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.

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 Second suit was filed and withdrawn on 30-3-1986 with permission to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.