This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The prayer made therein (amended petition) in the context of the controversy is as follows:- "In view of the foregoing submissions, it is respectfully prayed that Mutation No,1999 entered on 6-1- 1971 and the order of 1960 of respondent No,I on the basis of which this mutation was effected whereby the disputed land was transferred to respondent No,1 and treating the land as evacuee property and that the allotment of the disputed land to respondents Nos,2 and 5 to 7 and the subsequent sale of the land by respondent. No,2 of his share to respondent No,3 and .4 be declared as illegal, void, unlawful, without lawful authority and of no legal effect."
The substratum of the dispute lies in an earlier round of litigation, reference to which, may be appropriate.
2. Qaim and Umar stated to be predecessor-in-interest of the petitioners, had mortgaged the land in dispute in favour of Megh Raj in the year, 1890. In the year, 1972, the petitioners herein brought a declaratory suit before the Civil Court, Sargodha that they were owners in possession of the suit property which was not evacuee and the order declaring the same as evacuee and transferring it in favour of the defendant and further disposition by him was illegal, ineffective and inoperative.
They also sought a permanent injunction. The suit was contested, inter alia, that the same was not maintainable and the Court had no jurisdiction to try the suit. The learned Senior Civil Judge, Sargodha dismissed the suit vide judgment dated 2-2-1977 that the Court had no jurisdiction to try the same. The appeal filed by the petitioners there against was dismissed by the learned District Judge, Sargodha on 20-9-1978. R.S.A. No,97 of 1979 was filed by them which was, dismissed by this Court on 6-2-1979. The present writ petition was filed thereafter on 9-5-1979.
3. It is contended by the learned counsel for the petitioners that the land was illegally treated as evacuee property which could not be allotted inasmuch as the original mortgagee had further mortgaged the land and got it redeemed from the sub-mortgagee on 19-5-1936, Fresh period of limitation would commence from that date in view of section 19 of the Limitation Act. It is contended that the dismissal of the suit and R.S.A. No,97 of 1979 by this Court would not stand in the way of the petitioner in seeking declaration as to the nature of the land in dispute. Reference has been made to Muhammad Khan and others v. The Chief Settlement & Rehabilitation Commissioner, West Pakistan (PLD 1962 S.C. 284), Allah Baldish and others v. Muhammad Shafi and another (1989 SCM R 780) and Isab Khan and another v. Muhammad Sher and 2 others (PLD 1975 Lahore 833). It is contended by the learned counsel for the contesting respondents and for the Settlement Department that after the dismissal of suit and R.S.A. the writ petition is not maintainable. It is contended that the land which was treated as evacuee was dealt with as such and allotted under the law,. it cannot be declared as non-evacuee in writ jurisdiction as none of those orders of statutory functionaries were challenged by the petitioners in time and the petition suffers from laches even Reference has been made to Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others (PLD 1991 S.C. ' 524) and Din Muhammad and 5 others v. Ghulam Wahid and 3 others (1995 SCM R 675).
4. During the course of hearing of this petition order dated 28-7-1992 came to my notice which reads as follows:- "Syed Faiz-ul-HassanNaqvi, Advocate for the petitioner.
Nemo for the respondents.
During the hearing of the arguments learned counsel for the petitioner submitted that in the previous litigation before the Civil Court which came before this Court in R.S.A 97 of 1979 in which it was held that by the time the impugned notification treating the land in dispute as evacuee land was issued the right of the petitioner to' redeem the same as mortgagor had already become barred by time on account of lapse of 60 years whereas after the judgment was passed in the said R.S.A. by this Court he had come to know that there were subsequent mortgages by the mortgagee which amounted to acknowledgement within the contemplation of section 19 of the Limitation Act and if the benefit of the said section is granted to the petitioner the right to redeem had not become barred by time but it still subsists upto 1966. He says that this piece of evidence was not available to the petitioner nor he was in the knowledge of the same.
Learned counsel for the petitioner seeks adjournment to make an application for treating this writ petition as review application under Order 47 C.P.C. in R.S.A. No,97 of 1979. Adjourned. The petitioner may make application which shall be disposed of in accordance with law."
When the attention of the learned counsel for the petitioners was drawn to the same as to whether the petitioners had taken any step, Mr. Faiz-ul-Hassan Naqvi, Advocate stated that an application was filed but the same was not traceable. Both the learned counsel for the petitioners, however submitted that notwithstanding the above mentioned order they would like the present writ petition to be heard and decided as it is.
5. The main thrust of the contention of the learned counsel is that the subsequent mortgage made by Megh Raj and its redemption by him in the year, 1936 was a fact that amounted to acknowledgement within the contemplation of section 19 of the Limitation Act, came to their knowledge after the dismissal of the R.S.A. it would not only enlarge the period of limitation but also entitle, them to file the writ petition. In order to Judge the verity and substance of the plea, I have gone through the judgments rendered by the trial Court, the learned District Judge and this Court in the abovementioned R.S.A. Before the learned trial Court, the case pleaded by the petitioners was that the mortgage had been redeemed but despite the same the land was illegally treated as evacuee. In view of this stance, the learned trial Judge dealt with the matter as follows:- " From this it transpires that the main stay of the' plaintiffs is the redemption of mortgage. If ' the mortgage of the suit-land had been redeemed certainly the same could not be declared or treated as evacuee. However, it was for the plaintiffs to have proved the act of redemption. But a cursory glance at their evidence is ample to reveal their miserable failure to effect. None of the plaintiffs has appeared as a witness so as to say that as to when and how the mortgage of suit- land was redeemed. All that they have produced is the extract of revenue record which consistently indicate that suit land continued to be mortgaged with the evacuees."
It was further observed that "the land in question due to plaintiffs' failure to get the mortgage redeemed within the stipulated limitation was treated evacuee and on this score was transferred to the defendant No,2. Such an order had been passed by the Rehabilitation Authorities so Civil Court cannot try any suit with regard to such an order." It thus shows that the case of the plaintiffs before the Civil Court was that they had got the mortgage redeemed but the same was illegally allotted treating it evacuee property. Before the learned District Judge in appeal their plea was that the land had been redeemed and was wrongly treated evacuee. This plea was, however, found to be incorrect in view of the entries in the Revenue Record. In the memorandum of appeal. submitted before this Court i,e, R.S.A. No,97 of 1979 they tried to build and set up a totally different case that Megh Raj had on 19-51936 sold. his mortgage rights in favour of Amolakh Ram etc. which constituted an acknowledgment. This was an attempt to invoke S. 19 of the Limitation Act. Their appeal, however, was dismissed by this Court by taking the view that " While dealing with the land in dispute, the Settlement Authorities treated the same as evacuee property. According to. them, the appellants had lost their equity of redemption because they had not redeemed the mortgage within sixty years. It is not disputed that the mortgage was not redeemed within 60 years of its creation. If the appellants felt aggrieved by the decision of the Settlement Authorities they should have _challenged it before the superior authorities on the Settlement side or before the Custodian, Evacuee Property, but they did not do so in good time. Thus the aforesaid decision of the Settlement Authorities had attained finality by the time they went before the civil Court. The two Courts below were, therefore, justified in not assuming Jurisdiction 'which was barred by the provisions of sections 22 and 25 of the Displaced Persons (Land Settlement) Act, 1958." The plea of the petitioners up to the first appellate stage was that they had got the mortgage redeemed and property had wrongly and illegally been treated as evacuee, whereas, 'before this Court in R.S.A. they took a totally inconsistent plea that they were entitled to have the benefit of section 19 of the Limitation Act, 1908. Such inconsistent position by a party before the Courts is neither permissible nor can be countenanced. The principle has been stated and summed up in Principles and Digest of the Qanoon-e-Shahadat by Justice Khalil-ur-Rehman at page 1405, Vo1.11 as follows:-- " It may be laid down as a broad proposition that one who, without mistake induced by the opposite party, has taken a particular position deliberately in the course of a litigation must act consistently with it; one cannot play fast and loose. It is a , well-settled principle that a party, litigant cannot be permitted to assume inconsistent position 'a Court, to play fast and loose, to blow hot and cold, to approbate and reprobate, to the detriment of his opponent; and this wholesome doctrine applies not only to the successive stages of the same suit, but also to a suit other than the one in which the position was taken up, provided that second suit grows out of the judgment in the first suit. A litigant who has all along maintained a position in support of one branch of his suit cannot be permitted, when he fails upon that branch, to withdraw from the position and assert the contrary, more especially when he thereby places his opponent at a great disadvantage."
In a writ jurisdiction especially the conduct of the petitioner assumes vital relevance andimportance. It cannot be invoked by such a party having such a conduct.
6. There is another hurdle in the way of the petitioners that is that they failed to avail, the statutory remedies and resorted to civil litigation when the. relevant Settlement laws were yet in the field and. had not been repealed. As mentioned above, they failed and lost the civil litigation up to this Court with the dismissal of their second appeal. Section 11 of C.P.C. though may not be strictly attracted, yet the principle underlying would apply. In the context, the principle laid down and deducible from Abdul Majid and others v. Abdul Ghafoor Khan and others (PLD 1982 S.C. 146) gets attracted. That was a case in which after a round of litigation had concluded up to the High Court, a fresh round of litigation was started by asserting that new material had been discovered after the decision of the High Court. It was observed by their lordships that " even if the provisions of section 11 C.P.C. do not apply in terms, in such like cases, the general principle of resjudicata would apply. It was observed with reference to Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore (PLD 1966 S.C. 1) that " if the arguments advanced before the learned Single Judge in the High Court would have prevailed it would have resulted in the criticism of a Division Bench judgment of the same Court, which decided the Letter Patent Appeal in an earlier round of litigation. Such a course it is obvious might lead to if not, entirely illegal at least undesirable consequences.' As mentioned above, the ground of attack advanced in the writ petition is the discovery of new facts as to the transactions by the first mortgagee qua the mortgaged land. The same were pleaded in the R.S.A. and would be deemed to have been rejected. In Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and others (PLD 1987 SC 145), it was held that " any matter which might and ought to have been made ground of defence or attack in such former suit, shall be deemed to have been a matter directly and subsequently in issue in such suit. " Referring to explanation IV to section 11 C.P.C., it was observed that " the same is based on the principle that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided." With the dismissal of the R.S.A., filed by the petitioners, the controversy indeed stood concluded as the said judgment was not challenged in any proceedings competent in law under the Civil Procedure Code or petition before the Supreme Court of Pakistan under the Constitution. Considering the case from all these angles, I am lead to the conclusion that the writ petition which indeed has the effect of eroding the finality of the judgment of this Court in R.S.A. No,97 of 1979 is misconceived, and should meet its fate of dismissal.
7. There is yet another aspect of the matter. As pleaded the land became part of the compensation pool in 1960. It was proposed and confirmed in favour of respondent No,2 and was thus sold by him. The petitioners did not take any step by appropriate proceedings before the custodian authorities or the Settlement/Rehabilitation Authorities under the then prevailing laws.
Their challenge elsewhere before the Civil Court or before this Court even is of no use rather was off the point in view of Sardar and others v. Shaukat Ali and others (1990 SCM R 951). That was a case where a Shamlat Deh land was treated as evacuee and allotted which action was challenged before the civil Court in which the petitioners failed upto the Supreme Court of Pakistan and it was observed as follows:- " It has been found that the property was allotted as evacuee and possession delivered to the allottee. The allotment was never challenged. Any person claiming an interest was required to apply to the Custodian Authority for a declaration in his favour. It was never done. The suit in the circumstances was rightly dismissed."
The principle as stated is fully attracted to the case of the petitioners.
8. In any case the plea of acknowledgement sought to be adumbrated with reference to section 19.of the Limitation Act. does not advance the case of the petitioners, in view of Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others (PLD 1991 S.C. 524),. Such a plea was to be proved as a fact. Mere entry of mutation would not ipso facto amount to acknowledgement. S.19 of the said Act, therefore, is not attracted either to the circumstances of the case.
The, petition is accordingly dismissed. No order as to costs.