This appeal arises out of the judgment and decree of learned District Judge, Jhelum, dated 8-9- 1975 whereby he maintained the judgment of learned Civil Judge, Pind Dadankhan, dated 2-11-1974.
2. Brief facts of the case are that respondents filed a suit against Mst. Karam Bibi and Raj Bibi appellants as well as Mst. Suban etc. Pro forma defendants for declaration to the effect that the decree, dated 9-3-1967 on the basis of a compromise in Civil Suit No.13 of 1966 entitled "Mst. Suban Bi etc. v. Mst. Sharaf Bi etc." between the parties was illegal, void, and ineffective against his rights as the parties to that agreement or compromise to the decree were labouring under misapprehension of a fact necessary for the compromise. The case was that in Civil Suit No. 13 of 1966 (Mst. Suban Bi etc. v. Mst. Sharaf Bi etc.) the dispute was about the estate left by Sher Muhammad son of Allah Dad. It was contended in the .Plaint that Muhammad Sher was owner of 245 Kanals, 13 Marlas of land which his widow Mst. Sharaf Bi was holding as limited owner. The agreement between the parties to wthat suit arrived at was that defendants Nos. 1 to 8 of that suit be given the Muslim Law share of the estate left by Muhammad Sher. Accordingly they were granted 25/288 share of 245 Kanals, 13 Marlas of land. Later on when the title documents were checked up including Mutation No. 1160, dated 28-6-1953 it was found that Muhammad Sher was owner of, 81 Kanals and 18 Marlas of land which his widow Mst. Sharaf Bi was holding as limited owner and with respect to that share only the compromise was effective but now with respect to the whole of the land which even did not belong to Muhammad Sher of for that matter his widow Mst. Sharaf Bi stood included in the decree. Later on there was a review 'petition by plaintiffs in which some of the defendants admitted this position but their review petition was dismissed finally on technical ground and petitioners therein were advised to file a regular suit which necessitated the institution of the instant suit. The suit was contested by the appellants who pleaded that the parties were not under any mistake as to the estate held by Muhammad Sher and that they were bound by the decree which had been passed on the basis of compromise. The other averments were denied. Ultimately the learned Civil Judge after framing issues on the pleadings of the parties, recorded their evidence and hearing their learned counsel, decreed the suit as prayed for holding that the plaintiffs alongwith defendants are in joint possession of the land measuring 245 Kanals, 13 Marlas including the land left by Muhammad Sher deceased and the compromise decree was set aside against which appeal of the appellants failed through impugned judgment, hence the present second appeal.
3. Learned counsel for the appellants contends that review application of the respondents was dismissed, trial Court was not justified in decreeing the suit and setting side the compromise decree. He further stated that the lower Courts misread the evidence on record in decreeing the suit.
4. Learned counsel for the respondents has supported the impugned judgment.
5. Heard. Record perused. The consent decree was obtained on 9-3-1967 against which a review petition was instituted on 4-4-1967. The defendants conceded the claim of the plaintiffs on the ground that the suit related to the share of Muhammad Sher only to the extent of 81 Kanals, 18 Marlas of land over which Mst. Sharaf Bi was in possession as limited owner and that they had to get 25/288 share out of that land. The review petition was dismissed on 27-7-1970 on technical ground that it was clear therein that said order shall not affect the rights of the plaintiffs to file a regular suit. The dismissal of the review application was, therefore, no bar to the fresh suit.
6. The suit was instituted assailing the judgment and decree, dated 9-3-1967 on the ground that the parties in that suit were under a bona fide mistake as to the actual property left by Muhammad Sher deceased over which Mst. Sharafa Bi, his widow was in possession as a limited owner. Said agreement on the basis of which the decree was passed is void as both the parties were under mistake as to a matter of fact essential to the agreement .Especially in view of the fact that defendants had admitted in the reply of the review petition that Muhammad Sher deceased left only 81 Kanals 18 Marlas of land. During trial it was established that the aforesaid decree was void ab initio, therefore, was declared ineffective and inoperative against the rights of the plaintiffs. Tile findings of the trial court were concurred by the learned District Judge. It is evident from the record that the contesting parties to the suit were labouring under mistake of fact as to the actual estate holding of Muhammad Sher husband. Of Mst. Sharaf Bi and the compromise arrived at was only with respect to the estate of Muhammad Sher and the actual estate held by Muhammad Sher was 1/3 of 245 Kanals, 13 Marlas i.e. 81 Kanals, 18 Marlas, so previous decree would be binding upon the parties with respect to this share only. The remaining share remained unaffected by the compromise decree. Learned District Judge has given sound reasons in agreeing with the judgment of the trial Court. Concurrent findings of facts recorded by both the Courts below are perfectly in accordance with the evidence on record and warrant no interference. The appeal has - no merit and is dismissed with no order as to costs.