Withdrawal of Suit, Estoppel and Locus Standi of Legal Heirs

Withdrawal of Suit, Estoppel and Locus Standi of Legal Heirs Case Laws Civil Law Inheritance Knowledge - Civil Law Litigation & Arbitration Solutions - Civil Law Supreme Court Mr. Justice Umar Ata Bandial in his judgment has decided the issue regarding withdrawal of suit, estoppel and locus standi of legal heirs to dispute mutation in Civil Appeal No. 446 of 2012.

1. The impugned judgment dated 16.03.2012 by the learned Lahore High Court, Rawalpindi Bench reverses the Appellate judgment by the learned Additional District Judge dated 17.03.2003 to uphold the judgment of the learned Trial Court dated 17.05.2001. The appellants/plaintiffs’ suit was dismissed by the learned Trial Court as being barred under Order XXIII Rule 1 CPC and Section 3 of the Limitation Act, 1908. As such, the learned High Court disapproved the learned Appellate Court’s view to remand the case for allowing the parties to bring evidence about the terms of an oral compromise claimed between the predecessors of the parties which led to the unconditional withdrawal of an earlier suit filed by the appellants’ predecessor for the same relief.

2. The facts constituting the background of the present case are that one Feroze owned property in village Bhoon, Tehsil Kalar Kahar, District Chakwal. He had two wives; one named Mst.Bibi and the other named Mst.Sardaran. Mst.Bibi had two sons, namely, Muhammad Nawaz and Faqir Muhammad. Mst. Sardaran had one son, Muhammad Shafi, and four daughters. When Feroze died before partition, his property was distributed equally amongst his three afore-named male heirs under customary law. Faqir Muhammad died issueless in the year 1950 and was succeeded by two heirs, his real brother Muhammad Nawaz and his mother Mst.Bibi. However, his mutation of inheritance No.1147 dated 21.03.1951 was recorded in favour of the said two heirs and also his consanguine brother and four sisters (“impugned mutation”).

3. On 03.01.1957 both Muhammad Nawaz and his mother Mst.Bibi filed a suit challenging the said mutation for being illegal. Notices were issued to the defendants Muhammad Shafi and his four sisters for 30.01.1957. The notices were not served on the defendants who are predecessor of the present respondents, for 30.01.1957; none were in attendance. On that date, however, Muhammad Nawaz got his statement recorded. He stated that a compromise had been arrived with the defendants. Therefore he prayed for withdrawal of his suit without the permission of the Court for filing a fresh suit. Accordingly, the learned Trial Court passed an order on 30.01.1957 dismissing the said suit as withdrawn. Thereafter, the impugned mutation No.1147 dated 21.03.1951 was neither cancelled nor modified. Muhammad Nawaz did not challenge that mutation until his death in the year 1987.

4. The appellants are the heirs of Muhammad Nawaz. They filed a suit on 12.06.2000 for annulment of the impugned mutation; however, their plaint did not mention the earlier suit filed by Muhammad Nawaz. The appellants’ suit claims the same relief of cancellation of the impugned mutation as prayed in the earlier suit because: in the presence of the real brother Muhammad Nawaz and mother Mst. Bibi of Faqir Muhammad deceased his consanguine siblings, Muhammad Shafi and his four sisters are excluded from being his heirs. The respondents/defendants filed their written statement objecting to the maintainability of the said suit under Order XXIII Rule 1 CPC. The basis of that objection is the Court’s order dated 30.01.1957 which unconditionally dismisses as withdrawn the earlier suit for the same relief filed by the appellants’ predecessor, Muhammad Nawaz against the predecessors of the respondents. In response to the objection, the appellants applied for amendment of their pleadings which was allowed both by the learned Trial Court and the learned Appellate Court.

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