1 *M.Siraj P.S IN THE PESHAWAR HIGH COURT, PESHAWAR (Judicial Department) Civil Revision No.287-P/1998 Date of hearing: 02.05.2016 Petitioner (s) : Raza Quli Khan and others by Mr. Ghulam Mohayuddin Malik, Advocate. Respondent (s) : Mehmood Jan and others by Mr. Abdul Sattar Khan, Advocate. JUDGMENT MAZHAR ALAM KHAN MIANKHEL, C.J.- This revision petition calls in question the legality and propriety of judgment and decree dated 07.10.1992, passed by Trial Court/ Senior Civil Judge, Peshawar and that of learned Appellate Court/ Additional District Judge, Peshawar dated 18.05.1998, whereby suit of the plaintiff-respondents has been concurrently decreed by both the Courts blow. 2. Succinctly stated the facts forming the background of the instant revision petition are that, plaintiff- respondents Mehmood Jan etc (sons and daughters of Muhammad Akram Khan), filed a suit bearing No.412/1 of 1980 against Major General (Rtd) Habib Ullah Khan and others, defendant-petitioners, for declaration to the effect that they are owners in possession of 100 Kanals of land in suit Khasra numbers, mentioned in detail in the heading of the plaint, situated within the revenue estate of Moza Haryana
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C.R No.287-P of 1998 Raza Quli Khan Vs Mehmood Jan (s) : Raza Quli Khan and others by Mr. Ghulam Mohayuddin Malik, Advocate. Respondent (s) : Mehmood Jan and others by Mr. Abdul Sattar
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1
*M.Siraj P.S
IN THE PESHAWAR HIGH COURT,
PESHAWAR (Judicial Department)
Civil Revision No.287-P/1998
Date of hearing: 02.05.2016
Petitioner (s) : Raza Quli Khan and others by Mr. Ghulam
Mohayuddin Malik, Advocate.
Respondent (s) : Mehmood Jan and others by Mr. Abdul Sattar
Khan, Advocate.
JUDGMENT
MAZHAR ALAM KHAN MIANKHEL, C.J.- This revision
petition calls in question the legality and propriety of
judgment and decree dated 07.10.1992, passed by Trial
Court/ Senior Civil Judge, Peshawar and that of learned
Appellate Court/ Additional District Judge, Peshawar dated
18.05.1998, whereby suit of the plaintiff-respondents has
been concurrently decreed by both the Courts blow.
2. Succinctly stated the facts forming the
background of the instant revision petition are that, plaintiff-
respondents Mehmood Jan etc (sons and daughters of
Muhammad Akram Khan), filed a suit bearing No.412/1 of
1980 against Major General (Rtd) Habib Ullah Khan and
others, defendant-petitioners, for declaration to the effect that
they are owners in possession of 100 Kanals of land in suit
Khasra numbers, mentioned in detail in the heading of the
plaint, situated within the revenue estate of Moza Haryana
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*M.Siraj P.S
Payan Peshawar and the defendant-petitioners have no
concern whatsoever with the same, hence, entries in the
revenue record in favour of the defendant-petitioners on the
basis of mutations No.637, 638, 643 and 644, by virtue of
alleged un-registered sale deeds being the result of fraud and
collusion, are liable to be cancelled.
3. The suit was contested by the defendant-
petitioners by filing written statement, raising therein variety
of objections, legal as well as factual. From the controversial
pleadings of the parties, the learned Trial Court formulated
issues, upon which both the parties led their respective
evidence. On conclusion of trial, the learned Trial Court, vide
judgment dated 07.10.1992, by setting aside the impugned
mutations, passed a partial decree to the extent of land
measuring 72 Kanals 01 marla in favour of the respondent-
plaintiffs, however, rest of their claim was dismissed.
4. Feeling aggrieved from the judgment and
decree of the Trial Court, defendant-petitioners, filed Civil
Appeal No.265/13, before the learned Additional District
Judge, Peshawar, who by allowing the appeal vide judgment
and decree dated 13.02.1993, set-aside the judgment and
decree of the learned Trial Court and remanded the case to
the Trial Court for decision afresh after recording evidence
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*M.Siraj P.S
on the additional issues framed by the learned Appellate
Court.
5. Both the parties assailed the judgment of the
learned Appellate Court by filing separate revision petitions
before this Court, which were disposed of on mutual consent
of learned counsel for the parties that there was no need of
framing additional issues and remanding the case to the Trial
Court for decision afresh. Consequently, this Court by setting
aside the judgment and decree of the learned Appeal Court
dated 13.02.1993, remanded the appeal to it for decision
afresh, on merits, on the available evidence and record. On
receipt of the record, the learned Appellate Court after
hearing both the sides, vide judgment18.05.1998, dismissed
the appeal of the petitioner-defendants and maintained the
judgment and decree of the learned Trial Court dated
07.10.1992, hence, this revision petition.
6. Learned counsel for the petitioner-defendants
argued that the suit of the respondent-plaintiffs is hit by the
principle of resjudicata; that though this ground has not been
taken specifically in the written statement, but being pressed
during arguments before the two Courts below as well as
discussed in the impugned judgments coupled with the fact
that it being a pure question of law, can be agitated at any
stage; that the findings of the two Courts below on the
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*M.Siraj P.S
principle of resjudicata are bad in law. He while referring to
order dated 08.10.2012 of this Court contended that during
pendency of the instant petition, the petitioner-defendants
filed application for amendment in the written statement, but
the application was not pressed on the agreement of the
learned counsel for the respondent-plaintiffs who conceded
and agreed that petitioner-defendants may agitate and argue
the applicability of principle of resjudicata before this Court.
He next argued that suit No.175/1 of 1960
decided on 28.4.1962, in respect of partition was filed by
Major General (Rtd) Habib Ullah (father of the petitioner-
defendants) in which Muhammad Akram (father of the
respondent-plaintiffs) was defendant No.3; that judgment of
the appellant Court in the said suit in favour of predecessor of
the petitioner-defendants to the extent of his entitlement of
232 Kanals and 10 marlas land, has attained finality,
therefore, the instant suit of the plaintiff-respondents being in
respect of the same subject matter/ suit land and between the
same parties, is hit by the principle of resjudicata, hence, was
liable to be dismissed on this sole ground; that about 40/50
years back the petitioner-defendants purchased the aforesaid
property through various un-registered sale deeds as well as
Court decrees, followed by attestation of the impugned
mutations which have been duly incorporated in the revenue
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*M.Siraj P.S
record; that sufficient revenue record has been produced and
exhibited by the petitioner-defendants which supports their
stance coupled with the long standing un-rebutted entries in
the revenue record in their favour, but both the Courts below,
without adverting to these crucial aspects of the case, landed
in the field of error by granting decree in favour of the
respondent-plaintiffs, who have badly failed to discharge the
initial burden of proving their claim through cogent and
confidence inspiring evidence, therefore, the impugned
judgments and decrees being the result of misreading and
non-reading of evidence, are liable to be reversed.
7. Conversely, learned counsel for the plaintiff-
respondents argued that suit No.175/1 of 1960 was decided
on 28.04.1962 and appeal there-against was decided on
21.10.1964, whereas the impugned mutations vide which the
ownership and entitlement of the plaintiff-respondents has
been reduced were attested on 29.11.1966, i.e. much after the
aforesaid suit; that it was after 29.11.1966, when a fresh
cause of action accrued in favour of the plaintiff-respondents,
hence, the instant suit has rightly been filed; that cause of
action and subject matter of the previous suit were altogether
different from the instant suit, therefore, the principle of
resjudicata does not attract in the circumstances. On merits,
learned counsel contended that plaintiff-respondents have
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*M.Siraj P.S
proved their entitlement and ownership of the suit property
through sufficient documentary evidence in the shape of
revenue record and pre-emption suits vide which the suit land
was acquired by Muhammad Akram Khan (predecessor of
the plaintiffs); that the suit property was, later on, mortgaged
with defendant No.3, but in presence of said entries, fake,
fictitious and fraudulent entries with the collusion of the
revenue officials, by way of impugned mutations were made
in favour of defendant No.1, therefore, the learned Trial
Court has rightly cancelled the impugned mutations and
passed decree in favour of the plaintiff-respondents to which
no exception can be taken.
8. Learned counsel for the parties were heard and
record of the case was perused with their able assistance.
9. Since, the principle of resjudicata was pressed
vehemently by the learned counsel for the petitioner-
defendants therefore, this Court would like to take the same
first.
Since the question of resjudicata normally
becomes a mixed question of facts and law, hence, before
going to determine the legal aspect of application of this
question, one has to consider its factual aspect first and then
its legal implication. This Court is also aware of the fact that
the question of resjudicata was not taken as a defence in the
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*M.Siraj P.S
written statement, however, was argued before the Trial
Court, but was not considered simply for the reason that the
same was not part of the pleadings, but in appeal it was
argued and considered by the learned Appellate Court by
holding that this principle is not applicable in the
circumstances. During pendency of this civil revision, much
effort was made to agitate the question of resjudicata and
vide order dated 08.10.2012, it was settled that it being a
question of fact and law can be raised at any stage.
Record of earlier suit No.175/1 of 1960, was
requisitioned by this Court on the request of the learned
counsel for the petitioner-defendants, which proved to be
very fruitful in deciding the controversy in hand. The said
suit had been filed by Maj. General (Rtd) Habib Ullah (father
of the present petitioner-defendants), against Muhammad
Saeed and 10 others defendants, in which Muhammad Akram
(father of the present plaintiff-respondents) was defendant
No.3. Declaration in respect of 236 Kanals and 13 marlas
land was sought by the plaintiffs in the said suit alongwith a
prayer to declare the partition as null and void, conducted by
the Revenue hierarchy Peshawar on 02.01.1956. A partial
decree to the extent of 232 Kanal was granted in favour of
the plaintiff Maj. General (Rtd) Habib Ullah by the learned
Senior Civil Judge, Peshawar vide judgment dated
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*M.Siraj P.S
28.04.1962 while his claim to the extent of partition
proceeding was dismissed. Muhammad Saeed etc defendants
in the said suit assailed the judgment of the learned Trial
Court in C.A. No.286/13 of 1964. The learned Appellate
Court while deciding the appeal, modified the judgment and
decree of the Trial Court in the manner that plaintiff Maj.
General (Rtd) Habib Ullah was held entitled to the extent of
232 Kanals and 10 marlas land vide judgment dated
21.10.1964. Rests of the findings of the learned Trial Court
were maintained. The judgment of the learned Appellate
Court got finality as the same was not challenged by either
party.
10. In the earlier round of litigation, partition
proceedings and partition mutation were questioned, whereas
the plaintiff-respondents by feeling themselves aggrieved
from different mutations entered and attested at their back on
29.11.1966, much after final adjudication of the earlier suit,
have filed the instant suit. Though, parties in both the
litigations, are same, but the matter, directly and substantially
in issue, is not the same. In the present suit, the matter
directly and substantially in issue, is the sale mutations being
attested much after the final judgment in the earlier suit.
These mutations were entered and attested at the back of the
plaintiff-respondents, which gave them a fresh cause of
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*M.Siraj P.S
action, and they accordingly, challenged the same by way of
this suit. So it can safely be held that the instant suit is not
hit by the principle of resjudicata and is maintainable.
11. Plaintiff-respndents have questioned the
transfer of property by way of mutations No.637, 638, 641,
642, 643 and 644, alleging the same to be the result of fraud
and collusion inter-se the defendant/petitioners. In support of
their claim, Mina Dad Patwari Halqa was produced as PW.1,
who produced revenue record for the year 1929-30 upto
1979-80 (Exh.PW.1/1 to Exh.PW.1/2), Khasra Girdawri
since Kharif 1968 till Kharif 1983 Exh.PW.1/13 and
mutations No.252 attested on 12.01.1951 on the basis of