NIAMAT ALI And 3 Others vs Mst. SARDARAN BIBI And 4 Others

Brief facts in this civil revision are that the petitioners filed a suit for declaration in respect of agricultural land measuring 124 Kanals, Khatooni No. 192, Khasra No.38 Killa Nos.15/I, 16, 17, 23, 24, 25, Square No.40, Killa No.15 and Square No.41, Killa Nos.3, 4, 5, 7, 8, 9, 11, 12, 13, Mauza Dheengar Batt, Tehsil and District Sheikhupura challenging the Mutation of Inheritance No.433, dated 6-10-1968 and decree, dated 24-4-1971 and Mutation No. 13. There was a prayer of temporary injunction as well. The application for temporary injunction was dismissed by the learned trial Court vide judgment and decree dated 24-11-1997. The petitioners filed an appeal against the said judgment in the Court of learned District Judge, Sheikhupura and he vide judgment and decree dated 20-7- 1998 dismissed the appeal and also rejected the plaint under Order VII, rule 11, C.P.C. Holding that suit is barred by law.

2. Arguments advanced by learned counsel for the petitioners are that the learned District Judge had no jurisdiction to reject the plaint without framing the issues and hearing the arguments on legal issues; that section 12(2), C.P.C. Was inserted vide Ordinance X of 1980 and the impugned judgment and decree was passed on 24-4-1971, therefore, the said provision of law had no effect retrospectively and application was dismissed on that very ground. The suit of the petitioners was not barred by law but it is fully maintainable under the law. The impugned judgment being passed contrary to facts and law is not sustainable.

3. Learned counsel for the respondents submitted that decree was challenged by filing a petition under section 12(2), C.P.C. He produced certified copy of petition under section 12(2), C.P.C. And the decree passed on it. Filing of this petition was admitted before the learned trial Court as well as before the learned Appellate Court, where the petitioners have challenged the ownership possessory rights over the disputed property. He has also challenged the decree, dated 24-4-1971.

He also challenged the mutation of inheritance and mutation of decree. This petition under section 12(2), C.P.C. Was contested by the adverse party. Issues were framed and the parties produced their respective evidence and vide judgment and decree dated 23-11-I995 the learned Civil Court dismissed the application under section 12(2), C.P.C. This was instead of challenging the same before the competent forum the instant suit for declaration challenging the decree was filed on 21- 3-1996.

4. I have heard the learned counsel for the parties and have perused the record. This is admitted by the learned counsel for the petitioner that the petitioner filed petition under section 12(2), C.P.C., which was contested, issues were framed, evidence was produced and vide judgment and decree, dated 23-11-1995 it was dismissed. The petitioners cannot reagitate the matter in the same Court about the same disputed land, same parties and same disputed mutations on the pretext that at the time of filing the judgment and decree of 1971 the provisions of section 12(2), C.P.C. Were not available. He himself has exercised his right through filing a petition under section 12(2), C.P.C.

Challenging the judgment and decree in the petition under section 12(2), C.P.C. This was the right legal course adopted by him. Ghulam Zohra and others v. Faisal Farooq and others 2000 YLR 1971 and Jewan and others v. Federation of Pakistan 1994 SCM R 826.

5. The second contention of the petitioners that .The learned Appellate Court cannot reject the plaint is groundless and is not convincing. The learned Appellate Court while deciding the appeal exercises all the powers of the trial Court and can decide and reject the plaint under Order VII, rule 11, C.P.C. Barred by law. Undoubtedly the instant civil suit is barred under Order VII, rule 11, C.P.C. And the judgment passed by the learned Appellate Court is unexceptionable. Civil revision is dismissed being devoid of force.