2014 Y L R 1082

[Lahore]

Before Amin-ud-Din Khan, J

SIRBULAND KHAN and 16 others---Petitioners

Versus

RUQAIA KHANUM and 2 others---Respondents

Civil Revision No.38 of 2007, heard on 16th May, 2013.

(a) Specific Relief Act (I of 1877)---

---S.42---Civil Procedure Code (V of 1908), O.VII, Rr.11 & 13---Qanun-e-

Shahadat (10 of 1984), Arts. 123 & 124---Suit for declaration---Rejection of
plaint---Fresh suit, filing of---Res judicata, principle of---Scope---Contention
of the defendants was that plaint of the first suit was rejected and present suit
was not competent---Suit was dismissed by the Trial Court but same was
decreed by the Appellate Court---Validity---Trial Court while rejecting the
plaint had given findings of facts and same were hurdle in proceeding of the
present suit and were hit by principle of res judicata---Plaintiffs were bound to
challenge such findings but they had opted not to do the same and filed second
suit which was also dismissed as withdrawn and present suit had been filed---
Factual findings were binding upon the plaintiffs unless those were set aside---
Proceedings initiated by the plaintiffs were based upon mala fide---Plaintiffs
were to prove the case in accordance with Arts. 123 and 124 of the Qanun-e-
Shahadat, 1984---Photocopy of the order produced could be considered---No
need existed to summon the official record---Defendants as well as the court
were satisfied and notice could be taken of photocopy the same was an
admitted one and was on the file--- Plaintiffs having failed to prove that the
attorney of the plaintiffs had not been heard for a period of 10 years' they had
no right to challenge the transaction of sale---Attorney was alive and nothing
had been brought on the record against such findings---Findings of the
Appellate Court were not sustainable---Revision was accepted.

Begum Masooda Abdul Haque v. Messrs Shan-e-Mustafa Production and

another 1985 CLC 671; Hayat (represented by his heir) v. Mst. Niamat Bibi
and 2 others PLD 1978 Lah. 245; Balwant Rao and others v. Kerba and
another AIR 1953 Hyd. 185; Nathe Khan v. Mst. Rahmat Bibi and others PLD
1961 (W.P.) Baghdad-ul-Jadid 96 and Mian Tajammul Hussain and 3 others v.
State Life Insurance Corporation of Pakistan 1993 SCMR 1137 rel.

(b) Civil Procedure Code (V of 1908)---

----O.VII, Rr.11, 13 & S.11---Rejection of plaint---Scope---Fresh suit, filing

of---Scope---After rejection of plaint of the first suit, second suit could be filed
on the basis of same cause of action---Factual findings while rejecting the
plaint were hit by principle of res judicata.

(c) Islamic Law---

----Inheritance---Estate would devolve upon the legal heirs only in case of

death of the owner of the property.

Muhammad Law by Mulla ref.

Jahangir A. Jhoja for Petitioners.

Samar Hussain for Respondents.

Date of hearing: 16th May, 2013.

JUDGMENT

AMIN-UD-DIN KHAN, J.---Through this civil revision petitioners have

challenged the judgment and decree dated 31-10-2006 passed by learned
Additional District Judge, Lahore whereby appeal filed by the respondents was
allowed and judgment and decree dated 29-9-2004 passed by learned Civil
Judge, Chunian dismissing the suit filed by the respondents-plaintiffs, was set
aside.

2. Brief facts of the case are that on 14-4-1986 plaintiffs-respondents filed a

suit for declaration and mandatory injunction etc. As per pleadings of the
plaintiffs, they previously filed a suit on the same cause of action, which was
rejected by the learned Civil Judge, Chunian vide order dated 22-5-1985
despite the fact that suit was proceedable and in the power of attorney dated
19-3-1982 no rights were given to the attorney to sell the property and there
were other facts also in the light of which the suit was proceedable and was not
liable to be rejected. Second suit was filed and withdrawn on 30-3-1986 with
permission to file a fresh one as there were technical defects in the said suit.
The case of the plaintiffs that Zaman Khan husband of plaintiff No. 1 as well
as father of plaintiffs Nos. 2 and 3 was owner of land measuring 195 kanals, 19
marlas, fully described in Para-4 of the plaint. As per averments in the plaint
that said Zaman Khan on 7/8-12-1973 appointed Ghulam Hussain brother of
plaintiff No. 1 as his special attorney. Another power of attorney was also
constituted in favour of Ghulam Hussain on 27-1-1976 as he was proceeding
to Malaysia. It is stated that after that despite efforts plaintiffs have not heard
of said Zaman Khan, therefore, except plaintiffs no one else is entitled to
inherit him, hence, they got entered Mutation No.785 for inheritance of Zaman
Khan on 3-11-1980 but same could not be attested. In their suit they have
further challenged that the power of attorney dated 19-3-1982 was fictitiously
got prepared in favour of defendant No. 1 and on the basis of said power of
attorney by committing fraud the property has been transferred in favour of
defendants. They have challenged another power of attorney on behalf of
Zaman Khan dated 3-1-1983 and also challenged the transfer of property of
Zaman Khan on the basis of said power of attorney. Written statement was
filed. Suit was contested. Learned trial court on 26-2-1989 framed the issues
and invited the parties to produce their respective evidence. Both the parties
produced their oral as well as documentary evidence. After the closing of trial,
vide judgment and decree dated 29-9-2004 the learned trial court dismissed the
suit. Appeal was preferred which was allowed by the learned first appellate
court vide judgment and decree dated 31-10-2006. Hence, this revision
petition.

3. Learned counsel for the petitioners argues that the plaint of the first suit was
though rejected but suit was also dismissed on the basis of findings recorded
by the learned trial court, therefore, states that the findings of fact recorded
against the plaintiffs-respondents were res judicata and the present suit was not
competent. Further states that in accordance with Article 123 of the Qanun-e-
Shahadat Order, 1984 it was the duty of the plaintiffs-respondents to prove the
death of said Zaman Khan. States that even for application of Article 124 of
the Qanun-e-Shahadat Order, 1984 it must be proved that the person has not
been heard of for seven years. Argues that plaintiffs have miserably failed to
prove the same. Further states that as per their own admission the power of
attorney was executed by said Zaman Khan in the year 1976, therefore, states
that entrance of Mutation No. 785 on 3-11-1980 clearly shows dishonesty on
the part of the plaintiffs-respondents. Learned counsel for the petitioners while
referring Exh.P.3 argues that in para-5 of the order passed by the District
Collector, Kasur dated 4-4-1983 District Collector while scrutinizing the
record as well as power of attorney found that said Zaman Khan is alive and
plaintiff Mst. Ruqaia Khanum was advised to seek her remedy before the
proper forum. Further states that the order dated 3-4-1985 passed by the
Member Board of Revenue whereby revision petition filed by the plaintiffs-
respondents was dismissed is concerned, states that when petitioners moved an
application before the learned trial court for summoning of the record of the
Member Board of Revenue, the reply was filed by the plaintiffs-respondents
wherein they have stated that they have produced the copy of the order of the
Member Board of Revenue, therefore, there is no need to summon the record.
States that in this eventuality the petitioners-defendants opted not to press any
further for summoning of the record, therefore, the learned trial court was
competent to take notice of the said judgment and also this Court can take
notice of the judgment of the Member Board of Revenue dated 24-5-1987
passed in ROR.No.183 of 1984 as well as R.O.R.No.192 of 1984. Revision
petition filed by the plaintiffs-respondents titled "Ruqaia Khanum versus The
State" (ROR.No.192 of 1984) was dismissed while giving findings in Para
No.3 of the judgment. Further that Mark-A, power of attorney dated 7-12-1973
in favour of Ghulam Hussain the real brother of plaintiff No.1 produced by the
plaintiffs-respondents themselves clearly shows that Zaman Khan was having
a real brother who can be an heir of Zaman Khan and who was proper person
to give evidence in this case. Further states that plaintiff No. 1/ respondent has
written herself wife of Zaman Khan, she never claims the widow of Zaman
Khan. Further while relying upon the statements of the witnesses argues that
they have impliedly admitted that Zaman Khan is alive.

4. On the other hand, learned counsel representing plaintiffs-respondents states

that the findings recorded by the learned first appellate court are in accordance
with law as well as evidence available on the file and interpretation of the
evidence made by the learned first appellate court is sustainable under the law
and there were no powers mentioned in the power of attorney relied by the
petitioners-defendants to sell the property of Zaman Khan. Further argues that
when copy of the order of Member Board of Revenue has not been produced,
therefore, same cannot be relied. Further that they have not produced any copy
of Passport etc. to show that defendant went to Malaysia and met Zaman Khan
and procured the power of attorney from him, therefore, prays for dismissal of
this revision.

5. I have considered the arguments advanced by learned counsel for the parties
and have gone through the record with their able assistance.

6. So far as rejection of plaint is concerned, I am clear in my mind that under

Order VII, Rule 13 of the C.P.C. even after rejection of a plaint second suit can
be filed on the basis of same cause of action but in this case the learned trial
court while rejecting the plaint has also given finding of fact wherein it has
been found that defendants have obtained a power of attorney from said
Zaman Khan on 19-3-1982 from Malaysia and on the basis of said power of
attorney Sale-deed No.834 was attested on 27-3-1982 and found that when the
power of attorney was procured and on the basis of power of attorney property
was transferred how the plaintiffs can challenge the power of attorney as well
as transfer of the suit property. The factual findings recorded by the learned
trial court while rejecting the plaint are hurdle in the way of the plaintiffs-
respondents in proceeding of the present suit, as these findings are res judicata
against the plaintiffs-respondents. It is true that only rejection of plaint is not
bar against the plaintiffs for filing a fresh suit on the basis of same cause of
action but when there were factual findings also against the plaintiffs-
respondents they were bound under the law to challenge the same before the
proper forum but they have opted not to challenge the same and filed a second
suit which was also withdrawn with permission of the court as per narration of
the plaintiffs themselves and the present suit has been filed. In this view of the
matter, as the learned trial court while rejecting the plaint has also recorded the
findings of fact, those are binding upon the plaintiffs unless set aside by the
court of competent jurisdiction. In this regard reliance can be placed on
"Begum Masooda Abdul Haque v. Messrs Shan-e-Mustafa Production and
another" (1985 CLC 671). As it was the case of the plaintiffs themselves that a
power of attorney was given in the name of Ghulam Hussain real brother of
plaintiff No. 1 on 27-1-1976 by Zaman Khan and thereafter getting the
Mutation of inheritance No. 785 entered on 3-11-1980 by the plaintiffs clearly
shows mala fide on their part and as the matter went up to the Board of
Revenue, therefore, all this material is sufficient to hold that proceedings
initiated by the plaintiffs are based upon mala fide. When a document endorsed
by the Embassy of Pakistan, Malaysia in the shape of power of attorney in
favour of defendant No. 1, about this document the witnesses of the
defendants-petitioners have undergone a lengthy cross-examination but
nothing could be recovered from their statement in favour of the plaintiffs. In
this eventuality when there is voluminous evidence that Zaman Khan was alive
in the year 1982, it was the duty of the plaintiffs to prove the case pleaded by
them in accordance with Articles 123 and 124 of the Qanun-e-Shahadat Order,
1984. Reliance can be placed on the judgments reported as "Hayat (represented
by his heir) v. Mst. Niamat Bibi and 2 others" (PLD 1978 Lahore 245) and
"Balwant Rao and others v. Kerba and another" (AIR 1953 HYD 185). Even
the witnesses of the plaintiffs when a suggestion was put whether Zaman Khan
is dead, they have showed their ignorance. Even I have noted that plaintiff No.
1 claims and has written herself in the plaint as well as when she appeared as a
witness has stated that she is wife of Zaman Khan.

7. So far as order of Member Board of Revenue is concerned, it is true that

certified copy of the order has not been produced on record by either of the
parties but it is on the record that when defendants-petitioners moved an
application before the learned trial court for summoning the record of the
Member Board of Revenue, plaintiffs resisted the application and one of the
grounds was that as they have produced photocopy of the said order of the
MBR and same can be considered, therefore, there is no need to summon the
record. In this view of the matter, the defendants-petitioners as well as the
court were satisfied, therefore, the notice can be taken as the photocopy was an
admitted one and was on the file of the learned trial court as well-as is
available with this file. In this regard reliance can safely be placed on "Nathe
Khan v. Mst. Rahmat Bibi and others" (PLD 1961 (W.P.) Baghdad-ul-Jadid 96)
and "Mian Tajammul Hussain and 3 others v. State Life Insurance Corporation
of Pakistan" (1993 SCMR 1137).

8. In accordance with section 41 of the Muhammadan Law by D.F.Mulla an

estate devolves upon the legal heirs only in case of death of the owner of the
property. In this view of the matter, when plaintiffs-respondents failed to prove
that Zaman Khan has not been heard of for a period of 10 years, therefore, they
have no right to challenge the transaction of sale of the property in favour of
defendants on the basis of power of attorney by said Zaman Khan and power
of attorneys duly attested by the Malaysian authorities as well as attested by
Embassy of Pakistan in Malaysia, Malaysian Embassy in Pakistan and duly
stamp paid with the Sub-Registrar, Chunian.

9. Learned Member Board of Revenue sent a notice in Malaysia for the service
of Zaman Khan on the address given by the parties and it is noted in the order
that same has been received back on 7-11-1984 signed by him before a
Magistrate of Malaysia. Learned Member Board of Revenue has noted that as
the notice was sent through the Embassy of Pakistan, therefore, it is attested by
the Legal Administration of Malaysia, Embassy of Pakistan which also bears
attestation of Legal Administration of Malaysia conclusively establishes that
Zaman Khan is alive and resides in Malaysia, therefore, when nothing has
been brought on the record by the plaintiff-respondents against this finding,
therefore, the findings recorded by the learned first appellate court ignoring all
these legal points are not sustainable under the law, therefore, while allowing
this revision petition findings recorded by the learned first appellate court are
set aside.

AG/S-75/L Petition accepted.

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