2020 PLP 817 (CLC)

SHAHID BILAL HASSAN, J.

Precisely, the petitioners instituted a suit for declaration with consequential relief of permanent injunction in respect of suit property measuring 81-kanals 17-marlas, detailed in the head note of the plaint, by maintaining that the property in dispute was allotted and confirmed through RL-II No. 473 dated 19.10.1963 to Khushi Muhammad son of Jan Muhammad, Rehmat Ali, Ahmed Din, sons of Dedar Bakhsh being Mukhbars and they became exclusive owners in possession of the subject property; Jan Muhammad died leaving behind the respondents Nos.1 to 9 as his legal heirs, Muhammad Bukhsh son of Gulab died before the creation of Pakistan and he was neither allotted nor confirmed any piece of land through RL-II No. 473 rather property was allotted to Rehmat Ali, Khushi Muhammad and Ahmed Din; Muhammad Bakhsh had no concern with the subject property. Khushi Muhammad, respondent No.1 pursued all the proceedings of acquisition of land and allotment thereof under complete trust of rest of the parties. Allegedly, the petitioners came to know after consulting the revenue record that respondent No.1 by way of fraud and misrepresentation without being competent and authorized, without orders of the competent authority, subsequent to the allotment order dated 19.10.1963 managed the entry of Muhammad Bakhsh deceased in the Record of Rights in order to get his land. Khushi Muhammad subsequently got the mutation of inheritance No.317 dated 31.05.1981 attested. Regarding this alleged fraudulent attestation of mutation of inheritance of Muhammad Bakhsh, litigation between the parties started and remained pending uptill this Court. It was contended that all the entries in the revenue record and the attestation of Mutation No.317 dated 31.05.1981 on the basis of fraudulent entries in RL-II are liable to be set aside being based on fraud, misrepresentation, illegal and ineffective against the rights of the petitioners, merit to be corrected in the revenue record. The suit was contested by the respondents Nos.1 to 9 while submitting written statement raising certain legal and factual objections. The learned trial Court after hearing arguments germane to maintainability of the suit, rejected the plaint under Order VII, Rule 11 of the Code of Civil Procedure, 1908 vide impugned order and decree dated 06.03.2018. The petitioners being aggrieved of the said order and decree preferred an appeal, but the same was also dismissed vide impugned judgment and decree dated 22.07.2019; hence, the instant civil revision.

2. Heard.

3. In the earlier suit titled "Khushi Muhammad and others v. Ahmad Din and others" matter relating to mutation No.317 dated 31.05.1981 as well as RL-II relating to Khata Nos. 472, 473, 474, 6, 7, 8, 9, 10, 486, 487 and 488 (subject matter in the present suit) was fully discussed and this Court while deciding C.R.No.1196 of 2006 observed:- '

9. There is no denial that the real controversy between the parties is with regard to the estate left by Muhammad Bukhsh who survived only Jan Muhammad predecessor-in-interest of the respondents. The respondents in their plaint mentioned the pedigree table of the parties which is not disputed by the petitioners. As per pedigree table Muhammad Bukhsh died in the year 1947 being issueless and he was survived by only Jan Muhammad. The respondents produced Nazir Ahmed employee of Qanungo office Toba Tek Singh as PW-1. In his statement he produced RL-II relating to khata Nos.472, 473, 474, 6, 7, 8, 9, 10, 486, 487 and

488. He also tendered certified copies of said RL-II from Exhibit P-1 to Exhibit. P-11. RL-II produced as Exhibit.P-8 relates to the entitlement of Muhammad Bukhsh deceased whose claim was confirmed as 159 units. The dispute between the parties arose on sanction of inheritance Mutation No.317 which was sanctioned in favour of Ahmed Din, Rehmat Din and Khushi Muhammad in equal shares. The said mutation was challenged by the respondents before the revenue hierarchy and vide order dated 31st of May, 1981 passed by the Collector, the correction of entries was made and the property was given to Jan Muhammad predecessor-in-interest of the respondents, who was the sole legal heir of deceased Muhammad Bukhsh.

10. In the light of the stance taken by the learned counsel for the petitioners that the estate admittedly belongs to Muhammad Bukhsh, which in all respect is very fair stance on his part, no cavil left that when there is no dispute with pedigree table then it was only Jan Muhammad predecessor-in-interest of the respondents who could inherit the estate left by Muhammad Bukhsh deceased. The petitioners have failed to bring on record any cogent evidence that the respondents or their predecessor-in-interest have ever surrendered their rights in their favour. Thus the question of estoppel, as agitated by the learned counsel for the petitioners is not attracted in the present case. The respondents were well within their right to claim the suit property.' After such conclusive observations, the petitioners did not further agitate the matter before the Apex Court. It is vivid from the above said observations that allotment and confirmation of the property in favour of Muhammad Bukhsh deceased and mutation of inheritance after his death was the subject matter of the previous litigation and was discussed and decided by the Civil Court as well as appellate and upheld by this Court. Thus, the learned Courts below have rightly reached to the conclusion that the fresh suit in respect of subject property which had already been decided is barred under section 11 of the Code of Civil Procedure, 1908, which provides:- '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 of the suit in which such issue has been substantially raised and has been heard and finally decided by such court.'

4. Apart from above, if for the sake of arguments, it is admitted that the petitioners did not challenge the subject matter in the present suit in earlier suit, even then the said cause of action was well available to them and omitting as well as relinquishing the said relief cannot be enforced through second suit because the second suit was not competent and barred under Order II, Rule 2 of the Code of Civil Procedure, 1908, which provides:- '

2. Suit to include whole claim.-(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Relinquishment of part of claim.-(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Omission to sue for one of several reliefs.-(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.' The above provision of law is much clear on the subject that when a plaintiff omits or relinquishes any part of claim he Shall not afterwards sue in respect of the portion so omitted or relinquished.

5. Rule 11 of Order VII, Code of Civil Procedure, 1908 provides that:- '

11. The plaint shall be rejected in the following cases:- a) where it does not disclose a cause of action: b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so: c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so: d) where the suit appears from the statement in the plaint to be barred by any law.' This provision of law asserts that when the plaint is barred by any law, the same will be rejected. In the present case, as has been discussed and stated above, the subject matter in present suit remained under discussion substantively and was finally decided upto this Court, reopening of the same under the garb of challenging the entries of RL-II, which were categorically discussed and decided, is not warranted and uncalled for.

6. In view of the above, the principle of res judicata fully attracts in this case and same has rightly been applied by the learned Courts below. There appears no illegality and irregularity in the impugned order, judgment and decrees warranting interference by this Court in exercise of revisional jurisdiction.

7. So far as the case law relied upon by the learned counsel for the petitioner i.e. Muhammad Chuttal v. Atta Muhammad through L.Rs. (2007 SCMR 373), Owais Ahmed Idris v. Syed Muhammad Waqar Uddin (PLD 2014 Sindh 465) and Mst. Zeba and others v. Sher Muhammad and others (2010 YLR 2011-Quetta), is concerned, the same has no relevance to the peculiar facts and circumstances of the case in hand; thus, it does not render any assistance or help to the petitioners' case.

8. For the foregoing reasons, the civil revision in hand being without any force and substance stands dismissed with no order as to the costs. ZC/A-106/L Revision dismissed.