Imam Shah Vs Banat Shah

JUDGEMENT SHEET

IN THE PESHAWAR HIGH COURT, BANNU BENCH

(Judicial Department)

C.R. Ng. 80-8/2017

Imam Shah & 05 others versus Banat Shah & 04 others.

JUDGEMENT

Date ofhearing: 15.09.202!, 11,11.2021.23,11.2021 & r.J2A0?r

For petitioner: Messrs. Muhammad Tariq Qureshi and Waris Faheem, Advocates.

For respondents: Messrs. Rustam Khan Kundi and Irfanullah Marwat, Advocates.

MUHAMMAD NAEEM ANWAR. J.- Petitioners have

questioned the validity and correctness of the judgment and order of learned Additional District Judge-II, Lakki Marwat, whereby their appeal was dismissed consequently the judgment and order of learned trial court dated 05.01 .2017 was maintained.

N 02. Facts forming the back ground of the instant petition are that petitioners filed a suit for declaration to the effect that being the legal heirs of Sardar Ali Shah and Said Badshah who are successors of Mst. Gul Adama, on the strength of mutation No.

322 attested on 24.07.1998 through decree of court in Civil Suit No. 142113 and l45ll3 of learned Additional Civil Judge, Lakki Marwat dated 15.03.1997, are owner of the property bearing KhasraNo. 5 l, 75, 77, 86, 89, 49, 48, 76, 78, 53, 50, 52, 81, 87, 88, 85 (16 in number) of the revenue estate of Langar Maidad Khel Tehsil Naurang District Lakki Marwat, but non

incorporation of their names in periodical record is wrong, against the facts, collusive and mala fide which is inoperative upon their rights. Suit was contested by the respondents through their written statement along with an application under Order VII Rule 11 of the Code of Civil Procedure, 1908. The application under Order VII Rule 11 of the Code of Civil Procedure, 1908 was allowed and plaint was rejected. The petitioners filed an appeal but their appeal too was dismissed through impugned judgment and decree, hence this petition under section I l5 of the Code of Civil Procedure 1908.

C M. No. 194-812021 & C.M. No.227-Bl2021.

Through these civil miscellaneous applications, both the parties N have sought permission for placing on file the copies of revenue record which as per their contention are necessary for just decision of the instant petition. In view of submission of the learned counsel for the parties qua the nature of the documents appended with the applications, i.e., Fard-e-Jamabandi for the year 1997-98, 2001-02, 2005-06, 2009-10, 2013'1'4, mutation No. 322, both these CMs are allowed and the documents appended therewith are hereby considered as part and parcel of the instant petition.

03.Arguments heard and record perused.

04.It appears from the contents of the plaint that petitioners have made the basis for their suit, the mutation No. 322 dated 24.07.1998 (reviewed on22.12.1998) by alleging therein that on the strength of decision in civil appeal Nos. l42ll3 and l43ll3 decided on 15.03.1997, mutation No. 322 was attested but it was not incorporated in the Jamabandi. The petitioners are legal heirs of Mst: Gul Adama whose name was entered in the revenue papers while preparing Jamabandi for the years 2001- 02 but it was cancelled. A prayer for injunction was also sought that respondents be restrained from making any interference in their possession, alteration in the nature of the property and its alienation through any means in favour of anyone else. Both the parties have filed the copies of revenue papers but even then, for N determination as to whether for non-incorporation of mutation No. 322 in revenue paper despite attestation of mutation No.322, could it be judged by the leamed trial court without recording of evidence being complicated question of law and fact, not only the parties were heard at length on four different dates, i.e., 15.09.2021, 1l .11.2021, 23,11.2021 and 13.12.2021 but ADK was also summoned along with record. It was not in dispute that Mst. Gul Adama was not the legal heir of Ghulam Shah to whom the property was transferred from Azeem on whose death in the year 1926. It is also not in dispute that Ghulam Shah pre deceased his father and after decision in civil suit No. 153/l Mst.

Gul Adama alias Gul Andama, Mst. Gul Mewa and Mst. Halima

were held entitled in the legacy of their predecessor to the extent of 213'd share. Suit No. l53ll was filed on 10.04.19g3 and decided on 16.05.1990 by the then Additional civil Judge, Lakki. It appears from record that predecessor-in-interest of the petitioners along with Mst. Mosam Jana alias osam Jana daughter of Ghulam Shah widow of Sardar Ali instituted suit No. 14211 on 28.09.1985 wherein, after submission of written statement by the then defendants, an issue was framed to the effect that 'fuhether the suit is hit bv the doctrine of res subiudice? if so, its effect." Both the suits, i.e., No. l53ll of 1983 and l42ll of 1985 were decided by the learned Additional Civil Judge (Mr. Hujam Khan), Lakki Marwat as then he was, on 16.05.1990, whereby in suit No. l53ll it was held "iL \ consonance with mv above discussion, I decree the case and declare the plaintiff and defendants No. 7 to 10 owners of 2/3'd share inherited bv Mst. Gul Adama alials Gul Arydama, Mst.

Gul Mewa and Mst. Holima bv virtue of inheritance mutation No, 80 re-attested on 05,03.1947 and order that the revenue record be corrected so as to confirm to the mutation as re- attested. ,t Likewise, the suit of predecessor-in-interest of the present petitioners, i.e., Sardar Ali Shah to the extent of issue No.3, it was decided as "The defendsnts took

stalement thg rtea that suit was hit bv doctrine and res subiudice but ooint was not oressed at that time and the suit proceeded on. At the time of institution of this suit, the suit

instituted bv Nabat Shah the olaintiffs wherein the parlies and the oronertv in disnute were the same was rendins.

Thercfurc-iWs suit is hit bv the (octrine of res subiudice."

Two separate appeals were filed and were dismissed by the learned District Judge, Lakki Marwat dated 15.03.1997 and against dismissal of appeals two separate revision petitions were filed, i.e., @ and@ which were

decided through consolidated judgment by this court on 13.03.199q by Mr. Justice Shah Jehan Khan Yousafzai, as then he was. In order to understand the controversy a pedigree table was reproduced in the judgment of this Court which is crucial for decision of the controversy in the instant petition as such the same is reproduced, as under:

05.Admittedly, Mst. Gul Adama (predecessor-in-interest of the parties) and Ghulam Shah were brother and sister and Osam Jana is the daughter of Ghulam Shah from his first wife.

Likewise, Mst. Gul Adama died issueless whereas Mst. Halima and Mst. Gul Mewa were her uterine sisters falling in the category of sharer at Serial No. l1 of the table of sharer and as per Shari a 213'd share was devolved upon both of them equally.

It is also not in dispute that Mehrab Shah son of Nizam Shah was brother of Azim Shah who was paternal uncle's son of Mst.

Gul Adama and was alive at the time of death of Mst. GuI Adama as such remaining l/3'd share was inherited by Mehrab Shah

06.Intrinsically, grievance of the petitioners was that the name of their predecessor Mst. Gul Adama was incorporated in Jamabandi for the year 2001-02 but was cancelled later on and the substitution thereof was categorically mentioned in the first L column of Jamabandi where except Mst Gul Adama all others were properly named. It is reflected from the decision of earlier suit that Mst. Gul Adama alias Gul Andama was not alive even at the time of decision of those suits, i.e., 16.05.1990 and in fact Mst. Gul Adama died in the year 1962, therefore, he was rightly not named/incorporated in the Jamabandi for the year 2001-02.

Last column of Jamabandt appended with the application by the petitioners reflects that the reference of mutation No. 322,which was confirmed from ADK present in the Court during hearing from record, and this has already been incorporated with determination of correct shares. Contents of the plaint

v

demonstrate that the petitioners are legal heirs of Sardar Ali Shah who was the son of Mehrab Shah to whom l/3'd share from the inheritance of Mst. Gul Adama as residuary was given.

Apart from that, the judgment in civil suit No. 153 and 142 are self explanatory that predecessor-in-interest of the petitioners Sardar Ali Shah has filed the suit No. l42ll for declaration which was dismissed by the civil court on 16.05.1990 and the judgement and decree was maintained by this Court through the judgment in Civil Revi$ion No. 31 of 1997 decided on 13.03.1998. The petitioners by their own conduct are stopped under the principle of estoppel by acquiescence in accordance with Article I 14 of Qanun-e-Shahadat Order, 1984 which as per Osborn's dictionary "Acquiescence is a species of estoppel. An N estoppel arises where the party aware of his rtghts sees other parties acting upon the mistaken notion of his rights. Injury accruing fro* one's acquiesces in another's action to his prejudice creates estoppel" The judgment in civil suit No. 14211 is an estoppel by record, to the effect that "where a iudgement has been given by a competent court, and the effect of it is that the matters decided cannot be reopened by a person who is a party to the judgment or his representative. In India, principle of res judicata is applied to get the same effecf'. It is worth to mention that in the contents of plaint relationship of the petitioners with Mst. Gul Adama was nowhere mentioned nevertheless, after rejection of plaint when they have filed

appeal, they have mentioned that Mst. Gul Adama was the widow of Mehrab Shah which fact is repelling to the judgment in C.RNo. 3l of 1997 dated 13.03.1998 where Mst. Gul Adama was shown to be the daughter of Azim Shah from his first wife and Mehrab Shah was the son of Nizam Shah and the findings of this Court in C.R No. 3l of 1997 were not challenged before apex Court as such attained finality. It is by now well settled that judgment/order passed by the Court of competent jurisdiction, if not assailed in the higher forum shall attain finality, Reliance in this regard is placed on the cases reported as "Muhammad Aslam and

Shah" (1996 SCMR 1862) and"Kanwal Nain v. Fateh K ' (PLD 1e83 SC s3).

\ 07. Though ordinarily, intricate questions of law and facts cannot be resolved without recording of evidence but when a fact has already been established and resolved cannot be reagitated then of course on the basis of same cause of action which has earlier been alleged and decided by the Court to its logical conclusion, the institution of the fresh suit on the basis of same cause of action and trial of suit filed later on would be nothing but a futile exercise. The Supreme Court in Case titled "Raia Ali Shan versus Messrs. Essem hotel limited and others" Q007 SCMR 741) has held that in view of the Order VII, rule 11, C.P.C. it is the duty of the Court to reject the plaint

if, on a perusal thereto, it appears that the suit is incompetent, the parties to the suit are at liberty to draw Courts' attention to the same by way of an application. The Court can, and, in most cases hear counsel on the point involved in the application meaning thereby that the Court is not only empowered but under obligation to reject the plaint, even without any application from apafi, if the same is hit by any of the clauses mentioned under rule 1l of Order VII, C.P.C. Accordingly, when only one legal issue was involved which could have been resolved at the very initial stage of the suit, if the court ceased of the suit had attended to the plaint that would save the precious time of the court, the parties and their hard earned money on one hand and could achieve Goals of National Judicial Policy easily on the other, if the Trial Court would attend to the said observations. It is by now well-settled that incompetent, illegal, vexatious and frivolous suits must be buried at their inception, as the birth of those suits would not only prolong the agony of the parties but the wastage of precious time of the Courts as well. Fruitless and useless litigation must not be encouraged.

08.For the reasons discussed above, the instant petition has got no merits and both the leamed courts below have rightly decided the fate of the suit instituted by the petitioners and petitioners have not been able either to prove contrary from

- l0-

v record or an illegality in the impugned judgments or jurisdictional infirmity, therefore, this petition stands dismissed but with no order as to costs.

Announced t3.12.202t.

JUDGE

Imranullah PS (S.B) Hon'ble Mr. Justice Muhammad Naeem Anwar.

7lr )/b,/l {crlsT.o

ih"ffi'