' A declaratory suit instituted by the successors in interest of Khushi Muhammad, the respondents herein was contested by the petitioner, which was dismissed vide judgment dated 30-1-1996 by the trial Court, whereagainst the appeal of the respondents/plaintiffs succeeded before the First Appellate Court. The judgment of the learned Additional District Judge dated 26-2-1998 rendered in that appeal has been assailed through this revision petition.
2. It is contended by the learned counsel for the petitioner that the respondents/plaintiffs had not succeeded in proving the sale made by the petitioner in favour of Khushi Muhammad their predecessor. It is contended that the suit instituted on 19-12-1991 was clearly time-barred and that even the principle of res judicata was applicable because Khusi Muhammad was party in the previous litigation who did not agitate the matter after the judgment of the Appellate Court dated 13-11-1977 in the said litigation. It is further contended that the Appellate Court has illegally applied section 18 of Specific Relief Act, 1877, which was not attracted to the instant case. Reference has been made to Mst. Hussain Jan and 5 others v. Mst. Channo Bi 1990 CLC 1591; Manzoor Ahmed v.
Haji Hashmat Ali through legal heirs 2000 CLC 419; Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCM R 1245; Muhammad Arshad and another v. Mst. Firdausia Begum and 4 others 1994 CLC 1967 and Zaighum Salim Khan v. Muhammad Salim Khan and another 1992 M LD 1338. On the other hand the learned counsel for the respondents supports the judgment of the learned Additional District Judge and has pointed out that in the previous litigation there was admission by the petitioner about the sale from which she could not resile and that neither the suit was time-barred nor the principle of res judicata was applicable in the peculiar facts and circumstances of the case. Reference has been made by him to Ziauddin Rafi v. Muhammad Khan and others PLD 1962 (W.P.) Lahore 321 and S. Sibtain Fazli v. (1) Star Film Distributors and (2)
Muhammad Ali Khan PLD 1964 SC 337.
3. The material on the record has been considered with the assistance of the learned counsel for the parties. One Fateh Muhammad owned 63 Kanals 16 Marlas land in Chak No,41 J.B., Tehsil and District Lyallpur (Faisalabad). He died in July, 1967. Mutations of inheritance were sanctioned in favour of Mst. Mussarat Bibi the petitioner as his daughter of the entire estate taking the deceased to be "Shia" by faith. Having lost up to the Commissioner, Sargodha Division on 18-11-1967, Mehndi Khan, Mubarik Ali and Mst. 'Mukhtaran Bibi, filed a suit on 7-12-1967 for the declaration that they were the only heirs of the deceased, the later not a "Shia" nor the petitioner his daughter, and for setting aside the orders of the revenue authorities and sale of part of the land by the petitioner in favour of Khushi Muhammad. After the trial, the learned Civil Judge decreed the suit holding the plaintiffs/respondents to be the collaterals of the deceased, the later not a "Shia" and the defendant/petitioner not the daughter of the deceased Fateh Muhammad. However, it was made clear that this decree shall not affect the rights with regard to the title of Khushi Muhammad on the suit property purchased by him vide sale-deed. This was vide judgment and decree of the learned Civil Judge, III Class and Family Court, Lyallpur (Faisalabad) dated 17-2-1976. The plaintiffs/respondents therein, filed an appeal against the latter portion of the decree by which the sale in favour of Khushi Muhammad was upheld. The petitioner and Khushi Muhammad also filed an appeal against the judgment and decree of the learned trial Court. Both these appeals were taken up by the learned Additional District Judge, Faisalabad who allowed the collateral's appeal and set aside the sale in favour of Khushi Muhammad the purchase being not without notice and decreed the suit in toto. The appeal of the petitioner and Khushi Muhammad was dismissed upholding the adverse findings that the deceased was not a 'Shia" but "Sunni" and that the petitioner was not the daughter of the deceased Fateh Muhammad. This was viding judgment and decree dated 13-11-1977. The petitioner filed Regular Second Appeal No,854 of 1 )77 in the Lahore High Court which was dismissed by a learned Judger: vide judgment and decree dated 25-3-1984.
However, C.A. No,389 of 1988 filed by her was accepted by the Hon'ble Supreme Court on 18-8-1991 setting aside the finding that the petitioner was not daughter of deceased Fateh Muhammad.
Since it was found that she was "Sunni", it was held that she will be entitled to her half share in the estate of Fateh Muhammad deceased. The suit, which has given rise to the present litigation was instituted by the respondents on 19-12-1991 on the basis of the above judgment that they were owners vide sale-deed dated 3-11-1967 covering land measuring 17 Kanals, 9 Marlas. The suit was contested, issues were framed, evidence was led by the parties, whereafter, as observed above, the same was dismissed by the learned Civil Judge, Faisalabad on 30-1-1996, who took the view that the suit was time-barred and that the principle of res judicata in view of the previous litigation was attracted. In appeal the learned Additional District Judge, Faisalabad, however, took a different view of the matter and reversed the findings of the trial Court.
4. Although in the written statement filed by the petitioner the factum of sale was sought to be denied by her, yet such a stance and lame plea was an afterthought inasmuch as in the written statement, which she filed jointly with Khushi Muhammad deceased, in the earlier round of litigation, the factum of sale was admitted in paragraph 11 thereof. The filing of such written statement had not been disputed. Moreover, she had appeared as D.W.8 in the said suit and made a statement on 8-4-1974 admitting the factum of sale for a consideration of Rs,8,000. She was of the age of 27 years at that time and mature enough to understand the implications of such a statement. Besides that there was no denial about sale by her throughout that litigation which ended with the judgment of Hon'ble Supreme Court. There is thus no difficulty in arriving at a conclusion that the sale was indeed made by the petitioner in favour of Khushi Muhammad deceased, the predecessor-in-interest of the respondents.
5. Another important aspect of that litigation was that the petitioner and Khushi Muhammad both had been jointly contesting the suit filed by the collaterals. Although their appeal was dismissed by the learned Additional District Judge on 13-11-1977 and that of the collaterals was accepted, yet the Appellate Court had left an option and choice for Khushi Muhammad with reference to the recitals in the sale-deed, which provided sufficient safeguard to Khushi Muhammad in order to protect his rights, It was in that context that the litigation was continued by filing appeals thenceforth by the petitioner only. She ultimately succeeded in establishing her right to half of the land before the Hon'ble Supreme Court of Pakistan, which judgment was rendered on 18-8-1991 and the present suit was instituted by the respondents on 19-12-1991. Such a suit could not be regarded as time- barred. Thus the view taken by the learned trial Court was erroneous, which was rightly reversed by the First Appellate Court.
6. There is no denial of the fact that Khushi Muhammad did not appeal against the judgment of the learned Additional District Judge dated 13-11-1977 but the reason for the same was quite obvious and understandable as his rights stood duly protected by the same judgment. He could, therefore, wait for the time and opportunity so that the petitioner could establish her right in property. With the reversal of adverse findings and acceptance of appeal by the Hon'ble Supreme Court on 18-8- 1991 the respondents were well within their right to sue for the recognition and perfection of their right and title on the basis of saledeed.Dated 3-11-1967. The principle of res judicata, therefore, could not be applied to them. I am unable to countenance the contention of the learned counsel for the petitioner that the respondents should have been non-suited and they were required to prove the factum of sale overagain. They could not be denuded of their rights as the sale-deed dated 3-11-1967 had been admitted by the petitioner in earlier round of litigation. The precedents cited by the learned counsel do not apply to the case in hand. The learned Appellate Court has on correct appreciation of the evidence and analysis of the matter proceeded to decree the suit filed by the respondents, which judgment does not warrant any interference by this Court in revisional jurisdiction.
' As a consequence of the above, this petition is dismissed. No I D Order as to costs.