JEHAN BAHADUR vs HAZRAT WALI AND Other
This petition for leave to appeal arises from a Peshawar High Court judgment dismissing a civil revision concerning a dispute over mortgagee rights in land. The petitioner claimed mortgagee rights through purchase from predecessors-in-interest whose own claims to those rights had been previously litigated and dismissed in a prior civil suit. The plaintiff-respondents, having purchased rights from a different party, sought possession and the removal of the petitioner from the revenue record. The trial court initially dismissed the suit, but the first appellate court reversed this, finding that the petitioner could not acquire rights that had been judicially negated in the earlier litigation and that the identity of the suit property was established. The High Court affirmed these findings. The Supreme Court, upon review, held that the petitioner could not validly purchase rights that the predecessors-in-interest did not possess or that had been extinguished by a prior judicial decree. Furthermore, the Court found that the identity of the property was sufficiently established by the evidence. Consequently, the petition for leave to appeal was dismissed.
- Can a person acquire valid mortgagee rights from a predecessor-in-interest whose own claim to such rights has been dismissed by a court of competent jurisdiction?
- Is a party bound by the outcome of a previous litigation regarding the same property rights when they claim title through the unsuccessful party in that prior suit?
- Can a court rely on the identity of property established by boundaries provided in the record when determining competing claims to mortgagee rights?
ORDER
1. SHAFIUR RAHMAN, J.-The petitioner, an unsuccessful defendant, seeks leave to appeal against the judgment of the Peshawar High Court dated 2-9-1982 whereby a civil revision filed by him was dismissed.
2. The petitioner was recorded purchaser of mortgagee rights of Ghulam Rasool and Alam in respect of Khasra No. 1/518 measuring 1 :Canal and 2 Marlas situate in village Turlandi. He had purchased these rights by two mutations attested on 22-5-1973. The plaintiff-respondents had purchased mortgagee rights in respect of the same land from Khushal Khan. They later instituted a suit claiming that they were mortgagees entitled to possession of the land and that the petitioner had no such interest by purchase from Ghulam Rasool and Alam. The background of this claim was that the predecessor-in-interest of the parties, that is, Ghulam Rasool and Alam as plaintiffs and Khushal Khan as defendant, had litigated in respect of the same property and with regard to the same right in Civil Suit No. 516 decided on 23-11-1973. In that suit Ghulam Rasool and Alam claimed to be mortgagees of this land, to be correctly so recorded in the revenue record and claimed that Khushal had no interest as mortgagee of this land on account of an exchange with them. This suit had been dismissed. It was thereafter the turn of the purchasers froth Khushal Khan to institute a suit asserting their mortgagee interest in the land and demanding ouster of the petitioner from the revenue record and the property. The trial Court dismissed the suit holding that the previous suit had a different content and import and the property purchased by the plaintiff-respondents was not identified to be the suit-property. The first appellate Court reversed this "Wing on the ground that the petitioner claimed no other interest except one under the purchase from Ghulam Rasool and Alam and the purchase was of the same interest which Ghulam Rasool and Alam had failed to get recognized from the Court. In the first place, therefore, it was held that the petitioner could not have purchased a right which was not recognized by the Court earlier. It was also held that the identity of the property purchased by the plaintiff-respondents and the interest of Khushal Khan therein was fully established. Hence the suit was decreed. In the civil revision the High Court affirmed these two findings and maintained the first appellate Court's judgment.
3. The effort of the learned counsel for the petitioner has been to demonstrate that the previous judgment inter-partes was of no assistance to the plaintiff-respondents and the identity of the property purchased by them was not established.
4. We have examined the record. The judgment which the petitioner wants to avoid has not been placed on record. There was in the earlier suit a specific issue "whether the suit land is mortgaged to the plaintiffs" and it was held that it was not. It is from the plaintiffs of that suit that the petitioner claimed to have purchased mortgagee rights. It will follow that they did not purchase any such right nor any such right existed as could be transferred by their predecessor-in-interest. As regards the identity of the property, the boundaries of the same had been provided and identifica--petition of it was possible and the two Courts have identified it.
5. We do not find any merit in this petition and leave to appeal is refused.