MUHAMMAD AKBAR Versus SAHIB KHATOON

ABDUL QADEER, CHAUDHRY, J.‑‑‑ Leave to appeal was granted in these two appeals to consider the question whether the previous judgment could operate as Res Judicata and as to whether under the Islamic Law Muzaffar Khan could be treated as the son of Rangu and the brother of Alam Khan deceased?

2. The relevant facts for the disposal of these appeals are that the dispute ' relates to the succession to the land measuring 413 kanals 8 marlas left by Alam Khan son of Rangu. It was alleged that Muzaffar Khan was the uterine and not the real brother of the deceased and as such his six sons were not entitled to succeed him in the presence of other heirs. It was further alleged that the matter in dispute was barred on the principle of res judicata. Four issues were framed by the trial Court. The learned Administrative Civil Judge, Mianwali, held that Muzaffar Khan was the real brother of Alam Khan, deceased and his six sons were entitled to the entire residue in preference to Fatch Khan who was found to be a consanguine brother. It was further held that the judgment in the previous suit did not operate as res judicata between the parties. On appeal, the learned District Judge, Mianwali, reversed the finding of the Civil Court and held that the judgment dated 31‑7‑1916 passed by the District Judge, Mianwali, in the previous suit between the predecessors of the parties was res judicata in this matter. He reversed the finding of the trial Court on all the issues. He, therefore, decreed the suit brought by Sardar Khan and dismissed the suit filed by the present appellants. In the High Court, a learned Judge reversed tile judgment of the District Judge and held that the findings in the previous suit did not operate as res judicata. However, the two learned Judges of the High Court maintained the finding of the learned District Judge on the point of res judicata. The pedigree table of the parties is as hereunder:‑‑

Rangu

3. In order to determine whether the judgment of the District Judge, Mianwali, in Civil Appeal No.333 of 1916 between Muzaffar Khan and Fateh Khan operated as res judicata in the present proceedings, the following facts are material. On the death of Alain Khan, a mutation was sanctioned in favour of Mst.Sahib Khatun, widow, Mst. Mehr Khatun, daughter, Shahwali Khan and six sons of Muzaffar Khan. Shahwali riled an appeal to the Collector challenging the inclusion of six sons of Muzaffar Khan on the ground that their father Muzaffar Khan was not the son of Rangu. The appeal was accepted by the Collector and the aforesaid six persons were excluded from inheritance and the entire 3/8th share in the estate of Alam Khan was exclusively sanctioned in favour of Shahwali. However, on further appeal riled by the sons of Muzaffar Khan, the Additional Commissioner restored the order of the Assistant Collector and set aside that of the Collector. Thereafter, a revision was filed in the Board of Revenue which was dismissed by the Member, Board of Revenue. In the meanwhile, Shahwali died. Sardar Khan son of Shahwali riled a suit for possession of the land in dispute claiming that the orders of the Revenue Courts were void and inoperative as against the rights of the heirs of Shahwali. In the suit, six sons of Muzaffar Khan were included as defendants Nos. 1 to 6. The trial Court held that Muzaffar Khan was not the son of Rangu but of Khan Beg Khan, a former husband of the mother Mst. Mehran. The District Judge maintained the finding of the Civil Judge on this issue. It has been asserted that the previous judgment of the District Judge does not amount to res judicata therefore the finding of the learned High Court on this score is against the principle of law. Section 11 of the Code of Civil Procedure provides that:‑

"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

4. It was observed by the District Judge in his judgment dated 31‑7‑1916 that "Nikah Khawan (D.W 4) states that Muzaffar Khan was actually with Mst. Mehran when he married her to‑Rangu. What seems most probable is that the child was really Rangu's but was born out of wedlock and this theory is consistent with all the facts". It was further observed that "my own view is as stated above, that the child was born before the marriage with Rangu took place. It was also observed that "it has not been proved that Muzaffar Khan is the legitimate son of Rangu."

5. There was a clear finding of fact that Muraffar Khan was not the son of Rangu and the issue had been decided by a Court of competent jurisdiction. It was between the same parties and in fact the; litigation was about the inheritance of Rangu. The view taken by the High Court is unexceptionable. The present suit out of which the present proceedings have arisen, was hit by the principle of res judicata.

6. In view of what has been stated above, there is no force in these appeals and the same are hereby dismissed. There will be no order as to costs.

AA./M‑1157/S Appeals dismissed.