2015 M L D 69

2015 M L D 69

[Lahore]

Before Amin-ud-Din Khan, J

Mst. GHULAM BIVI and others---Petitioners

Versus

MUHAMMAD ASLAM and others---Respondents

Civil Revision No.752 of 2003, heard on 20th June, 2013.

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

----S.42---Suit for declaration---Limitation---Inheritance---Arbitration proceedings---Rule of Court---Scope---Contention of plaintiffs was that they were legal heirs of deceased and mother of one of the defendants had wrongly given share to him---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court---Validity---Inheritance mutation was got entered by son of the deceased on 15-11-1977 and his mother received her share who transferred suit land in favour of defendants---Mother of deceased entered into arbitration proceedings which were made rule of court---Mutation was attested on the basis of said rule of court---Transferees were in possession of suit land and before that vendor was in possession of the same---Suit had been filed on 9-8-1995 after more than 22 years of death of father of plaintiffs which was time-barred---Decree could be challenged in a suit in which the plaintiff prayed for declaration of his title---Vendor was owner of much more land than she transferred and if there was any claim of plaintiffs, such could be satisfied from her ownership---Suit was result of connivance between the parties---Plaintiffs had failed to prove the case pleaded by them and Trial Court had recorded findings by ignoring the pleadings as well as documentary evidence available on record---Findings recorded by the First Appellate Court were in accordance with law and no case for interference had been made out---Revision was dismissed.

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

----S.12(2)---Application under S.12(2), C.P.C. to challenge decree---Requirements---Object---Applicant was required to established his character for challenging the decree and same could be challenged in a suit in which applicant was praying for declaration of his title---Object of S.12(2), C.P.C., was to cut short the litigation and that the parties be saved from multiplicity of the same.

            Mushtaq Ahmad Mohal for Petitioners.

            Raja Ghulam Hussain Khan for Respondents.

            Date of hearing: 20th June, 2013.

JUDGMENT

            AMIN-UD-DIN KHAN, J.---Through this civil revision petitioners have challenged the judgment and decree dated 6-11-2002 passed by learned Additional District Judge, Sargodha whereby appeal filed by the respondents-defendants was accepted and the judgment and decree dated 16-11-2000 passed by learned Civil Judge, Sargodha decreeing the suit of the plaintiffs-petitioners, was set aside.

2.         Brief facts of the case are that plaintiffs-petitioners on 9-8-1995 filed a suit for declaration that they be declared owner of the suit property measuring 23 kanals 2 marlas, fully described in the head-note of the plaint and they have challenged mutation of inheritance bearing No.461, of Gul Muhammad, their father, attested on 24-12-1981 and also challenged the decree dated 1-12-1985 passed in arbitration proceedings by Raja Abdul Qayyum, learned Civil Judge, Sargodha and also challenged Mutation No. 1128 sanctioned on the basis of the decree and also prayed for possession of the suit property.

3.         The case pleaded by the plaintiffs that they are the legal heirs of Gul Muhammad, who died in the year 1977. At the time of his death, the petitioners inherited him and mother of defendant No. 2 namely Mst. Sahibzadi also wrongly inherited him as mother of the deceased. It is further pleaded that mother of defendant No. 2 was actually the stepmother of father of the plaintiffs, therefore, wrongly a share of inheritance of their father was given to her. The suit was contested. Learned trial court framed the issues, invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. After closing the trial, the learned trial court vide judgment and decree dated 16-11-2000 decreed the suit. The defendants filed an appeal, which was accepted vide judgment and decree dated 6-11-2002, hence, this civil revision.

4.         Learned counsel for the plaintiffs-petitioners argues that findings recorded by the learned trial court are well-reasoned and in accordance with the evidence available on the file and the learned first appellate court without any justifiable reason has reversed the findings of the learned trial court. Prays for acceptance of this civil revision and setting aside the judgment and decree passed by learned first appellate court.

5.         On the other hand, learned counsel for the defendants-respondents raised two preliminary objections; one that in a suit the decree passed in arbitration proceedings has been challenged, which has not been challenged before the learned civil court in an independent suit; that petitioners were bound under the law to challenge the same under section 12(2) of the C.P.C.; that the suit has been filed after more than 12 years of death of their father; that mutation of inheritance of their father has been challenged in the suit and that the suit was time barred.

6.         I have heard learned counsel for the parties at full length and have scrutinized the evidence, as findings of both the two courts below are at variance, therefore, it was necessary that evidence be scrutinized.

7.         I have noticed that Mutation No. 461, which is of inheritance of Gul Muhammad, was got entered by Muhammad Afzal, his son, and the shares were recorded on his attestation as the same was entered on 15-11-1977 and thereafter when Mst. Sahibzadi according to the plaintiffs received a share from the estate of Gul Muhammad, she transferred the suit land in favour of respondents and entered into arbitration proceedings, which was made rule of court and Mutation No.1128 was also attested on 20-7-1988 on the basis of rule of court and admittedly the transferees are in possession of the suit land and before that Mst. Sahibzadi was in possession and this suit which has been filed on 9-8-1995 after more than 22 years of death of their father was certainly time barred.

8.         So far as point raised by the learned counsel for the respondents that plaintiffs were bound to file an application under section 12(2) of the C.P.C. and suit was not competent, I do not agree with the arguments of learned counsel as in this suit the decree granted in arbitration proceedings was not the subject matter of the suit but the events before the decree i.e. the distribution of the property of their father through mutation of inheritance No. 461 attested on 24-12-1981 was also subject matter of the suit, before challenging the legality of inheritance mutation the plaintiffs-petitioners were not able to directly file application under section 12(2) of the C.P.C. for challenging the decree of civil court. In this eventuality I am of the view that for filing an application under section 12(2) of the C.P.C. to challenge a decree, the applicant is required to establish his character for challenging the decree. In that eventuality the decree can be challenged in a suit in which the plaintiff is praying for declaration of his title, as the main purpose of section 12(2) of the C.P.C. is to cut short the litigation and that the parties be saved from multiplicity of litigation. In this view of the matter, if the arguments of learned counsel for the respondents are taken as correct, then first the plaintiffs-petitioners are bound to file a suit for declaration only against the mutation of inheritance of their father and after getting the declaration then they file an application under section 12(2) of the C.P.C. It is not the intention of law, therefore, I do no agree with the arguments of learned counsel for the respondents and in this case the plaintiffs were not debarred from challenging the decree whereby arbitration award was made rule of court in this suit.

9.         So far as the factual position is concerned, learned counsel for the respondents has referred Exh.D.11 which is Jama Bandi for the year 1983. In Khata No. 327 Mst. Sahibzadi the transferor of the suit land in favour of defendants-respondents, is recorded owner of 161 Kanals 17 Marlas. Learned counsel argued that she was owner of this much land and she has transferred only 23 Kanals 2 marlas land only and if there is any claim of the petitioners-plaintiffs against Mst. Sahibzadi that can be satisfied from the ownership of Mst. Sahibzadi and there was no need to file suit against the defendants/transferees. Further states that the suit is result of connivance between the parties, as Mst.Sahibzadi has passed away. I have further observed that in mutation of inheritance of Gul Muhammad, which was got entered by Muhammad Afzal one of the plaintiffs, Mst. Sahibzadi is shown as widow of Gul Muhammad and another Mst. Sahibzadi has been shown wife of father of deceased, Barkhudar and in this mutation there is no mention that Gul Muhammad was a son from other wife of Barkhudar and further that in this mutation also there is no mention of Mst. Biwan daughter of Mst. Sahibzadi. In this view of the matter, the plaintiffs failed to prove the case pleaded by them and the findings have been recorded by the learned trial court by ignoring the pleadings of the plaintiffs as well as documentary evidence available on record. The findings recorded by the learned first appellate court are in accordance with law and evidence on the file. No case for interference by this Court while exercising jurisdiction under section 115 of the C.P.C. has been made out, therefore, this petition stands dismissed.

AG/G-32/L                                                                                          Petition dismissed.