MUNIR A. SHEIKH, J.---This appeal is directed against the judgment dated 21-9-1994 of the Lahore High Court whereby revision petition filed by the respondents against the judgments and decrees of both the Courts below has been accepted.
2. The dispute relates to land measuring 1497 Kanals, 2 Marlas situated in village Raja, Tehsil and District Gujranwala which was originally owned by Nawab deceased. On the death of Nawab on 10- 4-1917, Mutation No,44 was attested on 26-6-1917 mutating the said land in favour of his widow Mst.
Rabia Bibi as limited owner which was produced in evidence as Exh.P.22. Mst. Rabia Bibi it appears in the first instance mortgaged the land in favour of Qasim and later on gifted the same to Muhammad Abdullah and Nasrullah, appellants Nos. 1 and 2. The respondents in this appeal challenged these alienations by filing two suits praying for a declaration that the same would not be effective against their rights being reversioners of Nawab. The suit was decreed through judgments dated 6-10-1954 and 5-3-1955, respectively. On the promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the life estate held by Mst. Rabia Bibi stood terminated by operation of section 3 thereof. As a consequence of this on 19-2-1974, the respondents-plaintiffs filed the instant suit from which this appeal has arisen claiming possession of 3/4th share in the land in dispute as heirs of Nawab to the exclusion of the present appellants being its lawful owners. In the written statement, the appellants disputed the claim of the respondents. An objection was also raised that the suit was barred by time.
3. The trial Court on 15-3-1978 dismissed the suit as barred by time. The respondents feeling aggrieved filed appeal which was dismissed by the Appellate Court on 18-12-1978. Revision petition filed by them before the Lahore High Court (C.R. No,189-D of 1979) was accepted by the said Court through judgment dated 1-11-1989 wherein it was held that the suit filed by the respondents was within time. As no decision had been given by the trial Court on the remaining issues on merits, therefore, the case was remanded to the trial Court for decision of the suit on merits. This judgment of the High Court was assailed before this Court by filing petition for leave to appeal which was dismissed through judgment dated 26-8-1991.
4. In the post remand proceedings, the trial Court through judgment dated 19-2-1992 held that both the appellants and respondents being heirs of Sardara and Sahibzada brothers of Nawab were entitled to inherit the property of Nawab in equal shares, therefore, the claim of the respondents to possession of the land to the extent of 3/4th share was not accepted and the suit decreed to the extent of 3/8th share as the heirs of both Sardara and Sahibzada were held to have inherited the land in equal shares. It was held that both Sardara and Sahibzada, predecessors-in- interest of the parties i,e,, the brothers of Nawab had died at the time of death of Nawab.
5. The respondents feeling aggrieved filed appeal before the Additional District Judge which was dismissed through judgment dated 1-12-1992. -Application made by the respondents for permission to produce additional evidence was also dismissed. In the revision petition filed by them, their request for allowing them to produce additional evidence was allowed and after recording additional evidence and the evidence in rebuttal of the appellants, the said revision petition was accepted through the impugned judgment dated 21-9-1994 and the suit of the respondents was decreed as prayed for i,e, the possession of the land to the extent of 3/4th share to the exclusion of the appellants after holding that Sardara brother of Nawab was alive when Nawab died whereas Sahibzada his other brother predecessor-in-interest of the respondents had died, therefore, neither he nor his heirs i,e, the present appellants could inherit the land in dispute as heirs of Nawab in the presence of Sardara and his heirs. This appeal is directed against the said judgment.
6. The dispute in the suit for the decision of the Courts was limited only to the question whether Sardara brother of Nawab deceased predecessor-in-interest of the respondents was alive at the time of death of Nawab as there was no dispute about , the death of Sahibzada the other brother of Nawab, predecessor-in-interest of the appellants during the lifetime of Nawab. The findings of the trial Court and the First Appellate Court that both the parties were entitled to inherit the land of Nawab in dispute in equal shares were based on the assumption that both Sardara and Sahibzada predeccessors-in-interest of the parties were dead at the time of death of Nawab.
7. These findings were based on the findings recorded in the said two previous suits filed by the respondents in relation to mortgage of the property by Rabia and gifting the same to appellants Nos. 1 and 2 in which it was held that both Sardara and Sahibzada had, predeceased Nawab. The documentary evidence produced by the respondents in the present suit i,e,, certified copy of the death entry of Sardara was excluded from consideration on the technical ground that the same did not bear the signatures of the District Health Officer. The learned Judge in Chamber of the High Court in order to do complete justice and decide the controversy between the parties finally and effectively allowed the request of the respondents for production of additional evidence in order to prove that the certified copy of death entry of Sardara did bear the signatures of Health Officer.
After examining the evidence already produced by the parties, the record of the previous suits in which the said finding was recorded that both Sardara and Sahibzada had predeceased Nawab and the document on the basis of which the same was based, the learned Judge of the High Court came to the conclusion that it was established on the record that on the death of Nawab on 10-4- 1917,, only Sardara his brother was alive who died on 6-11-1918, therefore, the respondents being his heirs were entitled to inherit 3/4th share and were also entitled to its possession to the exclusion of the appellants. Through judgment dated 21-9-1994 impugned in this appeal, the revision petition was accepted. As to the finding recorded in the previous suits in the judgment dated 6-10-1954 that both Sardara and Sahibzada predecessors-in-interest of the parties had predeceased Nawab it was held that the same did not operate as res judicata qua the present suit, for the judgment in the said suit being in favour of the respondents-plaintiffs, therefore, any finding recorded against them in the said judgment in respect of any matter or question could not be challenged by them, as such, could not be construed to have operated as res judicata. It was also held that the document Exh.P1 produced in the said suit a copy of death certificate of Sahibzada son of Jhanda was made the basis for recording the said finding which was not relevant as the same did not relate to Nawab deceased.
8. Learned counsel for the appellants frankly conceded that he did not want to challenge' the correctness of the findings of the High Court in the impugned judgment that Sardara died on 6-11- 1918 and there being no dispute that Sahibzada, predecessors-in-interest of the appellants had died earlier to the death of Nawab, deceased, therefore, the only heirs of Nawab were the respondents i,e,, the successors-in-interest of Sardara as Sardara being the only heir of Nawab at the time of his (Nawab) death was entitled to inherit his land to the exclusion of Sahibzada and the appellants. He did not argue that the said finding should be set aside and the appeal accepted on that ground. He submitted that the application (C.M.A. No,1086 of 1998) made by the appellants for consideration of Mutations Nos.28, 38, 59 and 230 as part of the evidence may be accepted as he wants to establish through these mutations that Nawab was owner in his own right of the land measuring 459 Kanals only out of the land in dispute which was inherited by Mst. Rabia Bibi his widow as limited owner, therefore, that much land was to be inherited by the heirs of Nawab i,e, the last male owner whereas in relation to the remaining land, last male owners would be deemed to be Bulanda, Umar and Fazal Din from whom Mst. Rabia Bibi shall be deemed to have inherited the same as limited owner.
9. This application has been contested by the respondents, inter alia, on the ground that no such plea was ever raised at any stage of the proceedings up to the making of the said application before any Court, therefore, such a plea of pure fact cannot be allowed to be raised at this stage muchless grant of permission to allow production of documentary evidence in support thereof. It was maintained on behalf of the respondents that permission of production of additional evidence in the form of documents under Article 187 of the Constitution of Islamic Republic of Pakistan, 1973 could not be granted on a plea which was never subject-matter of the trial having not been raised in the pleadings.
10. Through the said application, the appellants want indirectly to raise a dispute about the ownership of Nawab deceased qua the land in excess of 459 Kanals out of the land in dispute for the first time before this Court that too after about four years of the filing of the appeal which is 'absolutely a new plea. The land which was subject-matter of the suit is the land covered by Mutation No,44 sanctioned on 26-6-1917 of which Nawab deceased was the owner which is now measuring 1497 Kanals, 2 Marlas. Mst. Rabia Bibi his widow through the said mutation had acquired limited interest qua the said entire land as his widow. Since 1917 the year of sanction of this mutation treating Nawab as owner of the entire land and Mst. Rabia Bibi as limited owner thereof as widow of Nawab, no dispute was ever raised about the title of Nawab to the land in excess of 459 Kanals or that the remaining land was acquired by Mst. Rabia Bibi as limited owner not from Nawab but from Bulanda, Umar and Fazal Din. In the suit, the entire land measuring 1497 Kanals, 2 Marlas was made the subject-matter and it was pleaded with clear terms that it was owned by Nawab and inherited by Mst. Rabia Bibi his widow as limited owner the correctness of which was not disputed. The only dispute raised was that both the heirs of Sardara and Sahibzada i.e, the respondents and appellants respectively were entitled to inherit the same as per findings recorded by the Courts in the abovementioned two previous suits filed when the land was mortgaged and gifted in which it was held that both Sardara and Sahibzada, predecessors-in-interest of the parties had died before the death of Nawab and not that Nawab was not the owner of the land in excess of 459 Kanals as is being claimed now through this miscellaneous application. This appeal was filed as far back as in 1994 and the application was made about four years thereafter on 16-11- 1998. The suit was, as observed above, filed on 14-2-1974 and in the previous round of litigation, the same came up up to the level of this Court and even after remand, no plea was ever raised. Even in this application, no prayer has been made to raise such a plea through amendment in the pleadings which even if prayed for was liable to be rejected. The plea disputing the ownership rights of Nawab qua the land in excess of 459 Kanals out of the land in dispute apart from being barred by time appears to be an afterthought and has been raised merely for the sake of creating complications otherwise it had been accepted by the appellants since 1917 when the said mutation Exh.P.22 was sanctioned that Nawab was owner of the entire land. At this stage, we are not inclined to allow the appellants to alter their stand and raise dispute about the ownership rights of Nawab qua the entire land subject-matter of the suit by making miscellaneous application for considering documents i,e,, Mutations Nos. 28, 38, 59 and 230 which are not relevant for the purpose of decision of this appeal.
11. Learned counsel for the appellants did not argue that the finding of the learned Judge of the High Court in the impugned judgment that the decision in the previous suits that both Sardara and Sahibzada, predecessors-in-interest of the parties herein had died before the death of Nawab deceased did not operate as res judicata for the reason that the judgment and decree having been passed in favour of the plaintiffs in the said suit i,e, the respondents, they could not agitate the matter any further about this finding was legally incorrect. He conceded that these findings do not suffer from any illegality.
12. In view of the above, the application (C.M.A. No,1086 of 1998) is hereby rejected.
13. Learned counsel for the appellants attempted to argue that the land in dispute was 1435 Kanals, 5 Marlas and not 1497 Kanals, 2 Marlas. We have gone through the plaint in which it has been clarified that while making adjustment in the consolidation operation, in lieu of the land owned by Nawab, land measuring 1497 Kanals, 2 Marlas was given to Nawab the correctness of which was not specifically and expressly denied, therefore, no dispute or confusion can be raised in this respect.
14. For the foregoing reasons, this appeal has no merits which is hereby dismissed leaving the parties to bear their own costs.