Jan Wali Vs Hashmant Bibi & others

a

PESHAWAR HIGH COURT, PESIIAUTAR

(Judicial Department) C.R.No. 11O3-P 12or24 JanWali v.

Hashmat Bibi & Others

For petitionerlsl: Mr. Maiid Karim, Advocate Nemo for the respondents Date of hearing: L2.05.2025.

JUDGMENT

Dr. Khurshid lqbal, J.-

1.The petitioner claims that Mst. Hashmata (the respondent #1) was not the daughter of Mst. Mairaja, the second wife of Abdul Hamid, his maternal grandfather. On the strength of this stance, he claims his share in the legacy of his mother Mst. Haya Jan, daughter of Mst. Dawa Jan, the first wife of his maternal grandfather. Abdul Rashid (the respondent # 2l was the son of Mst. Dawa Jan-the step brother of Mst. Hashmata Bibi and the maternal uncle of the petitioner. In the year 2OO4, the respondent # 1 sued the respondent # 2 for having got transferred her ancestral property from her vide a mutation attested on the basis a registered deed. The respondent # 1 also arrayed her real mother Mst. Mairaja, 4s the respondent in that suit. After a full contest, the suit was decreed in favour of the respondent No. 1 vide judgment and decree dated 06.07.2013. The respondent #2 pursued his remedies up to the Supreme Court, but he lost his case. In that suit, an issue was raised tl,at the respondent # 1 was not the daughter of Abdul Hamid, but from another person to whom Mst. Mairaja married after the death of Abdul Hamid. Page 7 of 77

Evidence was produced at the trial and it was judicially determined that the respondent # 1 was the real daughter of Abdul Hamid and Mst. Mairaja. Both the Courts below have ruled-trial Court by order dated 2O.O5.2O24 and appellate Court vide judgment and decree dated 2O.O9.2O24-that the present suit of the petitioner is hit by the doctrine of res judicata. The petitioner brought this as the main question in the instant revision petition before this court.

2.The petitioner challenges inheritance mutation # 1663 attested on 25.06.1995 of late Abdul Hamid. In short, he seeks declaration to reverse the aforesaid inheritance mutation and thereby deprive the respondent # 1 from the legacy of Abdul Hamid. He also seeks possession, perpetual injunction in respect of the property detailed in the head-note of his plaint.

3.The main argument of learned counsel for the petitioner is that the petitioner was not a party to the previous suit. Res judicata, he elaborates, could be attracted when, arnongst others, parties to both the former and subsequent suits are one and the same. The record made available, was perused.

4.The main point for determination, therefore, is that whether res judicata applies in the circumstances of the case. Another question is the legal status of a linding of the civil Court on the issue of pa-rentage of a person already adjudicated upon by a civil Court which constitutes both a judgment in rem and a iudgment in personqm between the sa.me parties, claiming under the same title, and which thereby operates as res judicata.

5.The record depicts that after demise of Abdul Hamid, his inheritance mutation # 1663 was attested on 25.06.1995, whereby ownership of the suit property devolved upon the respondents # 1 and 2, as well as Mst.

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Haya Jan (the mother of the petitioner). Though the petitioner disputes the inheritance, it is established on the record that his mother Mst. Haya Jan, who was alive at the time of attestation of the mutation did not challenge it, nor did she deny her familial relationship with the respondent No. 1, notably that she was not her step sister.

6.Adverting now to the former suit, the record further reveals that the respondent # 1, along with her mother Mst. Mairaja, had filed that suit in which she challenged mutation # 1692, dated 25.09.1996, which had been attested on the basis of a registered sale deed bearing No. 3463, Bahi No. 01, Volume No. 1651, dated 20.08.1996. That impugned mutation pertained to 05 Kanal , 2% Marla land, being part of a total 20 Karrals and 09 Marla, allegedly transferred from the respondent # 1. The case of the respondent # 1 was that the mutation was iIlegal and void, asserting that neither she appeared before the Sub- Registrat, nor did she affix her thumb impression on the registered deed. The suit was contested by the

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respondent # 2 with a key defence that the respondent # - 1 is not the daughter of Abdul Hamid. Evidence in the shape of a registration form for obtaining National Identity Card was produced, which showed Mst. Hashmata daughter of Fazal Rahim. The petitioner seeks to use that form as evidence in the present suit. After a full contest, the trial Court decreed the suit vide judgment passed on 06. 07 .2OL3. The respondent # 2 filed appeal which was dismissed on LO.O7.2015. His revision petition before this Court also met the same fate vide judgment and decree rendered on 30. 11.2015- He finally filed a petition before the Honourable Supreme Court, which was also dismissed on 18.1O.2OL7.

7.The submission of the cognovit by the respondent # 2 raises serious question of maintainability vis-d.-vis the Page 3 of 77

application of res judicata. Undeniably, he was the main defendant in the former suit. It was he who disputed the parentage of the respondent # 1 from late Abdul Hamid. And, to reiterate, he unsuccessfully contested the same issue till the august Apex Court. The materiality of this admission lies in the fact that he is the real maternal uncle of the petitioner. In this perspective, perhaps there is no need to say who is standing behind the petitioner in the background. Indeed, the cognovit stands as more than a mere admission. It constitutes a tacit alignment with the petitioner's position, thereby effectively placing the respondent # 2 in the shoes of the petitioner. By supporting the petitioner's plea, he now, by implication, challenges, in fact, re-agitates the parentage of the respondent # L, which, as an issue directly and substantially involved in the former suit, has been determined by all the Court concurrenfly.

8.Moving on to consider whether constructive res judicata applies in the attending circumstances of this case. Explanation IV to section 11 of the Civil Procedure Code, 1908, (CPClr, is reproduced for quick reference:

Explanation IV- 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 substantially in issue in such suit.

9.The above Explanation postulates 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 substantially in issue in a subsequent suit. In the Prouince of Punjabe (SC: 2OOO!, the Supreme Court has stated the following 05 principles of constructive res judicata:

I Section 11. Res Judicata. Court shall try any suit or issue in which the matter directly and -No substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finalIy decided by such Court. 2 Prouince of htnjab u, Ibrahim and Sons (2000 SCMRl172).

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(1)The matter direcfly and substantially in issue in the subsequent suit or issue must be the same matter which was directly or substantially in issue either in actually or constructively in the former suit.

(2)The former suit must have been a suit between the sarne parties or between the parties under whom they or anyone of them claim.

(3)The parties as aforesaid must have litigated under the same tifle in the former suit.

(4)The Court which decided the former suit must have been a Court competent to try the subsequent suit in which such issue is subsequently raised.

(5)The matter directly and substantially in issue in the subsequent suit must have heard and finally decided by the Court in the first suit..

10.Starting with the first principle: the fact that the respondent # 1 is the daughter of Abdul Hamid was substantially in issue constructively in the former suit. The inheritance mutation of Abdul Hamid, showing the respondent # 1 as one of his legal heirs, was used as a material piece of evidence in the former suit. The respondent # 2 even pleaded that she was not the daughter of Abdul Hamid-a matter which now the present petitioner has raised in the present (subsequent) suit. Considering the second princiPle, the present petitioner was not a party to the former suit, a fact which he presses into service more avowedly. His plea is wrong. The reason is that he is raising his claim under the same parties. It may be elaborated here that the respondent # 1 in the present suit was a plaintiff, and the respondent # 2 herein, &s defendant in the former suit. Coming to the third principle, the petitioner is deriving his title from late Abdul Hamid, the same person in the former suit. Both the respondents 1 and 2 herein claimed under the title of Abdul Hamid in the former suit, and now the petitioner, in connivance with the respondent # 2, is deriving title from late Abdul Hamid. As the Court in both the suits is the sarne, there arises no issue about it jurisdictional Page 5 of 17

competency. Attending now to the last principle, the matter substantially in issue in the present (subsequent) suit has been heard and finally decided by the Court in the former suit. Evidence was produced on the matter in issue and it was decided on merits by the Court of first instance which was upheld up to the to the Apex Court. The linding in the former suit has attained finality.

11.It was held in Maqbool3 (SC A"IK: 20131 that a party cannot circumvent a linal judgment by introducing new grounds or claims in a subsequent suit which were available but not asserted earlier. I{hushi Muhammada (SC: 19991 ruled that even if certain questions were not raised in the earlier proceedings, the omission to do so attracted the principle of constructive res judicata. The dictum laid down in Amanul Mullss (SC: t9971 was that where the parties had the opporhrnity to assert aI available grounds in a prior suit but failed to do so, such unraised grounds shall be deemed to have been heard and decided, and the parties would be precluded from agitating tlle same in subsequent litigation. ln Ghulam Akbar Langf (SC: 2OL2l, the Court applied constmctive res judicata in writ jurisdiction. The significance of this precedent is two-pronged: Iirst, the triggering of res judicata in a writ petition; and second, even a writ petition for quo warranto would not be exception to the operation of constructive res judicata if the circumstances warrant its application. The fact involved was the genuineness of a university degree adjudged in a former writ petition.

L2. Challenglng the paternity of a child is a serious and diflicult issue. In the previous suit, the respondent # 1 got arrayed her real mother Mst. Mairaja as a z Ch. Maqbool Raza u. Ashfa4Ahmad (2013 YLR 407 SC AJK). + Khushi Muhammad u. Prouince of htnjab (1999 SCMR 1633). 5 Amanul Mulku. Ghafoor-ur-Rehman(1997 SCMR 17961. o Gluilam Akbar Lang u. Deewant Ashiq Hussain htktwri and others (2012 SCMR Page 6 of 77

respondent. It fully established on all canons of evidence in the former suit that the respondent # 1 was the daughter of late Abdul Hamid. Even Mst. Haya Jan, mother of the petitioner, who, too, was alive at that time, did not raise any such objection. A similar question was raised before the Supreme Court in Munir Hussalpz (SC: 201231. The august Court held that throwing a legal challenge to the paternity of someone is not an assertion of one's own legal character in terms of section 42 of the Specific Relief Act, 1887. In that case, tJre paternity of a child was questioned seven months after the death of the child's father and at a time while the child was 17 years old. The same situation exists in the case in hand in which the paternity of the respondent # 1 is disputed after the death of her father and while she herself is admittedly a woman of adult age. It is worth noting that her paternity was never challenged in tlle life time of Abdul Hamid that the respondent # L was not his child from Mst. Mairaja. The Court also held that a person whose legal character, including paternity, is denied, can file a suit to assert entitlement, but in that case, as all the same, in the present case, the respondent # t has not filed a suit. In other words, it is the petitioner who challenges it wrongly and illegally. In the case of Loila Qagguma (SC: 20l9l, the Supreme Court has discussed this issue in greater details with reference to case law. The facts of that case are that the plaintiff sought declaration to the effect that the defendant-woman was not his real sister but an adopted child of his parents, and tJlat she is not entifled to his father's legacy. In tJle present case, though adoption is not agitated, the assertion is that the respondent # f. is not the daughter of Abdul Hamid. The august Court ruled against the plaintiff on certain facts, such as:

7 Munir Hussain qnd others u. Riffat Shamim and others (2023 SCMR 6) a Mst. LailaQaAaumu. FautadQagumandothers (PLD 2019 SC 449).

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a. The seeking of a negative declaration, viz. that a person is not the child of a particular person, has nothing to do with his/her own legal (section 42 of specific relief law). The Court relied on as many as 6 precedents dating between L946 and 2OO3, indicating that it is trite law.e b. A person whose legal character, including his /her paternity could file a declaratory suit that s/he was the child of someone if such legal character is denied (section 42 of specific relief law). to c. Plaintiffs prayer to cancel all documents showing the defendant as adopted child of his parents, was dismissed because such documents were not causing serious injury to him within the me€uting of section 39 of the specific relief law.

d.. A putative brother's suit to challenge his adopted sister's paternity is barred under article L28 of the Qanun- e-Shahadat Order (QSO), L984. Only a putative father may challenge the paternity under article L28 of the QSo.tt e. Forcing a woman to offer sample for her DNA test to determine her paternity violates her liberty, dignity and privacy under article L4 of the Constitution.12

13.Another key aspect of the instant case is the legal character of the earlier judgment concerning the paternity of the respondent No. 1, which partakes both of a judgment in personam and in rem. While a judgment in personam binds the parties to the suit, a judgment in rem conclusively determines the legal status of a person or thing and is binding erga omnes, provided it is rendered by a court of competent jurisdiction. The adjudication in the former suit, upheld by the highest judicial fora, directly and conclusively determined the respondent No. 1's parentage as the biological daughter of Abdul Hamid and Mst. Mairaja-an issue that was central to the e References were made to: Deokali u. Kedar iVath ILR 39 Cal. 7O4, 7O9; Klmnchand u. Jacobabad Municipalitg, AIR 1946 Sindh 98; Abdur Rohman Blangia u. Commission of Naragangonj Municipality, PLD 1959 Dacca 5; Abdul Rahman Mobashir u. Amir Ali Shah, PLD 1978 Lah. 1L3; Rehmafiillah Khan u. Gouemm.ent of Pakistan" 2OO3 SCMR 5O; and, Daw Pone u. Ma Hnin Mag, AIR 1941 Rangood22O,22L.

ro AbdulKaimu. SarragBegum, AIR 1945 |,ah.266. Referred. tr GhazalaTeh.sinZohrau. GhulnmDastagirKhan (PLD 2015 SC 327). Referred. 12 SalmanAkramRajau. Gouemm.entof hmjab (2013 SCMR 203).

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dispute and decided after fult contest. Alttrough the petitioner was not a party to that litigation, he claims under Abdul Hamid-the same title as the respondent No. 2 did in the earlier suit-and is therefore bound by the earlier determination. Consequently, the former judgment operates as res judicata, both as to status and title, precluding the present challenge. In Trustees PortL3 (Sindhz 2O1Ol the learned Sindh High Court elaborated the distinction between a judsment in rem-which determines the status of a thing or a person and is conclusive against the world at large-€uld a judgment in personam, which binds specific parties to the litigation. The Court further held that though the Supreme Court's judgment in the present case is in rem as to status, it also operates in personam between the sarne the parties on the same issue previously adjudicated, thereby attracting the bar of res judicata.

Justice M. Monir in his Principles and Digest of the Law of Euidence, gives the import of these terms as under:

The point adjudicated upon in a judgment in rem is always as to the status of the res and is conclusive against the world as to that status, whereas in a judgment in personam the point, whatever it may be, me with which is adjudicated upon, it not being as to the status of the res, is conclusive only between parties or privies. A decision in rem not merely declares the status of the person or thing, but ipso facto renders it such as it is declared. Section 41 of the Evidence Act does not use the term judgment in rem', but it incorporates the law on tl'e subject of judgments in rem, and makes them relevant not only against strangers but also conclusive of certain matters such as whether a person was entitled to a legal character or to any specific thing not as against any specified person but absolutely.

Judgments in rem are an exception to the rule of law that no man should be bound by the decision of a Court of Justice unless he or those under whom he claims were parties to the proceedings in which it was dal given. This rule of law is referable to the morims of Roman Law 13 Thtstees of the Port of Karachi u, Karachi Intentational Container Terminal Limited, (K.I.C.T.) QO1O CLC L666 [Karachi]).

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namely, 'Res inter also judicata nullun inter alias prejudicium facit', or D 'Res inter alias acta alteri nocere non debet'. Such exception of the judgment in rem in the Roman Law was the foundation of the exception in English Law. Section 41 of the Evidence Act is the foundation for the exception of judgment in rem in our corpus juris.t+ L4. Last but not the least, this case has serious implications for women's right to inheritance. It has been fully established from the record that in the former suit, tJre respondent # 2 tried to deprive the respondent # 1 in the inheritance of her father by fraudulenfly obtaining from her a sale deed which she challenged before the court and obtained a decree in her favour. The respondent # 2 contested the suit till the Apex court, dragging her in litigation till the final Court. Now, in the present suit, he again approached this Court being hands in glove with the petitioner, to re-agitate the issue which is deemed to have been taken on the doctrine of constructive res judicata. This case is a typical example of creating a pretext to deprive a woman of her property rights in the inheritance of her parents. Our higher Courts, particultrly, the august Supreme Court of Pakistan has consistently condemned the practice of depriving female legal heirs of their rightful shares in inheritance, as ordained by Shari'ah. In the case of Mst Parueents (SC: 201221, the Court highlighted the prevalent malpractice among male heirs in Pakistan, who resort to various tactics, including fraud, to deny female heirs of their legitimate inheritance rights. The relevant paragraph is reproduced below for ready reference:

12.We may once again state that we are dismayed to obsenre the all too frequent practice in Pakistan of male heirs resorting to fraud and other tactics to deprive female heirs from their inheritance. while this deprivation causes suffering to those deprived, it also unnecessarily tares the judicial system of tl:e countr5r, resulting in a needless ra M. Monir, Principles and Digest of ths Law of Euidence, [.ahore: Law Publishing Company, Vol. I, 1974, p. 563.

rs Mit. parueen (deceasedthroughZRs u. M. Peruaiz etc. (2022 SCMR 64).

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waste of resources. Each and every day that a male heir deprives a female heir is also an abomination because it contravenes what has been ordained by Almighty Allah.

15.In light of the foregoing discussion and applicable legal principles, this Court holds that the petitioner's suit is barred by the principle of constmctive res judicata. The concurrent findings of the Courts below, dismissing the petitioner's claim, are affirmed. It appears that the present suit constitutes an impermissible attempt to reopen issues conclusively determined till the Apex Court. The judgments and orders of the Courts below, being well-reason€d, do not warrant interference in revisional jurisdiction. Consequently, this petition, being devoid of merit, is dismissed tn limini. Announced

Shahid Ali "JSS/ / "

J

(S,B)

Justice Dr. I{hurshid lqbal

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