KANIA FATIMA Versus MEMBER BOARD OF IEVENUE

ORDER

SARDAR MUHAMMAD IQBAL, J. ‑--- The appellants are heirs of one Syed Nazir Hussain Shah deceased who left landed property situated at Tehsil and District Lahore. Respondents Nos. 3 to 6 also claiming to be the heirs of said Syed Nazir Hussain Shah filed a declaratory suit against the appellants to the effect that these respondents being the only legal heirs of the deceased were entitled to the landed property left by Syed Nazir Hussain Shah. The plaint was, however, rejected on the 5th of February 1970, by the Civil Judge on the ground that the suit was not maintainable in the present form as it was hit by proviso to section 42 of the Specific Relief Act, 1877.

2. At the time of mutation proceedings A. C. 11 vide his order dated the 17th of October 1970, effected mutation of inheritance pertaining to the disputed property in favour of the appellants. Respondents Nos. 3 to 6 challenged the aforesaid order in appeal which was dismissed by the Collector on the 12th of Jute 1971. Thereupon, respondents Nos. 3 to 6 filed a revision which was accepted by the Additional Commissioner (Revenue), Lahore, on the 12th of August 1971. The case was remanded to A C. II for fresh decision after bearing both the contesting parties for the reason that when A. C. 11 had sanctioned the mutation of inheritance on sic 17ta of October 1971, he had not heard respondents Nos. 3 to 6. The aforesaid order of the Additional Commissioner was assailed by the appellants in second revision before the Member, Board of Revenue who dismissed the same on the 30th of November 1971, maintaining the order of remand passed by the Additional Commissioner. The appellants challenged the aforesaid order of the Member, Board of Revenue by way of Writ Petition No. 1521 of 1971 which was dismissed by our learned brother Shameem Hussain Kadri. J., on the 14th of February 1972. This is a Letters Patent Appeal.

3. Learned counsel for the appellants contends that the remand order for deciding the mutation of inheritance afresh was illegal as the rejection of the plaint of respondents Nos. 3 to 6 by the Civil Judge amounted to a decree which should have been given effect to by the Revenue Authorities independent of any further evidence in this respect.

We do not agree with the proposition of learned counsel. The rejection of a plaint is a decree only by fiction of law under clause (d) of section 2 of the Civil Procedure Code. There is no adjudication of the rights of the parties in such a case. The effect of rejection as distinguished from a dismissal is that in the former case, the plaintiff would not under rule 13 be precluded from filing a fresh plaint in respect of the same cause of action if he so desires. The fresh suit is, therefore, competent based on that cause of action provided it is not barrel by limita tion. In Firm Muni Lal Ram Chand v. Kalam Singh and another (A I R 1943 Lah. 121) the effect of the rejection of plaint under Order VII, rule 11, C. P. C. was explained as "If a plaint does not disclose a cause of action the only legal order that can be passed is one of rejection of plaint under Order VII, rule 11 and not of dismissal." The difference is obvious. In the case of rejection of plaint by virtue of Order VII, rule 13 the plaintiff is not precluded from bringing a fresh suit on the same cause of action while in the case of dismissal this course is not open to him. In Sawan Singh v. Surain Singh (A I R 1927 Lah. 83) it was held that "Order VII, rule 13, which provides that if a plaint is rejected for any ground mentioned in the previous rules the plaintiff shall not be precluded from presenting a fresh plaint in respect of the same cause of action merely on account of such rejection. Order VII, rule 11 (d) authorize the rejection of a plaint where the suit appears from the statement in the plaint to be barred by any law" Since the fresh suit can be filed after the rejection of plaint, the principle of res judicata is manifestly not applicable as there is no adjudication in a case where plaint is rejected. The position of law is that whereas the rejection of a plaint takes away the very basis of the suit rendering as it were that no suit was filed at all, the dismissal of a suit while recognizing the existence of the suit indicates its termination. The decision of the Court under Order VII, rule 11 rejecting the plaint is not on merits, because the suit in such a case virtually do‑s not come before the Court for the disposal on merits but falls out for the reason that preliminary steps to present the suit before the Court properly and effectively were not taken by the plaintiff. The principle of res judicata cannot be pressed into service unless the matter had been heard and finally decided. In order to invoke the principle of res judicata it is necessary to show that there was a decision finally granting or withholding the relief sought. If however, the suit was dismissed on technical ground without going into the such question and, therefore, no res judicata. In Abdullah Asghar Ali Khan v. Ganesh Dass (AIR1917PC201) the facts of the case were that A and B sere partners. The partnership was dissolved and a dissolution deed drawn up. Later on A executed a bond in B's favour for the amount found due by A. A then sued for cancellation of the bond alleging fraud on B's part. B, pleaded that the suit for cancellation of the bond alone would not lie, the bond being based on the dissolution deed. The trial Court dismissed the suit holding no fraud was proved. This dismissal was confirmed on appeal. In second appeal, the merits of the case were not gone into but the appeal was dismissed on the ground of defective constitution of the suit. B then sued A on the bond and A contended fraud as before. The Indian Courts hold the defence barred by res judicata. Their Lordships of the Privy Council held that "the issue as to fraud was not finally decided in the prior litigation, the second appellate Court, having decided the case on other grounds and hence it was not barred by the rule of res judicata. Their Lordships of the Privy Council in Sheosagar Singh v. Sitaram Singh (241 A50) observed that "to support a plea of res judicata it is not enough that the parties are the same and that the same matter is in issue. The matter must have been heard and finally decided. If there had been no appeal in the first suit the decision of the Subordinate Judge would no doubt have given rise to the plea. But the appeal destroyed the finality of the decision. The judgment of the lower Court was superseded by the judgment of the Court of Appeal, and the only thing finally decided by the Court of Appeal was that "the suit instituted was not in the proper form. In Muhammad Yar v. Muhammad Yar (A I R 1929 Lah. 596) a previous suit by plaintiff's was dismissed under the provisions of section 42, Specific Relief Act because in the opinion of the Judge mere declaratory suit could not be maintained when the plaintiff under the law could have asked for consequential relief. It was held that "the decision cannot operate as res judicata in the subsequent suit for possession. In Muhammad Qamar Shah Khan v. Muhammad Salamat Ali Khan ( A I R 1930 All. 112 ) it was held that "an order of rejection of a memorandum of appeal which has been presented by a vakil not properly authorized according to law cannot operate as res judicata in a subsequent proceeding in which an appeal has been filed in proper form."

In this view of the matter the order of the learned Civil Judge rejecting the plaint of respondents 3 to 6 was not a decision militating against the respondents and could not be the basis for entering the mutation in favour of the appellant.

4. The case before the Revenue Authorities was in respect of succession of the estate of Syed Nazir Hussain Shah. Even if the decision had been given by the Board of Revenue which is the final authority in such matters, it would not have furnished any ground to the appellants to challenge this under Article 98 of the Constitution. The mutation does not create a title in favour of any person and also does not adversely affect the rights of any person. It is only for correcting the entries in the revenue record to facilitate the recovery of the land revenue. In Thakw, Nirman Singh v. Thakur Lal Rud a Partab Naraln Singh (A I R 1926 P C 100) it was held that it is an error to suppose that "the proceedings for the mutation of names are judicial proceedings in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind, as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid." It was further held: "Orders in mutation proceedings are not evidence that the successful applicant was in possession as sole legal owner in a proprietary sense, to the exclusion, for example, of all claims of the other members of the family as co‑owners or for maintenance or otherwise, as revenue authorities have no jurisdic tion to pronounce upon the validity of such a claim." The same view was taken in Muhammad v. Sardul (P L D 1965 Lah. 472). In Muhammad Iqbal v. S. A. M. Khan (P L D 1970 Lah. 614) it was held: "The Revenue Authorities, more over in proceedings for sanctioning mutation do not act as arbiters of the rights of the parties and a decision in mutation proceedings is not a decision as to the title of the parties. They sanction mutations to keep their record in order and up‑to‑date." It was further held: "An entry by virtue of the mutation is, therefore, not the basis of title. The person in chose favour such an entry is made cannot take advantage of the same to claim a title against any person. A person adversely affected by such an entry can, notwithstanding the mutation, maintain that he is vested with the tight and have his right declared in a civil suit. In the circumstances, when the mutation does not create a title in favour of somebody and also does not adversely affect the rights of any person, the party aggrieved by such an entry cannot say that he is an aggrieved person within the meaning of Article 98".

The case moreover has not been finally decided. It has only been remanded by the Member, Board of Revenue for fresh decision. In Ramzan v. Rehabilitation Commissioner (Legal), Sargodha and another (P L D 1963 Lah. 461) it has been laid down that a remand order is not a final order and, therefore, it is not appropriate that an order of remand should be interfered with in writ jurisdiction.

5. In the light of what has been discussed above we are of the view that the order of the learned Single Judge does not call for any interference. This appeal has no merit and is accordingly dismissed in limine.

S. A. H. Appeal dismissed.