PLJ 2017 Quetta 4
Present : ABDULLAH BALOCH , J.
LAL MUHAMMAD and others --Petitioners
versus
Nawabzada ABDUL GHAYAS & others --Respondents
C.R. Nos. 222 & 458 of 2010, decided on 21.4.2017.
Principles of Res -Judicata--
----Misreading & non reading of evidence-- Suit for declaration and recovery at rate of ¼ share of
crops w.e.f 2004 to 2008 and also prayed for declaration and ownership as well recovery --It is
evident from written statement filed by petitioners/defendants, wherein it is categorically den ied
ownership of petitioners and also contested claim of respondents on merits --Earlier suit was
contested by same parties on same subject matter --Since main suit regarding ownerships and
mutation entries had already been decided in earlier suit, as such, second suit on same subject
matter between same parties was hit by principle of res judicata as contemplated under Section 11, CPC --Petition was dismissed. [Pp. 8 & 11] A & B
Mr. Tahir Ali Baloch, Advocate for Petitioners.
Mr. Ehsan Rafiq Rana, Advocate f or Respondents No. 1 to 10.
Mr. Farooq Sarwar & Abdul Rahim Mengal, Advocate for State.
Dates of hearing: 24.3.2017 & 7.4.2017.
J
UDGMENT
This common judgment disposes of Civil Revision Petition No. 222/2010 & Civl Revision
Petition No. 458/2010. Since, t he subject matter of both the suits are same and in between the
same parties, thus the same are being decided through common judgment. In Civil Revision Petition No. 222/2010, the petitioners assailed the judgments & decrees 25th September 2009 and 25th Fe bruary 2010 passed by learned Additional Qazi (hereinafter referred as, “the trial
Court”) and Majlis -e-Shoora Kharan (hereinafter referred as. “the appellate Court”),
respectively, whereby suit filed by the respondents was decreed and maintained by the ap pellate
Court. Whereas, in Civil Revision Petition No. 458/2010 the judgments & decrees dated 24th February 2010 and 30th June 2010, have been assailed, whereby the suit and appeal filed by the petitioners were dismissed by the learned trial Court and appe llate Court, respectively.
2. Facts of the case are that on 4th March 2009, one Nawabzada Abdul Ghayyas Nousherwani including nine others (the respondents in both the petitions) filed a suit for declaration,
permanent injunction and recovery of Haq Maalka na from the income of crops for the year 2004
to 2008 from the property, boundaries whereof are as under:
ﺷﺮﻗﺎً :ﺳﯿﺎه ﻣﻮش و ﭘﺮه۔
ﻏﺮﺑﺎً :ﺳﯿﻢ آﺑﺪاری۔
ﺷﻤﺎﻻً :ﺣﺪ ﺳﯿﻢ ﭼﺎﮐﺮ ﭼﮑﻠﯽ۔
ﺟﻨﻮﺑﺎٖ :ﻧﺪی ﻣﻮﺿﻊ ﭘﮍﯾﻦ ﺗﻌﺼﯿﻞ و ﺿﻠﻊ ﺧﺎران۔
It is averred in the initial plaint that the plaintiffs are the recorded owners of the ancestral
property in question, which came into their share on the basis of partition took place in between the legal heirs of Nawab of Kharan Habibullah Khan, whereas the petitioners (defendants) are their Buzgars duly entered in the revenue record; that besides the petitioners (defendants) there
are certain other Buzgars, who are paying ¼ share from the income; that earlier Muhammad Khair, Shah Muhammad and other Buzgars used delaying tactics in paying the Haq Maalkana, hence they were sued before the Qazi Kharan and during pendency the said Buzgars were agreed to pay the due share, thus the matter was compromised on 7th November 2006; that the petitioners have not paid ¼ Haq Maalkana of the respondents am ounting to Rs. 97,350/ - for the
period from 2004 to 2008, hence they were approached through notables, but they refused, hence suit was filed.
3. Whereas, the subsequent suit (Civil Revision Petition No. 458/2010) has been filed by the petitioners seeking declaration, permanent injunction and correction of Khewat/Khatooni No.
1/9, 1/10, 1/12, 1/14, 1/15, 1/17, 1/18, 1/19, 1/20, 1/21, 1/22, 1/23, 1/24, 1/25, 1/26, 1/27, 1/28, 1/29, 1/30, 1/31, 1/33, 1/35, 1/36, 1/37, 1/38, 1/39, 1/40 situated at Mouza Padai n Tehsil &
District Kharan, which is bounded as under:
ﺷﺮﻗﺎً :اراﺿﯿﺎت ﻣﺤﻤﺪ ﺧﯿﺮ، ﺟﻼل، ﺳﯿﺎه ﻣﻮش و ﭘﺮه۔
ﻏﺮﺑﺎً :ﺳﯿﻢ آﺑﺪاری۔
ﺷﻤﺎﻻٖ :ﺳﯿﻢ ﺳﺮآب۔
ﺟﻨﻮﺑﺎٖ :ﺳﯿﻢ ﺑﺮﺷﻮﻧﮑﯽ۔
It is averred in the subsequent plaint that the suit property is their ancestral property and they are in cultivation possession of the same from the time of their forefathers, whereas they have never paid any kind of tax etc. for the said land, but the re spondents being influential persons with the
connivance of revenue authorities got entries in the name of Nawab of Kharan Habib Ullah Khan as the owner and the petitioners have been shown as Buzgars in the revenue record and thus, succeeded in obtaining Khatooni in his favour, whereas subsequently the said properties were further mutated in the name of respondents as owners; that the petitioners have absolutely no knowledge of the mutation entries so carried out in the name of Nawab of Kharan or to the names of his legal heirs i.e. respondents: that in the year 2007 by hiding the said Khatoonis the respondents filed a suit for payment of Haq Maalkana, whereafter the petitioners obtained the copies of Khatoonis and found that they have been mentioned as Mouroosi Buzgars, while after declaring Nawab Habibullah Khan as owner, and the petitioners were also bound down to make payment of ¼ share as Haq Maalkana; that the mutation entries were made by the respondents with the connivance of revenue authorities; that earlier the respondents filed a suit for payment of Haq Maalkana, but the same was dismissed due to insufficient evidence; that the Nawab of Kharan have only lands in Mouza Padain, which are in the possession of Muhammad Khair,
Jalal, Murad Khan, Shah Muha mmad and Ali, but in the garb of such lands, the respondents want
to usurp the lands of petitioners; that the representative of Nawab of Kharan has never
approached the petitioners for payment of Haq Maalkana.
4. The suit so filed by the parties against e ach other were contested by them on legal as well as
on factual grounds by means of filing written statement, wherein raised certain legal objections on maintainability of the suit. The learned trial Court out of the pleadings of the parties framed the fol lowing issues for determination of dispute in Civil Revision No. 222/2010, as under:
۔۱ ﮐﯿﺎ ﮐﻮرٹ ﻓﯿﺲ درﺳﺖ ﭼﺴﭙﺎں ﮨﮯ؟
۔۲ ﮐﯿﺎ واﻗﻌﯽ ﻣﺘﺪﻋﻮﯾہ ﺑﺤﺪودات ﻋﺮﺿﯽ دﻋﻮی ﻣﺪﻋﯿﺎن ﮐﯽ ﺟﺪی ﭘﺪری ﻣﻠﮑﯿﺖ ﮨﮯ۔ ﺟﻮ ﮐہ ﺗﻘﺴﯿﻢ ﻧﺎﻣہ ﻣﺤﺮره
۰۰۰۲۔۰۱۔۲ ﺎن ﮐﮯ ﻧﺎم ﭘﺮ درج ﮨﮯ؟ﮐﯽ رو ﺳﮯ ﺳﺎﻟﻢ ﻣﻮﺿﻊ ﭘﮍﯾﻦ ﺑﺤﺜﯿﺖ ﻣﺎﻟﮏ ﻣﺪﻋﯿ
۔۳ ٤۰۰۲ﮐﯿﺎ واﻗﻌﯽ ﻣﺪﻋﺎ ﻋﻠﯿﮩﻢ ﻓﺼﻞ ﭘﯿﺪاوار ﺳﺎل ۸۰۰۲ﺳﮯ ﻟﯿﮑﺮ ۲۱ﺗﮏ ﺣﻖ ﻣﺎﻟﮑﺎﻧہ ﺣﺼہ ﻣﺪﻋﯿﺎن ﮐﻮ
دﯾﻨﮯ ﺳﮯ اﻧﮑﺎری ﮨﯿﮟ۔
۔٤ ﮐﯿﺎ واﻗﻌﯽ ﻣﺪﻋﯿﺎن ﻧﮯ ﻏﻠﻂ طﻮر ﭘﺮ ﻣﺘﺪﻋﻮﯾہ ﮐﻮ اﭘﻨﮯ ﻧﺎم ﭘﺮ اﻧﺪراج ﮐﯽ ﮨﮯ؟
۔٥ ﮐﯿﺎ واﻗﻌﯽ ﻣﺘﺪﻋﻮﯾہ ﻣﯿﮟ ﻣﺪﻋﯿﺎن ﮐﻮ ﮐﻮﺋﯽ ﺣﻖ و ﺣﺼہ ﻧہ ﮨﮯ؟
۔٦ ﮐﯿﺎ واﻗﻌﯽ ﻣﺪﻋﯿﺎن و ﺧﯿﺮ ﻣﺤﻤﺪ ﻧﮯ ﺳﺎزش ﮐﮯ ﺗﺤﺖ آﭘﺲ ﻣﯿﮟ دﻋﻮی ﮐﺮ ﮐﮯ راﺿﯽ ﻧﺎﻣہ ﮐﯿﺎ ﺗﮭﺎ؟
5. The parties produced their respective evidence and also recorded the statements of their attorneys. The learned trial Court after hearing the parties decreed the suit of the respondents, vide its judgement & decree dated 25th September 2009. Being aggrieved from the aforesaid
judgement, the petitioners filed an appeal before the appellate Court, which was dismissed, vide
its judgment & decree dated 25th February 2010, w hereafter the instant revision petition was
filed.
6. Learned counsel for petitioners contended that the judgments & decrees passed by the Courts below suffer from misreading and non -reading of evidence; that the judgments are non -speaking;
that the issue s have not been framed according to law and pleadings of the parties; that both the
Courts below passed the judgments & decrees in contravention of Order 20 Rule 5 as well as Order XLI Rule 31 CPC; that the Courts below had no jurisdiction to decide the di spute of Haq
Maalkana for the reasons that an alternate remedy was available to the respondents before the Revenue Court under the Balochistan Tenancy Ordinance (XXIV of 1978). He further prayed for setting -aside the judgments & decrees passed by the learn ed Courts below.
7. Conversely, the learned counsel for respondents vehemently opposed the arguments so
advanced by the learned counsel for petitioners and contended that the respondents are legal
heirs of Nawab of Kharan and the land in dispute is their ancestral property; that the property of
Nawab Kharan was distributed and devolved upon the legal heirs of Nawab Kharan by the orders
of the Hon’ble Supreme Court of Pakistan; that the names of respondents have been entered in
the revenue record as owner, while the names of the petitioners were recorded in the revenue
record as Mouroosi Buzgars; that according to rules/traditions the petitioners are liable to pay Haq Maalkana to the owners of the land for which the petitioners were failed to discharge their
liabilities; that sufficient oral as well as documentary evidence produced by the respondents in support of their case; that the petitioners have failed to produce any documentary evidence in
rebuttal; that the learned trial Court after proper appreciatio n of evidence decreed the case of
respondents. He also supported the judgments of the Courts blow.
8. On the other hand Mr. Abdul Raheem Mengal, State Counsel appearing on behalf of
Advocate General contended that the Courts blow had no jurisdiction to adjudicate upon the
matter of tenancy; that alternate remedy is available to the respondents to invok e the jurisdiction
of Revenue Court under Balochistan Tenancy Ordinance (XXIV of 1978).
9. Heard the learned counsel for the parties and minutely perused the record with their able
assistance. Record reveals that the respondents/plaintiffs filed a suit f or declaration and recovery
of Haq Maalkana at the rate ¼ share of crops w.e.f. 2004 to 2008 and also prayed for declaration and ownership as well as recovery of Haq Maalkana in their prayer clause. It is evident from the written statement filed by the petitioners/defendants, wherein it is categorically denied the ownership of the petitioners and also contested the claim of the respondents on merits. The learned trial Court out of the pleadings of the parties framed the issues as stated above, mainly framed Issues No. 2 and 4 for determination of ownership and title, which reads as under:
۔ ﮐﯿﺎ واﻗﻌﯽ ﻣﺘﺪﻋﻮﯾہ ﺑﺤﺪودات ﻋﺮﺿﯽ دﻋﻮی ﻣﺪﻋﯿﺎن ﮐﯽ ﺟﺪی ﭘﺪری ﻣﻠﮑﯿﺖ ﮨﮯ۔ ﺟﻮ ﮐہ ﺗﻘﺴﯿﻢ ﻧﺎﻣہ ﻣﺤﺮره ۲
۰۰۰۲۔۰۱۔٤۲ ﮐﯽ رو ﺳﮯ ﺳﺎﻟﻢ ﻣﻮﺿﻊ ﭘﮍﯾﻦ ﺑﺤﺜﯿﺖ ﻣﺎﻟﮏ ﻣﺪﻋﯿﺎن ﮐﮯ ﻧﺎم ﭘﺮ درج ﮨﮯ۔؟
ﻗﻌﯽ ﻣﺪﻋﯿﺎن ﻧﮯ ﻏﻠﻂ طﻮر ﭘﺮ ﻣﺘﺪﻋﻮﯾہ ﮐﻮ اﭘﻨﮯ ﻧﺎم ﭘﺮ اﻧﺪراج ﮐﯽ ﮨﮯ؟۔ ﮐﯿﺎ وا٤
Both the issues are related to the ownership of the disputed property. The petitioner did not file the relevant evidence of exhibited documents in their petition, however, the original record o f the
case was called from the trial Court, perusal of which reflects that the respondents/plaintiffs produced three PWs in support of their contention as well as recorded statements of their
attorneys, who in support of claim of respondents/plaintiffs produced and exhibited documents as Ex.P/8 & Ex.P/9 with regard to the ownership of the property belonging to former Nawab of Kharan, which was subsequently remained in the custody/possession of Court of Ward for an indefinite period and during the course of that period the predecessor of petitioners alongwith other Mouroosi Buzgars had paid Haq Maalkana to the Court of Ward i.e. Deputy Commissioner Kharan as per Ex.P/3. It is further transpired that revenue record was exhibited through record keeper Muhammad Ayaz Patwari as Ex.P/7, wherein earlier the disputed property was in the
name of Deputy Commissioner Kharan being custodian of the property of N awab of Khan,
which was later on devolved and transferred in the revenue record in the name of respondents/plaintiffs, Bearing Khata No. 9, 10, 15, 16, 17, 18, 19, 20, 35, 36, 37, 38, 33, 34, 39, 40, 21, 22 as well as the names of petitioners were entered as Mouroosi Buzghars.
10. Perusal of record further reveals that the above disputed property was also distributed among the legal heirs of Nawab of Kharan i.e. respondents/plaintiffs in the year 2000 and copy whereof was also annexed with the suit and ex hibited before the Court, as such, with regard to the
ownership. In view of the aforesaid two issues, the petitioners/defendants only produced four DWs and also recorded the statements of attorneys, wherein most of the witnesses have shown their ignorance and knowledge regarding the ownership of the property in dispute either belong
to Nawab of Kharan or thereafter transferred in revenue record in the name of respondents/plaintiffs, as such, the petitioners/defendants had been failed to produce any document ary evidence with regard to the ownership of the disputed property while the
respondents/plaintiffs had succeeded to prove their case of ownership, as such, the learned trial
Court as well as the appellate Court had rightly decided both the issues of owner ship and title in
favour of respondents/ plaintiffs. It is settled principle of law as laid down by the Hon’ble Apex Court as well as by this Court that the documentary evidence prevails and override upon the oral evidence. It is pertinent to mention here that out of aforesaid two issues burden of prove was
lying upon the respondents/plaintiffs on Issue No. 2 while the burden of prove on Issue No. 4
was upon the petitioners/defendants. The respondents/plaintiffs succeeded to prove Issue No. 2
in their favour by producing oral as well as documentary evidence while the petitioners/defendants have failed to prove the Issue No. 4 in their favour.
11. As far as the other issues are concerned, the Issue No. 1 was with regard to submission of Court Fee, which was accordingly decided in favour of the respondents, while burden of prove
on Issue No. 5 and 6 were lying upon petitioners. Since the main Issue No. 2 and 4 had been decided in favour of respondents, as such, the Issue No. 5 & 6 decided against the petitioners, while rest of the Issue No. 3 regarding non -payment of Haq Maalkana w.e.f, 2004 to 2008, is
concerned, the record reveals that the respondents/plaintiffs have been failed to prove their case to the extent of non- payment of Haq Maalkana w.e.f. 2004 to 2008 through any cogent evidence,
as such, the same was decided against the respondents/plaintiffs.
12. The contention of the learned counsel for the petitioners as well as the learned State Counsel
with regard to the Issue No. 3 that alternate remedy was available to the respondents/plaintiffs to
invoke the jurisdiction of Revenue Authorities under the Balochistan Tenancy Ordinance 1978 for recovery of Haq Maalkana is concerned, be that as it may, but the said issue was decided against the respondents and they did not challenge the impugned judgments to the extent of Issue
No. 3, which attained finality, as such, there would be no occasion for the respondents to agitate
upon, however, they are liberty to invoke the jurisdiction of revenue Court under the T enancy
Ordinance for future dispute of Haq Maalkana if so arrived.
13. Now adverting to Civil Revision Petition No. 458/2010, wherein the petitioners/plaintiffs filed a suit for declaration and correction of mutation entries before the Qazi Kharan against the
present respondents, which was contested by the respondents by means of filing written statement, wherein raised legal objection mainly objection of res -judicata for maintainability of
the suit on the ground that the mutation entries questioned in the instant suit pertaining to
disputed property of subject matter of suit between the same parties has been decided earlier to the instant suit in Civil Revision Petition No. 222/2010 and the question of ownership of said mutation entries were also questione d under Issue No. 2 and 4 of that suit and both the issues
were decided in favour of the respondents, as such, the instant suit is hit by principle of Res -
judicata.
14. The learned trial Court out of pleadings of parties framed as many as seven issues and mainly parties were directed to argue the Issue No. 6 pertaining to Section 11 CPC (Res -
judicata). After hearing the parties the learned trial Court comes to the conclusion that the earlier suit between the same parties on the same subject matter was adju dicated and decided vide its
judgement dated 29th September 2009 and the only difference between the earlier suit and in the suit in hand is that, the earlier suit was filed by the respondents/plaintiffs while the suit in hand was filed by the petitioners/plaintiffs, as such, the suit in hand is hit by the principle of res -
judicata, accordingly the suit of petitioners was dismissed, vide judgment & decree dated 24th
February 2010. Being aggrieved and dis -satisfied the petitioner filed an appeal before the l earned
appellate Court, which was also met the same fate.
15. The learned counsel for petitioners contended that the judgments & decrees passed by the
Courts below are result of misreading and non- reading; that the learned trial Court has failed to
provide opportunity of evidence to the petitioners that the petitioners were condemned unheard” Audi Alterm Partem ;” that the learned Courts below erroneously decided the suit of
petitioners/plaintiffs on the principle of res -judicata; he further prayed for rema nd of the case and
providing opportunity of leading evidence.
16. On the other hand, the learned counsel for the respondents strongly opposed the arguments of the counsel for the petitioners and contended that the issue between the parties on the same subject matter was decided by the same Court, as such, the second suit was incompetent and not maintainable. While the learned State Counsel argued that no interest of State is involved in the subject matter.
17. After hearing the counsel for the parties and perusing of record, it reveals that earlier suit
was contested by the same parties on the same subject matter. It is pertinent to mention here that earlier suit was remains pending for adjudication before the trial Court till 25th September 2009,
but the petitioners have failed to challenge the mutation entries during the course of pendency of earlier suit and after passing of final judgments on 25th September 2009 by the trial Court, the suit in hand was filed by the petitioners on 24th November 2009. Since the main issue regarding ownership and mutation entries have already been decided in the earlier suit, as such, the second suit on the same subject matter between the same parties was hit by the principle of res -judicata
as contemplated under Section 11 CPC. The Courts below had rightly decided the matter in
accordance with law and the learned counsel for petitioners have failed to point out any
illegality or irregularity in the concurrent findings of Court below, which are well reasons and
decided in t he manner of Order 20 Rule 5 and Order 41 Rule 31 CPC.
For the above reasons, both the Civil Revision Petitions Nos.222 & 458/2010 are hereby
dismissed and the judgments & decrees passed by the Courts below are maintained, with no
order as to costs.
(Z.I.S.) Petitions dismissedThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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