2016 SCMR 1403

2016 SCMR 1403

[Supreme Court of Pakistan]
 

Present: Umar Ata Bandial and Manzoor Ahmad Malik, JJ

 

GHULAM ABBAS and others---Appellants
 

Versus

MOHAMMAD SHAFI through LRs and others---Respondents

Civil Appeal No. 446 of 2012, decided on 20th April, 2016.
(On  appeal  from  the  judgment  dated     16-3-2012  passed  by  Lahore  High  Court, Rawalpindi Bench in C.R. 324/2003)

(a) Civil Procedure Code (V of 1908)---

 

----O.  XXIII,  R.     1(3)---Suit  challenging  mutation  of  inheritance---Unconditional withdrawal of suit by plaintiff on basis of a purported oral compromise---Impugned mutation  remaining  in  existence  during  lifetime  of  plaintiff  notwithstanding  the compromise---Effect---Acquiescence by plaintiff---Forbearance by plaintiff to dispute the  impugned  mutation  after  the  purported  oral  compromise  either  constituted  the satisfaction of his claim or the abandonment of his cause of action---Suit filed by the legal heirs of plaintiff after 43 years challenging the (same) impugned mutation on the same cause of action was barred under O. XXIII, R. 1(3), C.P.C. in circumstances.

Plaintiff had alleged that mutation of inheritance recorded in favour of his con sanguine  brothers  and  sisters (defendants)  was  illegal.  Plaintiff  filed  suit  challenging  said  mutation  of  inheritance. However,  plaintiff  subsequently  withdrew  the  suit  unconditionally by order dated 30-01-1957 without seeking permission to file a fresh suit. Purported oral compromise between plaintiff and the defendants was cited by the plaintiff  as  the  basis  of  the  withdrawal  of  his  suit  but  neither  the  terms  of  the compromise were stated before or recorded by the Trial Court nor was any defendant examined  before  the  Trial  Court  to  state  or  admit  the  terms  of  any  compromise. Impugned mutation remained in existence notwithstanding the compromise. Plaintiff did not file any proceedings to enforce the terms of his compromise till his death in the year 1987. Inaction and acquiescence of plaintiff to challenge the impugned mutation for 30 years was evidence that it complied with his compromise. In the year 2000, when the legal heirs of the plaintiff filed a suit to challenge the impugned mutation, neither of the parties to the oral compromise survived to prove its terms. At best the  plaintiff's heirs could bring hearsay evidence and that too after a delay of 43 years. In  the said circumstances, it was futile to grant an opportunity to the heirs of plaintiff and  defendants to lead evidence about the terms of the oral compromise.