Muhammad Nawaz Khan Vs Bahadar Nawaz Khan

v

Jt DGMEI,I'"I SHDDT

IN THE PESIIAUIAR HIGH COURT,

BANNU BENCH.

Qudicial Department)

C.R. No.ll -B of 2015

Muhammad Nawaz Khan & 2 others Vs Bahadur Nawaz Khan & 17 others

JUDGMENT

Date of hearing 26.01.2021

For Petitioners: - Mr. Farman Ali Khan advocate.

For respondents: - Mr. Muhammad Riaz Khan advocate.

Through this Civil

Revision, the petitioners have questioned the validity and correctness of judgment and order of learned District Judge, Bannu, whereby their appeal was dismissed, consequently the judgment and order of the learned Civil Judge-IX, Bannu dated 06.01 .2014 was maintained.

2.Facts in brief are that petitioners have filed a suit for declaration claiming therein that they are owners to the extent of 03-Kanal and l7-Marlas in property bearing Khasra No. I173 and 1174 measuring 04-Kanal and 03-Marla situated in estate of Ghoriwala, Bannu, on the basis of entries of Jamabandi for the year 1980-81 and defendants have got no

right whatsoever with this property. Recovery of possession was also sought against defendants along with a decree for perpetual injunction. It was averred in the plaint that defendants have illegally, malafidely and collusively transferred the suit property in their favour through mutation No. 2030 dated 26.11.1983 regarding which a suit No.l9lll was instituted by them wherein the decree was passed in their favour in suit titled Mst: Wreshmeena Vs Bahadur Nawaz. The decree of civil court was maintained by the appellate court but despite the above respondents are alleging themselves to be the owners of the said property, hence, the suit.

3.Suit was resisted by defendants No-l who has submitted an application under order VII Rule-l I C.P.C by \ contending therein that the property in dispute has been decreed in their favour and on the strength of judgment and decree in civil suit No. 2l0ll decided on 16.6.2003, the plaintiffs/petitioners could not claim any right in the suit property. It was further averred that the judgment and decree of the civil court was assailed through appeal which was dismissed on 19.11.2003 and thereafter C. R No.40 was also dismissed on 07.02.2008 by this court, as such the plaint of the suit is liable to be rejected. Application was properly replied; learned trial court after hearing the parties on 06.01 .2014 while accepting the application rejected the plaint. Being dissatisfied, the

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petitioners have filed an appeal, however, the same was failed on25.ll.2Ol4 from the court of District Judge, Bannu'

4.Learned counsel for petitioners contended that both the courts below have not properly gone through the judgment decision of civil suit No.l91l1 on the basis of which a was given in favour of petitioners and the decree was also affirmed by the learned appellate court. He further contended that the question of Res-iudicatu co]uld only be decided after recording of pro and contra evidence; that in order to determine as to whether the subject matter of the suit No.19lll and2l0lI was one and the same or not, he while referring the provision of order-vll Rule-ll 0f c.P.c, contended that accrual and disclosure of cause of action are totally distinct from each other and on the ground of non-accrual of cause of action, the plaint N could not be rejected.

5.Asagainstthatlearnedcounselforrespondent argued that the controversy between the parties has been laid to

rest by the apex court in C'P'No'4260 of 2017 dated 174 were 26.11.2020. He contended that Khasra No-I173 and I the time converted into Khasra No.3304 ,3305,3306 &' 3307 at of settlement in the year Tggl-92, which is evident from the judgment in civil suit No. 2loll dated 16.6.2003 and that the learnedtrialcourthasproperlyappreciatedthefactumof conversionofdisputedpropertyfromKhasraNo.|l74etc:to

Khasra No. 3304 to 3307, despite of conversion of khasra numbers through settlement the petitioners have file the suit No.19l on the basis of old survey numbers 19.5.1996, which was decided on 26.1L 1998, he added that respondent No-l is the son of Majan Khan and this fact was not only decided by the court of first instance, but was also upheld till this Court, but the petitioners once again have disputed his parentage by mentioning him in the plaint as the son of Mohibullah and lastly, that when in respect of the same subject matter between the same set of parties a decision from the court of competent re-tried thus, iurisdiction has been given, the same could not be both the courts below have properly appreciated the record of the case and decided it in accordance with law' 6.Argumentsheardandwiththeableassistantof

learned counsel record Perused.

7.At the very out-set, learned counsel for petitioners was confronted with the factum of exact Khasra numbers of the

however, disputed property on the basis of the last settlement, neither he could reply nor the revenue papers were placed on

not file. It appears from para No-l of plaint, the petitioners have only mentioned mutation Nos. 19985, 19986 dated 24.3.1981, all mutation No. 2030 dated 26.1L 1983, but have also annexed the same the mutations and extracts from Jamabandis, however, werenotappendedwiththeinstantpetition.CodeofCivil

Procedure, 1908 under section-l15 requires that all the documents were annexed before the trial court or appeal court should have been annexed with the petition for proper appreciation of the same. This is not the single fact concealed by them but they have not brought on the file the other suits and applications filed under section 12 (2) C.P.C filed by them.

They have also filed petition for leave to appeal before Hon'ble supreme court in civil Petition No. 4260 of 2017 titled AZ S N on

26.ll.2O2O,wherein the apex court while considering the entire facts have held: -

"Respondent No.1 filed a declaratory suit claiming that ire was the son of Muhammad Jan alias Majan Khan and as per Sharia laws of inheritance entitled to 7124 share in his father's estate, but was denied his right by the other heirs. The suit was decreed in favour of respondent No-1. Appeal against the same was dismissed and so too the civil revision' Further challenge was thrown by seeking review of the \ High Court's judgment but this review petition also failed. The petitioner then initiated a second round of litigation by filing an application under section nQ)7t the Code of Civil Procedure (The CoCe) beioie the trial court on the untenable ground that the court did not havejurisdiction because exclusive jurisdiction vested in the Revenue Authorities who "had sanctioned the inheritance mutation (No'14766) and therefore only they could rectify it' The court's dismissal of the application was not challenged' Instead, a third .ound of litigation was initiated by filing another application under section l2(2) of the Code before the High Court, which too was dismissed through the impugned judgment'

2.The respondent No'l's patemity itself was challenged and it was alleged that he was not the .on oi Muhammad Jan alias Majan Khan' A declaration regarding paternity and consequently declaring the iespondent No-l to be entitled to inherit fLm the diceased as his son lay within the

jurisdiction of the civil court and this lis was decided by the court, which was a court of competent jurisdiction. This decision was upheld up to the High Court and where it attained finality. Therefore, the dispute stood resolved. It was wholly inappropriate for the petitioner to then launch the second and then the third round of litigation; he should have instead abided by the decision. We find no merit in this petition, decline to grant leave, consequently this petition is dismissed."

8.Like-wise, when after the complete trial in suit No- 2l)ll dated 16.6.2003 learned trial court has referred old and new Khasra numbers on the basis of which the present suit was instituted by the petitioners with reference to the total measurement as 04-Kanals and Q3-Marla, to this effect the leamed trial court has reproduced the facts of the case and observed that total area of Khasra No. 3304 to 3307 is 04-Kanal and O3-Marla, record depicts that Khasra numbers were converted at the time of settlement, from earlier Khasra \ numbers which were 1174 etc. measuring O4-Kanal and 03- Marla. It would not be out of context to mention that in the referred to above suit, a proper issue was framed with respect to

the parentage Such aS "Wether inheritance mutation qf his

Majan"? This issue was decided by the then trial court as under: -

mutation No' "The plainttff impugned the inheritanc-e 14766 datei 22.i.lios. As in the light of my above discussion on the issue No.I & g, it is proved that plaintiff Bahadur Nawaz Khan is the son of deceased Muhammad

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lan alias Majan Khan but his name is not mentioned in the disputed inheritance as is clear from the perusal of inheritance mutation No. 14766 copy of which produced by the Potwari Halqa which is Ex:.PW'2/4, hence, the issue is decided in positive accordingly."

g. The instant suit was instituted in the year 2012,but intentionally the petitioners have based their claim on the basis of the entries of Jamabandi for the year 1980-81 with its old Khasra numbers, earlier to the settlement which took place in the year lggT-92, for the reason that suit No.2l0ll was instituted on 09.9.2002 0n the basis of the Jamabandi for the y ear 1996-97 (Zair -e- Kaar).

10.No Doubt, the accrual of cause of action and disclosure of the same are distinct from each other as the former could only be decided after recording of evidence, whereas, the latter if it does not disclose oause of action would be resulted into rejection of the plaint. The subject matter of both the suits, i.e., suit No. 210/l and the instant is the same, parties are almost the same and the subject matter went up to the apex court, copy whereof was produced by the learned counsel for the respondents today which reflects that when the inheritance mutation No. 14766 was decided in favour of respondents No-1 & 2 in suit No. 2loll against which earlier appeal and revision petition was filed and later on the applications under sectionl2(2) C.P.C were filed, which too were dismissed and lastly, the petitioner No-l filed civil petition for leave to appeal

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before the apex court which was dismissed. The fact of cause of action is also manifested from relief "Jeem" of the instant suit by which the petitioners have contended that respondents are claiming them to be the owners of the suit property. However, the claim of the respondents is based on the decree of civil court which still holds the field.

11.Furthermore, in the year 2003, this was the same cause of action when respondent No-1 was claiming himself to be the son of Majan Khan has challenged the inheritance mutation and claimed his share and his suit was decreed by the court. In such circumstances Section-I1 of the Code of Civil Procedure, 1908 is very much attractive which is reproduced as under: -

No Court shalt try any suit or issue in which the matter directly and subsiantially 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 \ ilui., litigating under the same title, in a Court competent to try sucf, subiequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided bY such Court.

Explanationt.-Theexpression..formersuit''shalldenotea suit which has been decided prior to the suit in question whether or not it was instituted prior thereto' Explanation II.-For the purposes of. this section' the .o*p.t.nc. of a Court stratl be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III.-The matter above referred to must in the fo..., suit have been alleged by one party and either other' denied or admitted, expressly or impliedly, by the Explanation IV.-The matter which might and ought to have suit U.Jn *uO. ground of defence or attack in such former

shall be deemed to have been a maffer directly and substantially in issue in such suit.

12.A look at the contents of the plaint in juxta position with decision in suit No.2l0ll qua the judgments of the apex court in C.P. No.2466 of 2017 dated 26.11.2020,Ieads to an inescapable conclusion that petitioners are time and again raising the one and the same plea through different mode and manner, which in the circumstances of law of the land is neither permissible nor could be allowed. In case titled Muhammad Saleem and others Rasheed Ahmed and others (2004 SCMR 1144) has held: -

,.we have heard leamed counsel for the petitioners. There are in concurrent findings offact that the issue raised by the petitioners relation to the suit-land had been finally heard and decided by a competent court of law and, thus, issue raised in the subsequent suit was hit by the principle of Res judicata within. the we contemplation olsection 11, c.P.c. on the face of the record, u.. ,ruLl" to find any legal infirmity, misreading or non-reading of evidence, misconstruction of any material on record or ,ir.on..ption of law on the part of the High Court' In the impugned judgment, High Court has dealt with the entire aspects \ of tn" which are not open to an exception"' "us";

13.Besides above, there are concurent findings with respect to the facts of both the suits, mentioned above' and the concurent findings could only be set-at-naught when the findings of both the courts below are perverse, against the law, illegal and is the result of mis-reading, non'reading and misapplication of law as held by the apex court in 2014

SCMR

1469 66Mst:Zaitoon Begum vs Nazar Hussain & another,.-

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"19. After what has been discussed above, we are of the considered view that the leamed Judge in Chamber of the High Court was fully justified in holding almost similar view by dismissing the two revision petitions of the appellant, after full reappraisal of evidence, adduced by the parties at the trial and also carefully considering the preponderance of the evidence. Thus, the conclusion drawn by the leamed Judge of the High Court is not open to anY excePtion.

20.Even othenvise, this Court in the case of Kanwal Nain v. Fateh Khan (PLD 1983 SC 53) has held that concurrent findings of two Courts below are not open to interference in limited revisional jurisdiction of the High Court, albeit, it may be, to some extent, effoneous on point of fact and on point of law, both."

14.For the reasons discussed above, the instant petitioner stands dismissed being bereft of merit' Announced

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JUDGE

*Imranullah PS* 6.8) Hon'ble'ble Mr. Jastice Muhanmad Naeen Anwar W Seruxnmo

HM:'