Mr. Justice Amin-ud-Din Khan in his order has decided the issue regarding non-binding nature of consent decree upon co-sharer in inheritance, which is not party to an earlier suit in Civil Revision No. 1046-D of 2001.
1. Through this revision petition plaintiff-petitioner has challenged the judgment & decree dated 08.02.2000 passed by the learned District Judge, Lodhran whereby appeal filed by the defendants-respondents was accepted and the judgment & decree dated 28.6.1999 decreeing the suit of the petitioner-plaintiff was set aside.
2. Brief facts of the case are that plaintiff-petitioner filed a suit on 04.07.1996 whereby challenged mutation of inheritance No. 1442, of her propositus namely Udmi, attested on 15.12.1956. The case pleaded by the plaintiff is that Udmi the propositus died issueless. He was having a widow at that time and three cousins namely Sharaf Din, Subhan and Sultan. Sultan is father of the plaintiff. It is pleaded that initially the mutation was attested in favour of widow of deceased and his cousins namely Sharaf Din and Subhan. Predecessor of the plaintiff was excluded. Subsequently the brother of the plaintiff namely Ameer Din started litigation with the defendants-respondents, who entered into compromise with him and accepted the right of inheritance of Sultan but with that compromise rights of the plaintiff-petitioner were ignored, therefore, she was forced to file the suit.
3. Learned counsel states that findings recorded by the learned trial court are well-reasoned and the learned first appellate court on the basis of limitation and some technicalities by taking a wrong view has accepted the appeal, therefore, revision petition before this Court.
4. On the other hand, learned counsel for the respondents argues that the suit was time barred. Further adds that father of the plaintiff Sultan never challenged the mutation impugned in this suit, in his life time and that previously a matter came before the Court under arbitration proceedings which was dismissed, therefore, the suit was not competent.
5. I have heard learned counsel for the parties and gone through the record with their able assistance.
6. Now it is not denied that Sultan was alive at the time of Udmi and further that rights of Ameer Din son of said Sultan, brother of plaintiff, have been admitted by the respondents-defendants, the beneficiaries of the impugned mutation. The learned first appellate court has accepted the appeal on the ground that previously the present plaintiff challenged the previous decree of the civil court through an application under section 12(2) of the CPC and when the application under section 12(2) of the CPC was dismissed the suit has been filed, which is not competent, when there exist a decree.
7. I have considered the findings and reasoning given by the learned first appellate court. First of all the plaintiff was not party to that proceeding or the decree referred by the learned first appellate court, even otherwise, the decree was a consent decree, therefore, it was not binding upon the present plaintiff-petitioner in the light of 2007 MLD 331 “Ahmad Khan versus Mst. Irshad Begum and 8 others” and she was not bound to challenge that decree through an application under section 12(2) of CPC if that was challenged and application was even dismissed that was not a bar against the plaintiff-petitioner for filing the suit. Even otherwise, I have a view that when before challenging a judgment & decree the plaintiff is required to establish his right and locus standi to challenge that decree in that eventuality that party can file a suit for declaration of his title or interest in the property subject matter of the decree which was previously passed by the civil court and in that suit the decree can be challenged because intention of the legislature for legislating sub section (2) of section 12 of the CPC is to curtail the litigation and not to enhance the same.
If in this eventuality it is held that first the party may establish his right or locus standi to challenge that decree through a declaratory suit and after getting that decree then file an application under section 12(2) of CPC, in my view it is not the intention of the legislature nor it is required, therefore, when a person challenges validity of the judgment & decree after establishing his right or interest and the locus standi in a suit the decree can be challenged in that suit. The simple instance of this rule is that if there is an agreement to sell in favour of a person and after that agreement the seller transfers property subject matter of the agreement through a decree in favour of any 3rd party the person having an agreement to sell of immovable property in his favour has a right to file a suit for specific performance and in that suit he can also challenge the decree in favour of 3rd party. In these circumstances, I do not agree with the findings recorded by the learned first appellate court that a decree previously passed in the proceeding is a hurdle in the way of the plaintiff-petitioner. Previous litigation was with regard to some arbitration proceedings and petitioner was not a party to those proceedings, therefore, not binding upon petitioner. Even otherwise, the previous decree in which petitioner was not a party is not binding upon the petitioner in the light of Section 43 of the Specific Relief Act, 1877, therefore, there was no need to challenge that decree under section 12(2) of the CPC.
8. So far as argument of learned counsel for the respondents that father of the petitioner/plaintiff Sultan never challenged the mutation impugned in this suit is concerned, sufficient to note that Sultan died soon after the death of Udmi.
9. So far as point of limitation is concerned when right of father of the petitioner has been admitted by the defendants in a litigation with her brother namely Ameer Din which remained in the court just before filing of suit the subject matter of this civil revision, therefore, the matter of limitation is also not a hurdle in the way of the petitioner. Light can be taken from 2007 SCMR 635 “Mst. Suban versus Allah Ditta and others”.
10. For what has been discussed above, I allow this civil revision, set aside the impugned judgment & decree passed by the learned first appellate court dated 08.02.2000 and restore that of learned trial court dated 28.06.1999.
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