This revision petition is directed against the judgment dated 9-1-1991 passed by learned Additional District Judge, Rahimyar Khan whereby appeal brought by respondents against the judgment and decree dated 1-7-1989 passed by Civil Judge, Rahimyar Khan was accepted.
2. The brief facts of the case are that respondents filed a suit for declaration against the petitioners to the effect that they were owners of suit-land and that exchange Mutation No.976 dated 21-6-1971 was void and ineffective qua their rights. They also claimed possession. The respondents stated that they alongwith Abdul Rehman's (predecessor-in-interest of plaintiffs Nos.4 to 8) were owners of land measuring 18 Kanals, 5 Marlas. They further stated, that Wahid Bukhsh (predecessor-in- interest of defendants Nos.1 to 6) and defendant No.7, Allah Bukhsh purchased land measuring 11 Kanals from Muhammad Ishaq son of Jan Muhammad vide Mutation No. 946, dated 10-9-1970.
Also that they owned land measuring 4 Kanals before said sale mutation, therefore they became owners of land Measuring 15 Kanals. The plaintiffs asserted that defendants exchanged their land (15 Kanals) with them and received land measuring 18 Kanals 5 Marlas from plaintiffs vide mutation No.976 dated 21-5-1971 and plaintiffs delivered them possession also. Thereafter, Abdul Rasheed (predecessor-in---interest of defendants Nos.8 to 12) filed suit for possession through pre-emption regarding land purchased by defendants vide Mutation No.946, dated 10-9-1970 and the same was decreed in his favour on 30-4-1975 and he obtained possession on the basis of said decree. The plaintiffs alleged that due to said decree land (measuring 11 Kanals) given to them by defendants through aforesaid exchange Mutation No.976, dated 21-5-197-1 was transferred in favour of Abdul Rasheed, therefore, exchange Mutation No.976 was void and ineffective qua their rights and defendants Nos. l to 7 were bound to deliver possession of land (18 Kanals, 5 Marlas) obtained by them (defendants) from plaintiffs on the basis of Mutation No. 976 but they refused to do so, hence they were constrained to file the present suit. The defendants/petitioners appeared before trial Court and filed their written statement. They mentioned that suit was time-barred and that the same was hit by principle of res judicata. The defendants stated that plaintiffs Nos. l to 3 and Abdul Rehman's (predecessor-in-interest of plaintiffs Nos.4 to 8) were party in the pre--emption suit filed by Abdul Rasheed and plaintiffs had admitted the exchange and that in judgment dated 30-4- 1975 it was observed that plaintiffs would be entitled to get the sale price but plaintiffs never challenged the said judgment before any forum and same had attained finality. Also that plaintiffs could get amount on the basis of decree, dated 30-4-1975 and that exchange. Mutation No.976 was not liable to be cancelled. On the pleadings of parties, following issues were framed:-- ISSUES: (1)Are the plaintiffs owners of the property as described in the headnote of the plaint on the basis of averments made therein and form exchange No.976 is illegal and void qua the rights of the plaintiffs'?
(2)If Issue No. l above is proved whether the plaintiffs were dispossessed from the land in dispute within 12 years before the institution of this suit? OPP (3)If Issues Nos. l and 2 above are proved are the plaintiffs entitled to a decree for possession of the land in dispute? OPP (4)Whether the defendants Nos.8 to 12 are unnecessary parties and the plaintiffs have no cause of action against them? OPD (5)Is the suit not maintainable in its present form?
(6) Is the suit barred by time OPD 1 to 7.
(7)Whether the plaintiffs estopped to institute this suit by their words and conduct? OPP (8)Is the suit barred under section 11, C.P.C., is the exchange of suit' property valid and competent as stated in para. 3 of the written statement filed by defendants Nos. l to 7? OPD 9.Relief.
The parties adduced evidence in support of their respective claims. After hearing the parties learned Civil Judge dismissed the suit brought by respondents/plaintiffs vide judgment and decree dated 1-7-1989. The respondents tiled appeal against the said judgment and decree which was accepted by learned Additional District Judge, Rahimyar Khan vide judgment dated 9-1-1991.
Hence this revision petition.
3. I have heard the arguments and perused the record.
4. Learned counsel for the petitioners submits that petitioners had transferred their land in favour of respondents/plaintiffs vide exchange Mutation No.976 dated 21-6-1971 but Abdul Rasheed filed a suit for possession 'through pre-emption regarding land measuring 11 Kanals purchased by them vide Mutation No.946 dated 10-9-1970 which was decreed in his favour vide judgment and decree, dated 30-4-1975. Further submits that plaintiffs/respondents were also party in the said pre- emption suit and learned Civil Judge observed that fact of exchange having been admitted between defendants Nos. 1, 2 (Wahid Bukhsh and Allah Bukhsh) and 4 to 7 (Abdul Rehman's, Qaim Din, Sultan and Muhammad Bukhsh), the decretal amount would, therefore, be entitlement of defendants Nos.4 to 7 (plaintiffs/respondents in this case), who were said to be in possession of the suit-land. He contended that plaintiffs never challenged the said judgment and decree before any Court, hence the same has attained finality, therefore, suit brought by plaintiffs was liable to be dismissed on the principle of res judicata. He has relied upon Mst. Behar Jan Nessa alias Halima Khatun v. Saijuddin Khan and others (PLD 1956 Dacca 1), Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and others (PLD 1987 Supreme Court 145), Muhammad Tufail v. Atta Shabir and 5 others (PLD 1977 Supreme Court 220) and Allah Baksh and 4 others v. Dr. Abdul Waheed and another (PLD 1996 Karachi 458).
5. On the other hand learned counsel for the respondents submits that Abdul Rasheed had filed a suit for pre-emption and plaintiffs had filed a suit for declaration, therefore, in the circumstances of the case principle of res judicata was not applicable in this case and that learned Additional District Judge had rightly accepted the appeal and decreed the suit brought by plaintiffs/respondents.
6. As mentioned above petitioners/ defendants purchased land measuring 11 Kanals vide Mutation No.946 on 10-9-1970 and delivered the possession of the same to respondents/plaintiffs through exchange Mutation No.976, dated 21-5-1971. However Abdul Rasheed son of Jan Muhammad filed a suit for possession through pre-emption against the said sale (dated 10-9-1970). The perusal of record shows that Abdul Rasheed had impleaded the respondents/plaintiffs (Abdul Rehman's, Qaim Din, Sultan and Muhammad Bukhsh) as defendants in his case and judgment was passed in their presence. A Learned Civil Judge observed that "defendants Nos.4 to 7 (Abdul Rehman's, Qaim Din, Sultan and Muhammad Bukhsh, plaintiffs/respondents in this case) would get decretal amount as they were in possession of the suit land". The plaintiffs never challenged the said judgment and decree in appeal or revision which has now attained finality. The plaintiffs remained silent for about 11 years matter the said judgment and they filed present suit on 2-11-1986 which shows that they admitted said judgment to be correct. In these circumstances I find that they could not file this suit.
The suit brought by the respondents/plaintiffs was hit by principle of res judicata. As such appeal brought by them was liable to be dismissed.
7. For what has been discussed above I am of the considered opinion that judgment passed by learned Additional District Judge is not sustainable in the eyes of law and the same is liable to be set aside. As such this revision petition is accepted, impugned judgment is set aside and suit brought by plaintiffs/respondents is accordingly dismissed. No order as to costs.