1998 PLP , (SCMR)

IRSHAD HASAN KHAN, J.

The petitioners seek leave to appeal against the judgment of the Peshawar High Court dated 3-11-1994 passed in Civil Revision No.319 of 1992.

2. The facts in brief are that plaintiffs/respondents filed a suit for possession in respect of the suit land measuring 86 Kanals, 5 Marlas against the defendants/petitioners. The suit was resisted by the petitioners/defendants. In view of the pleadings of the parties and the evidence led by them, the trial Court dismissed the suit vide judgment and decree dated 27-6-1988, which was reversed by the appellate Court vide judgment and decree dated 21-6-1992 by decreeing the suit in favour of the plaintiffs/respondents. The revision filed by the petitioners was also dismissed vide judgment dated 3-11-1994, on the ground that in the earlier round of litigation between the parties up to this Court, the claim of the petitioners for possession of the suit land on the basis of exchange had been totally rejected and that they cannot be permitted to re-agitate this plea in view of Explanation (iv) to section 11, C.P.C.

3. The learned counsel for the petitioners reiterated the plea that a decree for possession of suit land could not be passed without cancellation of previous exchange or by obtaining appropriate orders from the competent Court.

4. The contention is devoid of any force. This Court while refusing leave to appeal against the judgment dated 12-1-1983 of the Peshawar High Court whereby regular second appeal arising out of the same suit land was dismissed, vide order dated 23-4-1984 in Civil Petition for Leave to Appeal No.33-P of 1983, inter alia, observed as follows:-- "There is intrinsic evidence in the observations quoted above, which would show that the learned counsel for the plaintiff-petitioners gave up the claim with regard to the land described in prayer 'Alif' of the plaint. The reliance of the learned counsel on subsequent disclaimer in this behalf from the petitioners' side including the grounds of appeal submitted by the same learned counsel, is not enough to displace the assumption regarding the giving up of the plea. The same related to question of fact. We have not permitted the learned counsel to raise the same any further in this Court. Learned counsel remained unable to support his second plea that after the acquisition under the Land Acquisition Act, which has not been successfully challenged, the petitioners' option was not to seek remedy under the Land Acquisition Act. The prayer for possession of the land, which was the subject-matter of acquisition, was rightly refused. "

5. When faced with this, learned counsel for the petitioners frankly conceded that the suit land is the same which was subject-matter of acquisition as stated in the above-quoted judgment of this Court. The petitioners were not permitted to raise any claim for possession of the suit land in the previous round of litigation. They were, therefore, rightly precluded from re-agitating the plea for possession of the suit land on the basis of exchange as contemplated by Explanation (iv) to section 11, C.P.C.

6. The impugned judgment of the learned High Court is based on cogent reasons and suffers from no legal infirmity warranting interference by this Court in these proceedings. Consequently, leave is refused. A.A./R-14/S Leave refused.