1994 PLP 1856 (SCMR)

‑‑‑‑S. 11‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Res judicata, principles‑‑‑Applicability‑‑‑Land in question, in previous suit between the parties was proved to be non‑ancestral and defendant was declared to be absolute owner thereof‑‑‑Such finding had attained finality as also the finding that plaintiffs were not proved to be the collaterals of defendant‑‑‑In subsequent suit appreciation of evidence undertaken by High Court and conclusions reached by it that principles of res judicata applied in the circumstances of the case were unexceptionable‑‑‑Contention that S. 11, C.P.C. was not applicable because the promulgation of Muslim Personal Law (Shariat) Application Act, 1962 had given fresh cause of action to the petitioner, was without substance‑‑‑Plaintiffs had thus, failed to make out a case warranting interference in the concurrent findings of Courts below‑‑ Leave to appeal was refused in circumstances. S.M. Tayyab, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners. Ehsanullah Lilla, Advocate Supreme Court and S. Abul Aasim Jafferi, Advocate‑on‑Record for Respondents. Date of hearing: 27th March, 1994. MANZOOR HUSSAIN SIAL, J.‑‑‑The petitioners seek leave to appeal from judgment and decree dated 7‑7‑1992, passed by the Lahore High Court, dismissing R.SA. No. 551/1967, filed by the petitioners. The petitioners on 9‑6‑1965, instituted suit for declaration that they being collaterals of Mst. Sardaran and Shihan are entitled to inherit 3/8 share of their estate as heirs. The learned trial Judge on 7‑7‑1966, dismissed the suit holding that the suit was hit by the principle of res judicata as previously the petitioners except Mst. Fazalan had instituted a suit on 15‑12‑1954, in respect of the same land, which was dismissed on 30‑7‑1956, by the learned Senior Civil Judge, Sargodha, holding that the plaintiffs in the suit were not proved to be collaterals of Mst. Sardaran and Shihari. The judgment and decree passed by the learned Civil Judge, on 7‑7‑1966, was maintained in appeal on 7‑2‑1967, before the first appellate Court. The Regular Second Appeal, was also dismissed vide impugned judgment passed by the Lahore High Court. Hence this petition. In support of this petition, learned counsel for petitioners contended that the principle of res judicata was not attracted in the circumstances of the instant case, because the promulgation of Muslim Personal Law (Shariat) Application Act, 1962, whereby the limited estates under the Customary Law were terminated gave fresh cause of action to the petitioners. The next contention advanced by learned counsel for petitioner was that the learned lower Courts were wrong to hold that Mst. Sardaran was absolute owner of the land. It was submitted that Mst. Sardaran was limited owner, and on her remarriage, her limited interests under Customary Law stood terminated, the petitioners inherited the estate as her collaterals. We have considered both the abovementioned contentions but find no merit in them. In the previous suit the land in question was proved to be non ancestral. Mst. Sardaran was declared absolute owner thereof and that finding attained finality. Similarly Salehon, Rehma plaintiffs could not prove themselves to be near collaterals of Mst. Sardaran and Shihan. Admittedly they were brothers of Mst. Fazalan, therefore, like them, she could not inherit the estate left by Mst. Sardaran as her collateral. The appreciation of evidence undertaken by the learned Judge in the High Court and the conclusion reached by him that the principle of res judicata applied in the circumstances of the 'instant case are unexceptionable. In our view, the petitioners failed to make out a case warranting interference in the unanimous findings of the Courts below holding that the petitioners are not collaterals of Mst. Sardaran and Shihan as also that the suit was hit by the principle of res judicata. This petition is without merit and leave to appeal is, therefore, refused. A.A./S‑856/S Leave refused.