1998 PLP 2636 (SCMR)

SH. IJAZ NISAR, J.

Leave is sought against the judgment dated 26-2-1996, passed by the Lahore High Court, Multan Bench dismissing Civil Revision No.463 of 1993 filed by Sher Muhammad, petitioner herein.

2. The facts, in brief, are that Sher Muhammad petitioner, being sub tenant of one Nazar Hussain, contested for the grant of proprietary rights. He obtained a favourable order from the Assistant Commissioner. Mailsi. on 4-10-1981, but the Collector, Vehari, vide order dated 13-9-1982 allotted the land in dispute to Amir Ali, respondent No.2 herein, under Islamabad Oustees Scheme. The petitioner ultimately approached the Board of Revenue. which though declared him to be ineligible to obtain the land, but remanded the matter to find out as to whether it fell in the Islamabad Oustees Schedule. He challenged the order of the Board of Revenue in Writ Petition No.225 of 1985, which was dismissed on 18-3-1985, with the following observations:-- "Even otherwise Member Board of Revenue has considered the entitlement of the .applicants and found against them. Applicants were not the 'lessees of the State land. They claimed to be sub-tenants. In that capacity they were not held entitled to grant of ownership rights by learned Member Board of Revenue and rightly excluded from the contest. I have gone through the Scheme (published in PLD 1979 page 84, Punjab Provincial Statutes). The provisions do not lend support to the cause of the applicants. The applicants, therefore, are not possessed of any right to get the land which has been allotted to the Islamabad Oustees. Order passed by Member Board of Revenue suffers from no error."

3. The Collector, in pursuance of the remand order dated 30-10-1984, of the Board of Revenue, held that the suit land fell within the Islamabad Oustees Schedule. In consequence, the hierarchy in the Revenue Department allotted the land in dispute to Amir Ali respondent.

4. The petitioner challenged the orders of the Revenue Authorities by filing a civil suit, which was decreed in his favour by the Senior Civil Judge, Vehari, on 30-6-1991. The respondent filed an appeal against the said judgment, which was allowed by the learned Additional District Judge, Vehari, vide judgment dated 18-5-1993. Resultantly, the judgment and decree passed by the Civil Court was set aside and the suit filed by Sher Muhammad was dismissed. The order of the learned Additional District Judge was challenged by Sher Muhammad in the High Court in civil revision which was maintained and the revision was dismissed on 26-2-1996. Hence, this petition.

5. It is contended that the petitioner had proved that the land in question did not fall in the Islamabad Oustees Schedule, that he was held to be eligible for the grant of proprietary rights by the Assistant Commissioner/Collector, Mailsi, vide order dated 4-10-1981, and that the finding given by the learned High Court in the writ petition filed by the petitioner would not constitute res judicata against him.

6. The respondent's plea was that since the petitioner was a sub-tenant under a lessee of five years lease scheme, he was not entitled to acquire the proprietary rights, and further that the land in dispute had been allotted under the Islamabad Oustees Scheme, the provisions of Notification, dated 3-9-1979, were of no avail to the petitioner. It was further maintained that the Board of Revenue by its order dated 30-10-1984 had excluded the petitioner from contest and had remanded the matter to the Collector Vehari for ascertaining some other points. The learned Collector, after complying with the order of the Board of Revenue and ascertaining the points in issue, again allotted the land to Amir Ali respondent, which was assailed by the petitioner before the High Court in writ petition which was dismissed on 18-3-1985. As the eligibility of the petitioner had since been adjudicated upon by the High Court, he was precluded from instituting a fresh suit. ,

7. The petitioner had suppressed the order dated 18-3-1985 of the High Court and did not make any mention of it in the suit filed by him subsequent thereto. After a positive observation of the High Court about his entitlement to the grant of ownership rights, how could he re-agitate the matter in the Civil Court. 'The highest forum. in the Revenue hierarchy i.e. Board of Revenue had for valid reasons excluded him from the contest which had been affirmed by the High Court, but still the petitioner had the audacity to challenge the order of the Board of Revenue in the Civil Court. The suit was clearly hit by the principle of res judicata and the Civil Court should not have re-opened the controversy because the eligibility and claim of the petitioner had been finally decided up to the highest level.

8. In the circumstances discussed above, we do not find any substance in the petition and dismiss the same. A.A./S-86/S Leave refused.