IN THE SUPREME COURT OF PAKISTAN 
 
    (Appellate Jurisdiction) 
 
 
 
 
 
 
 
Present 
 
 
 
 
Mr. Justice Umar Ata Bandial 
 
 
 
 
Mr. Justice Manzoor Ahmad Malik 
 
CIVIL APPEAL NO. 446 OF 2012 
(On appeal from the judgment dated 16.03.2012 passed by  
Lahore High Court, Rawalpindi Bench in C.R.324/2003) 
  
Ghulam Abbas & others   
 
… 
… 
Appellants.  
Versus 
Mohammad Shafi (decd) thr. LRs & others … 
Respondents.  
 
 
For the appellants  
: 
Mr. Gulzarin Kiani, Sr. ASC.  
 
Ch. Akhtar Ali, AOR.  
 
For the respondents  
: 
Mr. Muhammad Amir Butt, ASC.  
 
 
 
 
 
Syed Rifaqat Hussain Shah, AOR.  
 
Date of hearing  
 
: 
20.04.2016. 
 
 
 
 
 
JUDGMENT 
 
UMAR ATA BANDIAL, J. – 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 
C.A.446 of 2012 
2 
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 
C.A.446 of 2012 
3 
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.  
C.A.446 of 2012 
4 
5. 
 
A new paragraph 6A was accordingly incorporated by 
the appellants in their plaint. This paragraph explains that the 
predecessors of the respondents had conceded the claim of 
Muhammad Nawaz, predecessor of the appellants, and had 
renounced any entitlement in the legacy of Faqir Muhammad 
deceased. Therefore, they handed over to Muhammad Nawaz 
possession of the land taken by them from such legacy. The 
possession of the returned land had thereafter remained with the 
appellants/plaintiffs. The amended written statement filed by the 
respondents denied paragraph 6A of the plaint and claimed that 
Muhammad Nawaz predecessor of the appellants had withdrawn 
his suit unilaterally after receipt of adequate compensation.  
6. 
 
In the background of the foregoing pleas of the parties, 
a preliminary issue was framed by the learned Trial Court to the 
effect:  
“Whether the suit is hit by the provisions of Order XXIII Rule 1 CPC 
and the suit is not maintainable?” 
 
The learned Trial Court vide judgment dated 17.05.2001 concluded 
that the bar under the said provision of law applied to the suit filed 
by the appellant in the year 2000. This suit was also held to be time 
barred for having been filed 43 years after the cause of action 
admittedly accrued in favour of the appellants’ predecessor. Vide 
judgment dated 17.03.2003, the learned Appellate Court remanded 
the case to the learned Trial Court by observing that it was proper to 
grant an opportunity to the parties for recording their evidence on 
C.A.446 of 2012 
5 
the plea of compromise taken by the appellants. In exercise of 
Revisional jurisdiction the learned High Court on 16.03.2012 
reversed the appellate judgment and reaffirmed the view taken by 
the learned Trial Court in its judgment dated 17.05.2001. Hence, this 
appeal.  
7. 
 
The learned counsel for the appellants has submitted 
that by mentioning compensation the amended written statement by 
the respondents impliedly admits the compromise averred by the 
plaintiffs in their plaint; that a compromise is also mentioned in the 
statement of Muhammad Nawaz, predecessor of the appellants, 
recorded by the learned trial Court on 30.01.1957 due to which his 
suit was dismissed as withdrawn. The respective stands taken by the 
parties showed a dispute between them about the terms of the 
compromise. It is contended that the appellants had a right to lead 
evidence for proving such terms, which has wrongly been denied by 
the impugned judgment. In any event, the learned High Court ought 
to have confined itself to whether recording of evidence was 
necessary for deciding the preliminary issue about the effect of 
Order XXIII Rule 1 CPC. It was wrong for the learned High Court to 
decide the said preliminary objection and to dismiss the appellants’ 
suit. Reliance has been placed on Mir Alam Shah  vs. Adam Khan  
(2004 CLC 1100), Mohsin Khan  vs.  Ahmad Ali (PLD 2004 Lahore 
1), Subha Jayan  vs. Meenakshy Kumaran (AIR 2004 Kerala 39), 
C.A.446 of 2012 
6 
Kaluvaroya   vs. Ganesa (AIR 1969 Madras 248) and  Muhammad 
Shafique  vs.  Muhammad Rafique (2012 YLR 2801). 
8. 
 
The learned counsel appearing for the respondents 
submits that the order dated 30.01.1957 passed by the learned Trial 
Court shows unconditional withdrawal of the suit filed by the 
appellants’ predecessor which tantamounts to abandonment of the 
claim by the plaintiff/ predecessor of the appellants. Secondly, he 
submits that even if the compromise claimed in paragraph 6A of the 
amended plaint is presumed, it is an established fact that such 
compromise 
was 
not 
implemented 
through 
cancellation/ 
modification of the impugned mutation No.1147 dated 21.03.1951 
and the transfer of title of the corresponding land in favour of 
Muhammad Nawaz, the predecessor of the appellants. For 30 years 
until his death the said Muhammad Nawaz was satisfied with the 
impugned mutation remaining in the field. The compromise terms 
alleged in paragraph 6A of the amended plaint cannot survive to the 
extent that these conflict with the conduct of Muhammad Nawaz. 
Accordingly, no right can vest in the appellants to now claim relief 
conflicting with the impugned mutation. He also argued that, in any 
case, the right available to Muhammad Nawaz was for enforcement 
of the compromise terms. A suit for such a claim is time barred.  
9. 
 
After hearing the learned counsel for the parties and 
having carefully perused the record, if seems useful to first read the 
provisions of Order XXIII Rule 1 CPC:  
“1.Withdrawal of suit or abandonment of part of claim.- (1) At 
any time after the institution of a suit the plaintiff may, as against 
C.A.446 of 2012 
7 
all or any of the defendants, withdraw his suit or abandon part of 
his claim. 
 
(2) Where the Court is satisfied— 
(a)  
that a suit must fail by reason of some formal 
defect, or 
(b)  
that there are other sufficient grounds for allowing 
the plaintiff to institute a fresh suit for the subject-
matter of a suit or part of a claim, it may, on such 
terms as it thinks fit, grant the plaintiff permission 
to withdraw from such suit or abandon such part 
of a claim with liberty to institute a fresh suit in 
respect of the subject matter of such suit or such 
part of a claim. 
(3) Where the plaintiff withdraws from a suit, or abandons part of 
a claim, without the permission referred to in sub-rule (2), he 
shall be liable for such costs as a Court may award and shall be 
precluded from instituting any fresh suit in respect of such 
subject-matter or such part of the claim. 
(4) 
Nothing in this rule shall be deemed to authorize the 
Court to permit one of several plaintiffs to withdraw without the 
consent of the others.” 
 
10. 
 
Keeping the foregoing legal provision in view, there are 
some established factual points of the case that may be noted first. 
By the order dated 30.01.1957 Muhammad Nawaz withdrew his suit 
unconditionally without seeking permission to file a fresh suit. An 
oral compromise between Muhammad Nawaz and the defendants 
was cited by the former as the basis of the withdrawal of his suit but 
neither the terms of the compromise were stated before or recorded 
by the learned Trial Court nor was any defendant examined before 
the Trial Court to state or admit the terms of any compromise. The 
impugned mutation No.1147 dated 21.03.1951 remained in existence 
notwithstanding the compromise. Muhammad Nawaz did not file 
any proceedings to enforce the terms of his compromise. In other 
words, the impugned mutation and the unconditional withdrawal of 
C.A.446 of 2012 
8 
the suit satisfied the oral compromise and Muhammad Nawaz lived 
with it till his death in the year 1987.  
11. 
 
The amended plaint filed by the appellants claimed that 
in the oral compromise Muhammad Shafi and his four sisters 
accepted the impropriety of the impugned mutation No.1147 dated 
21.03.1951; that they also returned possession of the land inherited 
by them from the legacy of Faqir Muhammad deceased to 
Muhammad Nawaz. Even if those statements of fact are assumed to 
be correct, it may be observed firstly, that merely holding the 
possession of land cannot confer its title through prescription. [Ref: 
Maqbool Ahmad vs.  Hakoomat-e-Pakistan (1991 SCMR 2063)]. 
Secondly, the inaction and acquiescence of Muhammad Nawaz to 
challenge the impugned mutation No.1147 dated 21.03.1951 for 30 
years is evidence that it complied with his compromise. Thirdly, in 
the year 2000, when the appellants’ suit was filed, neither of the 
parties to the oral compromise survived to prove its terms. At best 
the appellants could bring hearsay evidence and that too after a 
delay of 43 years. In the said circumstances, it is a futile argument by 
the learned counsel for the appellants to ask for grant of an 
opportunity to the parties to lead evidence about the terms of the 
oral compromise. These facts establish that the withdrawal of the 
earlier suit by Muhammad Nawaz was unconditional or that the 
impugned mutation did not infringe any terms of the compromise 
claimed by him with the predecessor of the respondents. In the 
C.A.446 of 2012 
9 
circumstances, the later suit filed by the appellants on the same 
cause of action is barred under Order XXIII Rule 1(3) CPC. Reliance 
is placed upon Ghulam Rasool   vs.  Nusrat Rasool (PLD 2008 SC 
146), Shahid Mehmood  vs.  Afzal Mehmood (2011 SCMR 551) and 
Muhammad Yar  vs. Muhammad Amin (2013 SCMR 464).  
12. 
 
Be that as it may, there is another important principle of 
law laid down by this Court which is applicable to the facts of the 
present case. An heir, who is directly affected by a wrongfully 
recorded mutation of inheritance, fails to challenge such mutation 
for a considerable length of time until his death, thereby deprives his 
heirs of locus standi to dispute such mutation on the ground of his 
estoppel, abandonment of claim/cause of action. Reference in this 
regard is made to Abdul Haq   vs.  Surraya Begum (2002 SCMR 
1330), Kala Khan  vs.  Rab Nawaz (2004 SCMR 517) and 
Muhammad Rustam  vs.  Makhan Jan (2013 SCMR 299). The 
appellants’ suit is not maintainable under that principle as well.  
13. 
 
The argument of the learned counsel for the appellants 
that the aforementioned case law on locus standi is distinguishable 
on the facts of the present case because Muhammad Nawaz had not 
acquiesced to the impugned mutation but had once challenged the 
same does not carry weight. The forbearance by Muhammad Nawaz 
to dispute the impugned mutation on the basis of his oral compromise 
either constitutes the satisfaction of his claim or the abandonment to his 
grievance and cause of action. In either case, the result deprives the 
C.A.446 of 2012 
10 
appellants of their locus standi to assert and allege the forgone claim 
or entitlement. Finally, the judgments of the learned Trial Court and 
the learned Revisional Court were required to and have given their 
findings on the preliminary issue framed in the case. The avoidance 
by the learned Appellate Court to give its finding on that issue 
without giving reasons misdirects the proceedings. A short question 
of law is involved for which the requisite material was available on 
record for the learned High Court to decide the same in order to nip 
the appellants’ still born claim in the bud. Accordingly, we consider 
that the impugned Revisional and Trial Court judgments have 
arrived at the right conclusion that the suit filed by the appellants is 
barred by law. 
 
 
For the foregoing reasons, we do not find any merit in 
this appeal; as such the same is dismissed. No order as to costs.  
      
 
 
 
 
 
 
 
 
 
  J. 
 
 
 
 
 
 
 
 
 
 
  J. 
Islamabad,  
20.04.2016. 
Irshad Hussain /* 
 
 
 
APPROVED FOR REPORTING.  
 
