1973 PLP 270 (SCMR)

ANWARUL HAQ, J.‑This petition for special leave to appeal has arisen out of a suit filed by the present petitioner for a declaration that he was the owner in possession of Shamlat land, measuring 6 kanals and bearing Khasra No. 128, situate in village Ormal Dheri, and as such the defendants or any other co‑sharer were not entitled to receive Batai from him or to interfere with his possession. He had also prayed that the decree granted by the revenue Court in favour of the defendants for recovery of their share of the produce be declared to be invalid and ineffective against him. The suit was dismissed by the trial Court on the 9th of June 1971 on the finding that the plaintiff was not in Hissa Dari possession of the suit land. The petitioner's appeal was dismissed by the learned Additional District Judge, Mardan. Thereafter, he filed a second appeal in the High Court at Peshawar, which was, however, treated as a revision petition in view of the amendment introduced in section 102‑B of the Code of Civil Procedure by the Law Reforms Ordinance, 1972. By an order made on the 4th of December 1972, a learned Judge of the High Court dismissed the revision petition on the ground that the matter stood concluded by a concurrent finding of fact recorded by the two Courts below. In support of this petition, it is contended that the Courts below have erred in holding that the, petitioner was not in Hissa Dari possession of the land in dispute. It is next submitted that in any case being a co‑sharer in the Shamlat land he could not be called upon to pay Batai to another co‑sharer. There is no merit in these submissions. The question whether the petitioner was in Hissa Dari possession of the land in dispute or not is obviously a question of fact and it has been decided against the petitioner by all the Courts below. In arriving at their 9 findings the Courts have examined the entries appearing in the revenue records. No fault can, therefore, be found with this finding. It also appears that the petitioner had previously instituted a similar suit with regard to several Khasra numbers Including the one now in dispute, and in that suit it was decided that he was not in Hissa Dari possession of this Khasra number. The learned Additional District Judge, who dismissed the first appeal of the petitioner, was right in observing that the finding in the previous suit would operate as res judicata against the petitioner. Finally, the entries in the revenue records showed that the petitioner had in fact entered upon the land as a tenant‑at‑will under the respondents. That being so he could not repudiate that relationship simply on the ground that he was also co‑sharer in the Shamlat. For the foregoing reasons, the petition fails and is hereby dismissed. Leave refused.