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Petitioner: Mst. ATTIQA BEGUM & others VS Respondent: MUHAMMAD FAYYAZ KHAN deceased
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Mohammad Azam Khan, Sardar Muhammad Sadiq Khan Title:Mst. ATTIQA BEGUM & others vs MUHAMMAD FAYYAZ KHAN deceased
JUDGMENT
Reported As: PLJ 2013 SC (AJ&K) 324 Result: Appeal accepted. Judgment JUDGMENT Sardar Muhammad Sadiq Khan, J.--This case being chequered past in view of the peculiar facts and circumstances remained under protracted trial for a pretty long time, which has now culminated into the present appeal, with the leave of the Court. 2. In short the facts are that the matter in the controversy pertains to the ownership and possession of land measuring 10 kanals out of the total land measuring 20 kanals falling in Survey No, 3 situated in village Dhirkot. One Mst. Karim Jan, who was earlier arrayed as proforma-respondent in the appeal, later on, has been transposed in the line of appellants, (since dead and survived by her legal heirs) was given ownership of the suit land through declaration by the Land Commissioner under the Land Reforms Act, on 28.7.1965. Respondent No, 1, Muhammad Fayyaz Khan, who had also died leaving behind legal heirs, had got an ex-parte decree against the said Mst. Karim Jan, from the Court of Sub-Judge Dhirkot on the ground of adverse possession regarding the land in dispute on 31.1.1976. Subsequently, this ex-parte decree was challenged through another suit for declaration and possession by the deceased Mst. Karim Jan on 6.2.1977, which was also contested, among others, by the deceased Muhammad Fayyaz Khan. The ex-parte decree was set aside and the suit was decreed by the Sub-Judge Dhirkot on 29.4.1982 along with a decree for possession of land in favour of Mst. Karim Jan, deceased. It was declared by the learned Sub-Judge that Mst. Karim Jan, was the sole owner of the land in dispute for the reason that proprietary rights were granted by the Land Commissioner under the Land Reforms Act, therefore, Civil Court had no jurisdiction to annul and set aside the order and decree passed by the Land Commissioner under the provisions of the Land Reforms Act.
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3.Feeling dissatisfied with the judgment and decree of the trial Court, Deceased-Respondent No, 1, along with others filed an appeal before the District Judge Bagh, which was dismissed. A second appeal was filed by Deceased-Respondent No, 1 in the High Court against the judgment and decree of District Judge Bagh, which was also dismissed for being hopelessly time barred vide judgment and decree dated 16.6.1994. The decree passed in favour of deceased Mst. Karim Jan had attained finality, hence, the one phase of litigatiori came to an end between the parties once for all upon the disputed points of facts and law. 4. On 19.8.1982, Deceased-Respondent No, 1 filed a suit in the Court of Sub-Judge Dhirkot, claiming therein that he is an exclusive owner of the land measuring 10 kanals out of land falling under Survey No, 3 measuring 20 kanals situated in village Dhirkot, District Bagh. It was averred in the plaint that he is owner of the suit land and is in possession of the same for the last more than fifty years and the suit land is in his sole ownership according to the sale-deed dated 5.5.1999 BK. and he along with other co-sharers made a lot of improvements in it. However, he has admitted that a suit filed by Mst. Karim Jan earlier in the Court of Sub-Judge Dhirkot had been decreed in her favour. The deceased-respondent also challenged the sale-deed dated 10.8.1982 executed by Mst. Karim Jan in favour of Muhammad Aziz Khan, who has already died and is now survived by the legal representatives in the line of appellants. The deceased-respondent has alleged in the suit that Mst. Karim Jan, was not competent and entitled to alienate the said land to Muhammad Aziz Khan. The suit was resisted by both; Mst. Karim Jan as well as Muhammad Aziz Khan and they denied the claim of the plaintiff, therein. After completion of trial, the learned Sub-Judge Dhirkot ultimately dismissed the suit through the judgment dated 27.8.1999, whereby the suit was declared to be barred on account of principle of res-judicata and estoppel, having no cause of action and without proof. However, a decree for perpetual injunction was passed in favour of deceased- respondent as an alternate remedy. The plaintiff was declared to be entitled to retain possession of the suit land till he is dispossessed by following the due course of law. Feeling aggrieved from the judgment and decree passed by the trial Court, the deceased-respondent filed an appeal in the Court of Additional District Judge Kahuta/Haveli Camp Dhirkot, which was accepted by the learned Additional District Judge through its judgment and decree dated 29.4.2002 whereby the sale deed dated 5.5.1999 Bk. was declared to be valid and operative, while the sale-deed dated 10.8.1982 was cancelled and the transfer of ownership made in favour of Mst. Karim Jan under the Land Reforms Act was also declared illegal. The benefit under Section 53-A of Transfer of Property Act was also extended to the plaintiff-respondent. Mst. Karim Jan, the deceased appellant, along with others, feeling aggrieved from the judgment and decree of the Additional District Judge Haveli Kahuta dated 29.4.2002, filed second appeal in the High Court which has been dismissed by the learned single Judge High Court on 20.11.2002. The appellants have assailed the judgment of the High Court through the instant appeal for setting aside the same. 5. Mr. Abdul Rashid Abbasi, Advocate, the learned counsel for the appellants, after detailed discussion of facts, opposed the judgment and decree of the High Court and submitted that the same is against the law and facts of the case. He further argued that the judgment of the learned Sub-Judge Dhirkot, as regards the claim of deceased Respondent No, 1 in respect of ownership of the land on the basis of the so-called sale-deed dated 5.5.1999 BK, is recorded on sound legal grounds. The said judgment of the learned Sub Judge has been set aside by the learned Additional District Judge without any valid reason. The same error has been committed by the learned single Judge in the High Court. He submitted that the learned single Judge in the High Court has failed to consider and apply the provisions of law containing the principle of res-judicata, which are fully applicable to the suit filed by the deceased-respondent on 19.8.1982. He contended that the plea of res-judicata was specifically raised before the learned single Judge in the High Court but the learned Judge has refused to apply the principle for the reason that the objection relating to res-
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judicata doesn't appear to have been mentioned in the written statement, filed by Muhammad Aziz Khan, (predecessor-in-interest of the appellants) and Mst. Karim Jan. He further argued that the learned Judge in the High Court has admitted that the provisions relating to res-judicata are applicable to the case but since the plea was not raised and no issue was framed in this regard, therefore, no opinion can be expressed. He argued that the learned Judge in the High Court has failed to apply the provisions of law which were fully applicable in the circumstances of the case. An affidavit from the learned counsel representing the appellants before the High Court is attached as Annexure "I". The learned counsel submitted that the learned Single Judge in the High Court has failed to consider the fact that the suit of deceased-respondent was dismissed by the learned Sub Judge Dhirkot, on account {{URUD TEXT}} and estoppel. The word {{URUD TEXT}}is only an Urdu translation of the term `res- judicata'. The principle of res-judicata having been applied by the lowest Court, therefore, application of the same could not be refused by the High Court. He further argued that the learned Single Judge in the High Court has failed to consider the legal aspect of the case that resjudicata is one of the various forms of estoppel. The use of the word `estoppel', therefore, could not be restricted to technical and narrower sense so as to exclude the principle of res-judicata from the classes Or estoppel. The learned Single Judge, therefore, has erred in law in this regard. The learned counsel argued that it was the duty of the Court to interpret and apply the correct law which became applicable according to the facts of the case as were either admitted or proved. He submitted that the claim of Deceased-Respondent No, 1 regarding ownership of the land on the basis of so-called sale-deed dated 5.5.1999 Bk, having not been included in the earlier round of litigation, couldn't be allowed to be agitated again before the same Court and the suit was validly dismissed by the learned Sub-Judge Dhirkot on this score. The learned Additional District Judge as well as the learned single Judge in the High Court have grossly erred in law while ignoring this aspect of the case and have failed to apply the correct law in this regard. He contended that the learned Additional District Judge as well as the learned single Judge in the High Court have practically cancelled and set aside the order of the Land Commissioner regarding grant of proprietary rights to Mst. Karim Jan, deceased-appellant, and the judgment of the learned Sub Judge dated 29.4.1982, which had been upheld by the High Court and attained finality. He contended that neither the order of the Land Commissioner dated 28.7.1965 nor the judgment/decree of the learned Sub Judge dated 29.4.1982 were challenged by the deceased- Respondent No, 1 through the present suit filed on 19.8.1982. The learned counsel submitted that the provisions of Section 53-A of the Transfer of Property Act were not applicable to the case of Deceased-Respondent No, 1 The learned Additional District Judge while extending the benefit of the said provision of law has erred in law which fact has been ignored by the learned Single Judge in the High Court. He contended that Muhammad Aziz Khan, the predecessor-in-interest of appellants, and after his death the present appellants, have stepped into the shoes of Mst. Karim Jan, who has been declared to be the owner of the suit land and also a decree for possession stands, passed in her favour. The claim of plaintiff-respondent couldn't be decreed on the ground of dismissal of suit of Muhammad Aziz Khan when a decree regarding ownership and possession already stood passed in favour of Mst. Karim Jan. He has placed reliance on the following case law in support of his contention:-- (i) The case titled Muhammad Gulshan Khan vs. Secretary Establishment Division Islamabad & others (PLD 2003 SC 102), (ii) Gatron (Industries) Limited vs. Government of Pakistan & others (1999 SCM R 1072), (iii) Hdji Abdullah Khan & others vs. Nisar Muhammad Khan & others (PLD 1966 SC 690), (iv) Punoo Khan and 9 others, vs. Met. Iqbal Begum & 19 others (2012 SCR 196), (v) Shaikh Abdul Aziz vs, Mirza and 3 others (PLD 1989 SC (AJK) 139) (vi) Mad Government of the State of Jammu & Kashmir and another vs. Kashmir Timber
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Corporation [PLD 1979 S.0 (AJ&K) 139] (vii) Shafique Ahmed vs. The Honourable Chief Justice AJ&K High Court & 4 others (2010 SCR 522), (viii) Abdur Rehman and others vs. Abdul Qadir and others (1998 CLC (AJK) SC 401), (ix) The Secretary to the Government of West Pakistan, Communication & Works Department vs. Gulzar Muhammad) (PLD 1969 SC 60), 6. Mr. Muhammad Yaqoob Khan Mughal, Advocate, the learned counsel representing the respondents defended the impugned judgments of the Additional District Judge as well as the High Court, while rebutting the claim and denying the contentions of the learned Advocate for the appellants. While controverting the arguments of the learned counsel for the appellants, he submitted that the learned trial Court, though dismissed the suit of respondents to the extent of declaration but at the same time it was decreed in shape of permanent injunction. The appellants, herein, did not file any appeal or cross objection in the first appellate Court. Muhammad Aziz Khan (deceased), the vendee, filed a suit for possession and the same was dismissed by the trial Court as well as first appellate Court. He further submitted that the sale deed has duly been executed in the year 1999 Bk. and entered in the revenue record. Appellants or for that matter Mst. Karim Jan have not challenged the validity of the sale-deed or the entries made in the revenue record. The conduct of the appellants shows that they have admitted the correctness of these documents. The learned counsel argued that the earlier round of litigation has very much been highlighted on behalf of appellants. It is averred that the respondent Fayyaz Khan didn't bring on record in earlier round of litigation the sale deed now relied upon by him. It is strange that the suit was filed by Mst. Karim Jan and the same was denied by Fayyaz Khan and others. He submitted that during pendency of the appeal, the land was transferred and in these circumstances the suit was filed by Fayyaz Khan. This fact is not understandable that why all the suits have not been consolidated. He argued that the sale-deed executed in 1999 Bk. is registered, counter signed as required by law for the time being and duly entered in the revenue record. The sale-deed executed in the year 1999 Bk. is a 30 years' old document and the presumption of truth is attached to it. The Additional District Judge as well as the High Court has rightly appreciated the legal as well as the factual aspects of the case. He further submitted that the appellants have failed to point out any illegality or irregularity committed by the Courts below. He finally argued that the appellants have failed to cross-examine the witnesses produced on behalf of respondents, therefore, the statements of witnesses shall be deemed to have been admitted, He has relied upon the following case law in support of his case:-- (i) the case titled Kaneez Begum vs. Karachi Electric Supply Corporation, reported as 12001 CLC 875], (ii) Muhammad Azam & 5 others vs. Abdullah and 15 others (1999 CLC 200), (iii) Engineer Khalid Rashid Qureshi vs. Institution of Engineers, Pakistan and 18 others (1999 CLC 288), (iv) Mst. Farooq Bibi vs. Abdul Khalid and 26 others (1998 SCR 244), (v) Inayatutlah Chaudhry vs. Azad Jammu & Kashmir Government and 5 others (1990 PSC, SC (AJK) 1035), (vi) Muhammad Naseer Jahangiri & 13 others vs. Abus Sami Khan & another (PLJ 2000 AJK 123), (vii) Aziz Ullah Khan and others vs. Gul Muhammad Khan (2000 SCMR 1947) & (viii) Mst. Sardaro and others vs. Mst. Nazran Begum and others (PLD 1985 SC 274). 7. We have heard the learned counsel for the parties and gone through the record. We have also minutely perused the judgments of all the Courts below in both the phases of litigation and also considered the referred pronouncements relied upon by both the learned counsel for the parties. The case of appellants revolves around the points of estoppel and res-judicata, while the respondents' stance solely rests upon the alleged sale-deed executed on 1999 BK., on the basis of
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which they claim the ownership and possession of suit land, therefore, we will confine ourselves to the alleged disputed points of facts and law raised by the parties in the light of record referred to and relied upon by them. 8. The suit land falls under Survey No, 3 total measuring 20 kanals which is situated at village Dhirkot and was declared in the ownership of Mst. Karim Jan, on the basis of occupancy tenancy by the Land Commissioner under the Land Reforms Act on 28.7.1965. This ownership order was, well within the knowledge of deceased Respondent No, 1, who has already accepted and acquiesced the rights of deceased party. Instead of filing suit for cancellation of ownership, they instituted a suit at a wrong forum' for getting favourable decree of adverse possession unilaterally, the same was accordingly issued in their favour vide order dated 31.1.1976. The ex parte decree was set-aside by the trial Court and ownership and possession was declared in favour of (late) Mst. Karim Jan on 29.4.1982. The matter of ownership and possession of the parties was decided by the Court of first instance in the first round of litigation which was maintained up to the High Court and attained finality. This fact is admitted and established in view of the arguments of the learned Advocates for the parties, available sufficient record and the decisions of the Courts below. Hence, the matter falling within the ambit of term 'past and closed transaction' can be re-opened or not, is a moot point, which will be discussed later. 9. We have thoroughly perused the entire record available before us. The orders of trial Court dated 20.6.1972 and 29.4.1982, show that it was openly admitted by the deceased predecessor-in-interest of the respondents and his survivors that before 2001 BK, the land was under the ownership and possession of the father of (late) Mst. Karim Jan. After his death the possession of the land was forcibly taken over, thereafter, the respondents and their predecessor-in-interest are entered as owners, while Mst. Karim Jan was entered as occupancy tenant in the revenue record. The village Officer (Patwari) has also got recorded his statement, according to which, Khasra girdawaries for the years 1947 to 1956 couldn't be prepared: It is also evident from the statements of witnesses that the land in dispute remained under the possession of Mst. Karim Jan as occupancy tenant till 1960, after which she was forcibly dispossessed. It is also observed that one (late) Muhammad Moazm Khan has also filed a suit for adverse possession prior to the filing of second, suit by one deceased- Muhammad Fayyaz Khan, but all in vain. The mutations pertaining to years 1951 and 1978-79 on the basis of which deceased-respondent claimed occupancy tenancy and ownership being fake and fictitious, have already been cancelled by the trial- Court in the first round of litigation, which aspect of the matter lost sight of the two appellate Courts below. Moreso, it is also procured from the proceedings of earlier round of litigation that the land in dispute was under the possession and ownership of (late) Mst. Karim Jan, which factum has already been admitted by the deceased- respondent, Muhammad Fayyaz Khan, during the course of adducing evidence stating, therein, that Mst. Karim Jan has abandoned her right of ownership and possession by virtue of Rs, 1300/- through an agreement. Although the Court did not give weight to this piece of evidence, however, Mst. Karim Jan admitted openly that she has received Rs, 1300/- upon which the Court has clearly opined that she is declared the real owner of the land subject to return of Rs, 1300/-, which means that (late) Mst. Karim Jan has the real possession and the ownership of the land. The predecessor- in-interest of the respondents tried to get the ownership and possession through an agreement, but they did not succeed in achieving this purpose. 10. A careful consideration of the above detailed survey makes it abundantly clear that (late) Mst. Karim Jan was rightly declared permanent occupancy tenant, through an order by the Land Commissioner, which was maintained upto the High Court, as it is a universal principle that "once a tenant is always a tenant". As far the conduct of (late) Muhammad Fayyaz Khan and his predecessor-in-interest is concerned, it is evident from the above mentioned facts that they do not have any title. This aspect of the case is established from their own statements according to
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which they have already abandoned and acquiesced the rights of Mst. Karim Jan, from which now they cannot resile nor can they twist their stance. Hence, the doctrine of principle of estoppel has rightly been applied by the trial Court and wrongly denied by the two appellate Courts below. In our opinion, the point of estoppel raised by the learned counsel for the appellants has weight and force in the eye of law. 11. So far the case law relied and referred to by the learned 'counsel for the appellants is concerned, the same has relevancy and applicability to the disputed subject matter and unequivocal support to his version. While fortifying our view to these pronouncements we may place reliance on a case titled Abdul Aziz vs. Mirza and 3 others [PLD 1989 SC (AJ&K) 78], whereby a principle has, been set in view of the peculiar facts and circumstances of the case, which reads as under:-- "It .is well settled that according to the principle of estoppel a party cannot be allowed to take up a position inconsistent with that on which he had succeeded in defeating a claim in a 'previous proceeding. That being so application under Section 23 has to be decided in light of the finding that the property in dispute is evacuee in nature and the view taken by the High Court is not sustainable." 12. It is established principle of law that once a party takes a position in the matter strongly before the Court of competent jurisdiction, then it cannot change and deviate from its stance to adopt a fresh position on the same subject matter. In the case in hand, the deceased-respondent had taken a specific plea of occupancy tenant and ownership in the first phase of litigation from which they cannot resile and take a new position. The deceased-respondent and his predecessor-in- interest have already surrendered and acquiesced the rights of deceased-appellant. Now the successors of deceased-party cannot take fresh stance on their behalf. Same .like situation arose before this Court in a case titled Muhammad Sharif us. Muhammad Manzoor and others [1993 SCR 92], wherein, it has been observed as under:-- We are of the view that after filing the affidavit in the High Court accepting correctness of the award. Muhammad Sharif, appellant, was not competent to pursue the matter any further. It amounts to gross misuse of the process of the Court if a party is allowed to change its position during course of litigation. A party may estopped by his conduct in the proceedings by taking a specific position. After filing the aforesaid affidavit the appellant had no locus standi to prefer an appeal to this Court so as to annul the finding of the High Court on the point. A reference may be made to the commentary by Muhammad Monir on the law of evidence. The relevant part of commentary is reproduced as under (1969 Edition page 366): It may be laid down as a broad proposition that one, who without mistake induced by opposite- party, has taken a particular position deliberately in the course of litigation must act consistently with it; one cannot play fast and loose. It is a well settled principle that a party litigant cannot be permitted to assume inconsistent position in Court, to play fast and loose, to blow hot and cold, to approbate; and reprobate, to detriment of his opponent; and this wholesome doctrine applies not only to the successive stages of the same suit, but also to a suit other than the one in which the position was taken up, provided that second suit grows out of the judgment in the first suit." In another case titled Malik Khalid Mahmood us. Abdul Majeed and 4 others [1998 SCR 38] it has been clearly laid down that:-- "The learned counsel for the appellant submitted before us that the view taken by the High Court was not correct. We need not decide this question because it is well settled that the appellant is estopped from raising this point. Admittedly the appellant himself applied on the prescribed form to the Municipal Committee that his possession over the disputed piece of land may be regularised in his favour. After having been unsuccessful in his attempt to secure a favourable order he cannot be allowed to turn round to say that the functionaries of the Municipal Committee didn't have the authority to regularise encroachments."
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In the light of above narrated authorities of law besides the authorities referred to and relied upon by the learned counsel for the appellants, we hereby hold that the learned trial Court after thorough investigation has rightly applied the principle of estoppel, which is misjudged and mis- interpreted by the two appellate Courts below. 13. The point of vital legal and public importance raised by the learned counsel for the appellants that the High Court has committed an error in holding that the point of res-judicata, although having substantial weight, was not taken in the written statement by the appellants, therefore, no opinion can be expressed, is substantiated by record. He has strenuously argued that this point was specifically taken and argued before the High Court, but, the same was wrongly ignored. We have considered this important argument and gone through the available record. It has been ascertained that this point was taken and agitated by the appellants before the Courts below,…
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