Mst. Umer Khitaba Vs Raham Nawaz Khan and others

JT,DGEMENT SHEET

IN TIIE PESHAWAR HIGH COURT, BAI\Iru

BENCH

(Judicial Department)

C.RNo. 04-B,n0t9

Mst.Umer Khitaba Petitioner.

Versus

Raham Nawaz KIan and others Respondents.

JUDGEMENT

Date of hearine: - 21.03.2022.

For petitioner: - Ilr. Naiam-us-Saqib. Advocate. For Resnondents:- Mr. Hafizullah Khan, advocate.

MUHAMMAD FAHIM WALI. J.- Impugned herein is the judgment and decree of leamed Additional District Judge-I, Bannu dated 18.09.2018, whereby the appeal of petitioner was dismissed and the judgment and order of the leamed Civil Judge-X, Bannir dated 29.09.2017 was maintained.

02.Requisite facts of the case are that petitioner/plaintiff instituted a suit for possession through partition along with an application for perpetual/mandatory injunction, in respect of shops and house both situated in Khata No. 64 Khasra Nos: 340 to 342 measuring 06 Kanals and 08 Marlas, out of the same share of petitioner/plaintiff is 845/9216 measuring I I

Marlas and. 6-213 Sarsais according to the revenue record. It is asserted in the plaint that the parties being joint owners of the property in dispute, which has not been partitioned so far, as such respondents be restrained from raising any construction, making alteration and alienating the suit property; that there is likelihood of dispute between the parties over the suit property which needs to be partitioned. Suit was contested on various legal and factual objections by the

respondents/defendants. After recording of evidence, and hearing the parties, it was dismissed by the leamed trial court on 29.09.2017. The Judgment and decree of

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leamed trial court was assailed through C.A No. 200113 by the petitioner/plaintiff which too was dismissed through impugned judgment dated 18.09.2018 by leamed Additional District Judge-I, Bannu, hence, the instant petition.

03.Arguments heard, record perused.

04.Perusal of the case file reveals that previously the plaintiff and her brother had filed a civil suit No. 6/l of 2002 aganst the present respondents/defendants that was decreed in their favour while during the proceedings of the appeal, by the intervention of the elders of the

locality, the parties had entered into a compromise vide compromise deed Ex.PW-4/l and the appellate court modified the decree of the trial court through its order dated 07.01.2016 in line with the above said compromise deed. The reason why, main argument of the leamed counsel for the respondents revolves around the principle of Res-judicata for being applicable to the case of the plaintiff..

05.In order to materially grasp the controversy between the parties, it would not be out of place to ascertain the inter-se relationship between the parties.

Both the parties are the successors of Amir Taj Ali Khan;

I Mst.Umer Khitaba/petitioner is the granddaughter of

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Amir Taj Ali Khan through his predeceased son namely, Sardar Ali Khan while Raham Nawaz Khan/respondent No.l is the real son of said Amir Taj Ali Khan. No doubt, the parties had locked homs with each other in earlier litigation, but admittedly the same was regarding the legacy or otherwise of late Amir Taj Ali Khan, however, the present controversy has arisen after the death of one Abdullah, alias, Fatwarani - who died after the compromise so reached between the parties in the previous litigation, referred to above. It is abundantly

clear that the deceased Abdullah, alias, Fatwarani was also a plaintiffin the previous suit and also happens to be the brother of Umer Khitaba/petitioner but because he died unmarried and he was only survived by his mother namely, Mst. Dilwar Jana, and petitioner Umer Khitaba, so his legacy according to Sharia also devolved upon respondent Raham Nawaz to the extent of l/6th share in his legacy. In this regard inheritance mutation No. 996 of the said Abdullah has been attested on27.05.2013.

06.In view ofthis new development, the contention of the learned counsel for the petitioner cannot be ignored that the previous litigations between the parties had been

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materially different from the present lis, insofar as after devolving of the legacy of late Abdullah, allegedly, the share that came within the possession of the said deceased that pertains to two constructed shops, has been forcibly taken into his possession by respondent No.l.

This statement also gets a candid support from the statement of Sher Afghan who appeared as PW-2 and who happens to be the person who had actually effected a compromise between the parties in the previous litigation had categorically stated in his examination in chief that deceased Abdullah was given I I Marlas house

along with pathway in the residential area while he was also given 03 Marlas along the road side comprising shops. He further stated that the said Abdullah sold his property measuring l0 Marlas in the village and constructed two shops over the aforementioned 03 marlas property which was given into possession of the tenants that he used to receive the rent therefrom.

However, according to this witress, the said shops are currently in possession ofrespondent No.1. This portion of the examination in chief remained unrebutted, neitler directly nor through any adverse suggestion so put to the witness during the course of his cross examination. This leaves us with an unescapable situation that the subject matter and cause of action in both the suits is materially different.

07.Both the leamed lower courts had failed to advert to this aspect of the case and were probably swayed away by the principle of Res-judicata and this fine distinction had unfortunately skipped their attention, which needs to be rectified.

08.In this view of the matter, the case is remanded back to the leamed trial court with the direction to firstly determine the actual ownership of late Abdullah, alias,

Fatwarani and thereafter properly assess the shares devolved upon each of the parties in accordance with their shares in his legacy in terms of corresponding area so transferred to each one of them; to ascertain the actual physical possession on the spot of the property so left over by the deceased Abdullah, alias, Fatwarani and after recording of evidence, to separate share of each legal heir by partition ofthe property so left in his legacy.

09.For the reasons stated above, this petition is accepted and the judgment and decrees of both the leamed courts below are set-aside, and the case is remanded back to the leamed trial court to decide the matter afresh after taking stock of the above referred observations.

Announced.

JUDGE

(S.B) Hon'ble Mr. Justice Muhammad Faheem ll/ali

M,:*

2 2 MAR 2022

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