2016 PLP 69 (YLRN)

KH. IMTIAZ AHMAD, J.

Through the present civil revision under section 115, C.P.C. the judgment and decree dated 03.06.2004 passed by the learned Civil Judge Ist Class, Attock whereby he dismissed the suit and the judgment and decree dated 06.12.2004 passed by the learned Addl. District Judge, Attock whereby he dismissed the appeal, have been challenged.

2. In order to understand the real controversy between the parties it is appropriate to mention here the brief facts of the case. Initially Karim Bakhsh filed a suit against Sher Jang, his brother and the legal heirs of his other deceased brother for the partition. The preliminary decree in the said suit was passed on 27.2.1991 and the Local Commissioner was appointed for the auction of the property. On 16.6.1992 when the property was to be auctioned, the parties reached to a compromise and the written agreement (Ex.P1) was reduced into writing by the Court Auctioneer. One of the condition of the said agreement was that Sher Jang would transfer two marla land from khasra No.540 in favour of Karim Bakhsh through registered deed. It may be mentioned here that this two marla land was not the subject matter of the suit. In compliance of the said agreement, Sher Jang transferred the land in favour of Karim Bakhsh through registered sale deed dated 18.6.1992 (Ex.P3). Resultantly, the said partition suit was dismissed as withdrawn on 21.6.1992. Thereafter, Sher Jang filed a petition under section 12(2), C.P.C. challenging the order dated 21.6.1992 by which the suit was dismissed as withdrawn. This petition was accepted and the case was restored. Thereafter, the final decree was also passed on 14.12.2000. Petitioner, Sher Jang who had transferred two marla land in view of the said agreement filed a suit for possession on the ground that since the said two marla land was transferred to Karim Bakhsh in view of the compromise but since Sher Jang resiled from his compromise and moved a petition under section 12(2), C.P.C. so it was prayed that the possession of the said two marla land be handed over to him. It may be mentioned here that during the pendency of petition under section 12(2), C.P.C. also the said Sher Jang moved an application for the restoration of his possession of two marla land which was dismissed on the ground that he had right to file a civil suit in this behalf and thereafter, he filed a suit for possession as mentioned above. In the said suit, the defendant Karim Bakhsh had taken the plea that said two marla land was not transferred to him in view of the compromise but in fact he had purchased the said land and registered deed was in fact a sale deed. Both the parties produced the evidence in the said case and the learned trial court vide judgment and decree dated 16.10.2002 dismissed the suit. Sher Jang preferred the appeal which was also dismissed on merits vide order dated 02.11.2002. After failing to get back the possession through civil court once again Sher Jang filed a suit which is the subject matter of the present civil revision. In this suit the decree for declaration was sought that the registered sale deed was liable to be cancelled on the grounds mentioned above and the plaintiff was the owner of two marla land and the decree for permanent injunction and mandatory injunction was also sought for that Karim Bakhsh be directed to remove his structure from the land. At preliminary stage the suit was dismissed vide judgment and decree dated 21.7.2003 on the ground that it was barred under Order II, Rule 2, C.P.C. as well as section 11 of C.P.C. The present petitioner preferred appeal which was accepted vide judgment dated 10.11.2003 and the case was remanded back that on the preliminary issue the parties should be given opportunity to lead evidence and then the said issue be decided. The preliminary issue framed by the trial court reads as under:-

1. Whether the suit is barred by principle of Res judicata and Order II, Rule 2, C.P.C.? OPA Both the parties after remand of the case led the evidence on this issue consisting of statement of plaintiff as PW1 and documentary evidence from Ex.P1 to Ex.P

4. On the other hand, the defendant only produced the documentary evidence from Ex.D 1 to Ex. D

4. The learned trial court after hearing the parties decided issue No.1 in favour of the defendant and resultantly dismissed the suit vide judgment and decree dated 03.06.2004 and the appeal preferred by the present petitioner also met the same fate. Hence this civil revision.

3. The learned counsel for the petitioner vehemently argued that the prayer of declaration with regard to the registered deed should have been incorporated by the lawyer in the previous suit for possession but he omitted to do so and the plaintiff should not be penalized for that since it was the act of the lawyer. He placed reliance upon the case reported as Sherin and 4 others v. Fazal Muhammad and 4 others, 1995 SCMR 584 and Jawad Mir Muhammadi and others v. Haroon Mirza and others, PLD 2007 SC

472. He also vehemently contended that the two marla land was transferred to Karim Bakhsh only in view of the compromise when the Court Auctioneer reached at the spot for the auction of the property but said Karim Bakhsh had resiled and that is why he filed petition under section 12(2), C.P.C. so the plaintiff is entitled to get back his plot.

4. On the other hand, the learned counsel for the respondent vehemently supported the impugned judgments of both the courts below and placed reliance upon Hashim Khan v. National Bank of Pakistan, PLD 2001 SC 325.

5. Arguments heard. Record perused.

6. There is no denial of the fact that on the basis of same cause of action the plaintiff had previously filed a suit for possession. In this suit also the plea was the same that the sale deed was executed only in view of the compromise. In this suit the stand of the defendant was that he had purchased the said plot. In the said suit many issues were framed but the material issue which was issue No.1 reads as under:-

1. Whether the plaintiff is entitled to the decree for possession of suit land and permanent and mandatory injunction against the defendants as prayed for? OPP The parties produced the evidence and the evidence of the plaintiff was the same that the sale deed was executed in view of the compromise and even produced the copy of the said sale deed as Ex.P

1. The learned trial court while deciding issue No.1 observed as under:- "The plaintiff has contended that the land was transferred to defendant No.3 in view of compromise effected in a suit titled Karim Bakhsh v. Sher Jang, etc. and that compromise was set aside by the learned Senior Civil Judge as such this registered sale deed is also void, but the perusal of registered sale deed shows that there is no mention of any suit or compromise, the alienation was made unconditional for consideration of Rs.1000/-. It is well settled law that the documentary evidence exclude the oral evidence. The plaintiff has failed to prove this issue and the same is decided against him." The said suit was dismissed by the Civil Judge on 16.10.2002, copy of which is available as Ex.D

1. The Appellate Court also dismissed the appeal vide judgment and decree dated 25.11.2002 upholding the findings of the learned Civil Judge and the copy of the judgment of the Appellate Court has been produced as Ex.D

3. The perusal of both the judgments and the para quoted above from the judgment of learned Civil Judge shows that in the said suit the relief sought was the same that the registered sale deed was a void document but this was not accepted by the courts. The plaintiff when failed to get relief from the courts uptil the Appellate Court, he taking technical advantage filed the present suit for declaration directly challenging the said sale deed about which the courts had already given the findings. If the relief of declaration was not included in the previous suit then under Order II, Rule 2, C.P.C. the plaintiff is debarred to once again claim the said relief. The object of the provisions of Order II, Rule 2, C.P.C. is that any omission or failure to include any of the relief in the plaint operated as relinquishment of that claim. Party instituting the proceedings had to include all the reliefs flowing from main grievance, otherwise the omission was fatal, and as such, it was essential for the plaintiff to assert all claimable reliefs concerning the grievance of cause of action. Any such relief which flowed out of basic grievance if not claimed or omitted, then such party stood precluded from agitating such reliefs subsequently. Object of Order II, Rule 2, C.P.C. was to avoid splitting of claim and restrict multiplicity of litigation in the matter.

7. Section 11 of the C.P.C. also bars the filing of the present suit. The said provision of law clearly provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. In a previous suit the plea which has been raised in the present suit had already been raised and had been decided by the competent court of law till the Appellate Court. In this way, section 11, C.P.C. is also fully attracted to the present case and the present suit was hit by the principle of Res judicata.

8. In view of what has been said above, there does not appear any illegality in findings of both the courts below. The case law cited by the learned counsel for the petitioner have distinguishable facts. Resultantly, this civil revision has no force and same stands dismissed. ZC/S-2/L Revision dismisse