhammad Akbar Vs. Iftikhar Mani (PLD 1991 S.C. 71) to contend that no decree can be passed on the basis of custom. As to the finding recorded by the learned Trial Court on previous two occasions as to the non-applicability of judgment of Shariat Court in Muhammad Ishaq's case and Section 2-A of the Ordinance XIII of 1983 he contends that there cannot be an estoppal against the law. And that the two Courts below have rightly recorded their findings while disposing of the suit finally. It is contended by him that the suit was clearly time-barred inasmuch as the same was filed on 26.1.1981, for challenging the alienations having taken place during the year 1960 to 1967 and that the findings so recorded by the learned two Courts below are based on proper appreciation of the evidence and the concurrent findings on this issue cannot he upset in revision.
11. The first point is as to whetehr the orders of the learned Trial Court dated 8.1.1984 and 7.1.1985 whereby issue No. 9-A was decided against the respondents/vendees by the Trial Court and was upheld in revision operated as res judicata for the rest of the stages of the same suit. Reference can he made to Maharajadhiraj Sir Rameshwar Singh Bahadur Vs. Hitendra Singh and others (AIR 1924 Privy Council 202) where it was observed that a decision given by a Court on an interlocutory matter, _ (appointment of receiver) operated as a bar to the trial of a second application on the same issue. It was observed that "the binding force of such judgment depends not upon Section 11, CPC but upon general principle of law". In Qurhan Hussain Shah and another Vs. Fazal Shah (AIR 1937 Lahore 393) it was observed that "essence of rule of res judicata is finality. Litigation must come to an end and the -rights of the parties should he settled once for all. If it were to he laid down that a Court can set aside its previous decision merely because they were decided on a wrong view of the law, the practical result would he that the rule of res judicata would lose all its utility and cease to have any effect. There are number of decisions in which it has been laid down that even a wrong decision on the issue of law operates as res judicata, inasmuch as Section 11, CPC makes no distinction between the issue of fact and the issue of law, especially when there is identity of the matter in issue and also of the cause of action". In Mst. Shahzad Bibi and another Vs. Gulzar Khan (PLD 1973 Lahore 878), the principle was highlighted in the following words:- "The principle that a party is not to be vexed twice over for the same cause is acknowledged in Sections 10 and 11 of the Code of Civil Procedure and even where Section 11 does not in terms apply, the general principle of res judicata have always been , invoked by Courts of law to achieve finality in litigation. The principle applies as between two stages in the same litigation. An issue decided in one way at an earlier stage is not allowed to. He re-canvassed at a subsequent stage."
PLD 1986 Karachi 94), relying upon Pandit Kalyan Das Vs. Bahu Kashi Prasad and others (AIR. 1938 Allahahad 113), it was observed that, if a Court having decided a preliminary issue is entitled to reconsider its decision it might go on altering and altering its decision any number of times at the invitation of the parties. In our judgment, once the Court has delivered its judgment upon that issue and has signed its judgment, then as far as the Trial Court is concerned, that issue cannot he re- agitated. If the Trial Court was permitted at a later stage to reconsider findings recorded on issues decided earlier, there would really he no end to litigation. There must he some finality to decisions and in our view having regard to the provisions of the Code which expressly permit the decision 'preliminary points and issues, we must hold that once such issues have been decided they have been decided once and for all as for as the Trial Court is concerned and that such cannot he reconsidered by that Court". The findings thus recorded on the issues were held not open to decision afresh. In Kharati and others Vs. Muhammad Ibrahim and others (1989 CLC 894), it was observed that if a party opts to have a finding before the deicsion of the main suit then the Court normally cannot avoid adjudication of such questions specially when the points raised are purely legal. When such questions are decided by the Trial Court and decision unsuccessfully assailed by the aggrieved party in revision, the same would become res judicata. It was accordingly held that the finding recorded on the issue by the Trial Court were fairly and squarely covered by mischief of res judicata and cannot he re-opened later on.
12. Reference to the aforesaid judgments would clearly show that there is consistency of the view that if a party elects to have a particular issue decided at a preliminary stage and the decision recorded thereon is not set aside by the appellate or revisional Court, the same assumes finality between the parties and cannot he re-agitated for decision afresh in the same suit o the subsequent suit.
13. In Pir Bakhsh Vs. The Chairman, Allotment Committee and others (PLD 1987 SC 145) the rationale, usefulness and applicability of principle of res judicata was examined by their lordships and after considering large number of cases and taxt hooks it was laid down that even if a decision by a Division Bench on a point of law was disapproved by a Full Bench the decision of D.B. Nonetheless is no less .a res judicata although it may have been founded on an erroneous view of law or on a view of law which Full Bench subsequently disapproved. This was laid down by their lordships in the case which had arisen from the order of Rehabilitation Commissioner, which was challenged by the parties in writ petition before the High Court. Some of the parties challenged the judgment of the High Court before the Supreme Court whereas the others did not. The judgment of the High Court was set aside by the Supreme Court and question arose as to what was the effect of reversal of the judgment of the High Court qua those who had not appealed against or challenged the said judgment in Supreme Court. It was held that the matter stood concluded by the judgment of the High Court qua those who had not appealed against the same although the same judgment had been set aside by the Supreme Court at the instance of some other persons.
14. In view of the aforesaid enunciation of law by the High Courts and the Supreme Court, I am of the view that when the issue as to the applicability of Section 2-A of Ordinance XIII of 1983 had been decided the Trial Court twice and was maintained by the revisional Court, the same thereafter became final qua the parties and it was not open to the learned Trial Court to decide the same afresh and return a finding contrary to what had been decided previously. The findings and the view of the learned Trial Court as well as the Appellate Court on the point cannot he upheld.
15. This, however, is not conclusive of the decision of this case inasmuch as the findings recorded by the two Courts below on the issue of limitation are based on correct appreciation of facts and law. Admittedly the transaction of .Sale took place on different dates during the years 1960 to 1967 but were not challenged till 26.1.1981 when the suit was tiled by two of the heirs of Ghulam Mustafa deceased defendant. The same was clearly barred by time as the only explanation for not tiling the suit earlier was that Zulfiqar one of the petitioners-plaintiffs was minor. This however, could not be proved by the petitioners-defendants during the trial by any convincing and cogent evidence that he was horn on 27.2.1960. The only piece of evidence brought on file was Exh.P-8 showing birth entry which was made even after the tiling of the suit. The two Courts below have rightly dis-believed such a document which was of a doubtful nature. Concurrent findings of the two Courts below on this issue do not warrant any interference in revision and thus are upheld.
16. In view of the above, that the findings of the two Courts below on issue No. 1 as to limitation have been upheld by me, this petition is dismissed. No order as to costs.