1990 PLP 1532 (CLC)

‑‑‑‑0.11, R.2‑‑‑Omission to sue for one of several reliefs‑‑‑Effect‑‑‑Plaintiff having earlier filed a suit for permanent injunction against defendant with regard to same property wherein no relief either for declaration or for specific performance of agreement to sell was claimed, his present suit for declaration relating to same property was barred by provisions of 0.11, R.2, C. P. C. Zafar Iqbal Bajwa for Appellant. Ch. Ata Ullah for Respondent No.2. Date of hearing: 19th December, 1989. This is plaintiff's appeal under section 100, C.P.C. against the judgment and decree of the Civil Court dated 8‑2‑1986 which was affirmed in appeal by the Additional District Judge on 22nd May, 1988 whereby the suit filed by the appellant was dismissed.

2. The dispute between the parties relates to a plot of land measuring about 3 Marlas bearing No.G‑961, situated inside Yakki Gate, Lahore. Admittedly this plot was evacuee in nature and had been provisionally transferred in favour of Muhammad Sadiq respondent No.l. The appellant claimed that the transferee had agreed to sell the plot in question to him on 3rd May, 1971 and had received a part of the consideration. It is further averred that later on the balance amount was also paid and the appellant had as such become owner of the plot in question. He consequently filed a suit for declaration claiming ownership over the plot in dispute. The suit was resisted by respondent No.l on the plea that though he had entered into an agreement with the appellant but it was never acted upon nor did the appellant perform his part of the contract and no payment whatsoever was made in this behalf. In his separate written statement, respondent No.2 averred that respondent No.l had surrendered his rights in respect of the plot in question in his favour and a Permanent Transfer Deed was issued by the Settlement Department to him. On the basis of the evidence led before it, the trial Court held that the appellant had no title to the property and he had failed to prove the payment of the balance amount of consideration by him to respondent No.l and that there was no proof that possession had been transferred under the agreement by respondent No.l to the appellant. It was further found that respondent No‑2 was the transferee from the Settlement Department of the property and his title could not be interfered with. The suit filed by the appellant was also held to be barred by Order 2, rule 2 of the C.P.C. in view of the earlier suit filed by him for permanent injunction in which he had failed to claim the relief of declaration or specific performance. As a result of these findings, the suit was dismissed by the trial Court. Aggrieved, the appellant filed an appeal which was however, dismissed by the Additional District Judge. 3. 1n the present appeal, a preliminary objection has been raised by the learned counsel for the respondent that before the present suit was filed by the appellant, respondent No.2 filed a suit for possession of the property against the appellant on the basis of his title. This suit was decreed by the trial Court as also the Additional District Judge. The appellant had thereupon filed Regular Second Appeal No.128/88, which was, however, withdrawn. The learned counsel for the respondent submitted that the decree and judgment of the Additional District Judge in the suit for possession has become thus final and conclusive and operates as res judicata as the matter in issue in both the suits is directly and substaintially the same. Confronted with this position, learned counsel for the A respondent was not in a position to dispute the correctness of these submissions of the learned counsel for the respondent. In this view of the matter, the appeal is liable to be dismissed on this short ground alone.

4. Even on merits, there is hardly any justification for interference with the judgments and decrees of the two Courts below. It has been found as a fact by both the Courts after duly appraising the evidence on the record that the appellant could not prove that he had paid the balance amount of consideration to respondent No.l in pursuance to the agreement for sale or that possession was transferred to him under this agreement. No receipt whatsoever evidencing the payment of the amount in question was produced by the appellant and the oral evidence which was duly appraised by both the Courts was held to be not worthy of any reliance. No valid objection can therefore be taken to the view formed by the trial Court as also the lower appellate Court that the appellant had failed to perform his part of the agreement and could not claim any title on the basis of the same. It is also to be noticed that the property stands duly transferred by the Settlement Department to respondent No.2. In these circumstances, the suit of the appellant could not succeed.

5. It is evident from a copy of the plaint, Exh. D‑3 (reconstructed as Exh.D‑4) that the appellant had earlier filed a suit on 8‑10‑1971 for permanent injunction against respondent No.l with regard to the same property in which no relief either for declaration or for specific performance of agreement to sell was claimed. In these circumstances, there is considerable force in the objection that r the present suit was barred by Order 2, rule 2, C.P.C. Reference in this connection may be made to Aziz Muhammad and others v. Mst. Hajran Bibi and another 1987 S C M R

527. As a result of the above, this appeal has no force. It is dismissed leaving the parties to bear their own costs. A.A./B‑195/L Appeal dismissed,