P L D 1989 Azad J & K 33 (PLP)

Ch. Muhammad Taj for Respondents. This appeal is directed against the judgment and decree of the District Judge, Mirpur, passed on 6‑6‑1987, whereby he, on appeal, setting aside the judgment and decree of Sub‑Judge, Dadyal, dated 31‑10‑1984, decreed the suit of Bostan, respondent No. 1 against Muhammad Sadiq, appellant and Ali Bahadur, pro forma‑respondent.

2. Briefly stated, the facts giving rise to this appeal are that Muhammad Sadiq, appellant, got in exchange from Ali Bahadur, pro forma‑respondent, land measuring 10 kanals 19 marlas, bearing survey numbers 198, 202, 203 and 204, situate in village Sanwala Piran, Tehsil Dadyal, through exchange deed dated 17‑6‑1982, on the basis of which mutation of the said land was also sanctioned in the name of the appellant. Bostan, respondent, instituted a suit against the appellant and Ali Bahadur, pro forma‑respondent, in the Court of Sub‑Judge, Dadyal, for declaration to the effect that the above exchange deed in respect of the suit land is illegal, void and in‑operative as against his rights and liable to cancellation, and as a consequential relief, prayed for the grant of decree for the possession of the suit land.

3. The case of the plaintiff‑respondent was that he had become the owner of the suit land on the basis of the decree dated 10‑11‑1974 having been passed in respect of it in his favour by Sub‑Judge, Dadyal and subsequent sanction of ate mutation in his name with the result that the pro forma‑respondent had no right or title in it so as to exchange the same with the land of the defendant‑appellant, The above suit was resisted by Muhammad Sadiq, respondent on the ground that the suit land belonged to Ali Bahadur, pro forma‑respondent on the basis of a decree a of pre‑emption granted in his favour in the year 1964 and, as much, the exchange‑deed executed by the said respondent in his favour in respect of it was quite lawful. It was also contended by him that the suit of the plaintiff was not maintainable by reason of the application of principle of waiver and estoppel.

4. The suit was dismissed by the trial Court vide its judgment and decree dated 31‑10‑1984 on the grounds that the pro forma -respondent was the owner of the said land by virtue of the pre‑emption decree passed in his favour by the competent civil Court vide its judgment and decree dated 19‑12‑1958 and its subsequent mutation sanctioned in his favour on the basis of the said decree, and that the plaintiff‑respondent's suit was also hit by the principle of res judicata as his similar former suit in respect of the suit land against the defendant‑appellant and the pro forma‑respondent had been dismissed by a competent civil Court.

5. The plaintiff‑respondent filed an appeal against the above and decree of the Sub‑Judge, Dadyal, dated 31‑10‑1984 District Judge, Mirpur, who, accepting the same, set aside judgment and decree of the Sub‑Judge and passed the prayed for in favour of the plaintiff‑respondent vide his judgment and decree which is the subject of this appeal.

6. I have heard the learned counsel for the parties and have also gone through the record of the case. It is contended by the learned counsel for the appellant that Ali Bahadur, pro forma respondent had obtained the pre‑emotion decree of the suit land on 19‑12‑1956 from the Court of Sub‑Judge, Dadyal, on the basis of which mutation of the same was also sanctioned in his name and, as such, being its owner, he was quite competent to transfer it to the defendant‑appellant. It is further contended by him that the pre‑emotion decree passed in favour of the respondent by the civil Court in the year 1974 in respect of certain land, including the suit land, did not affect the rights of the defendant‑appellant in the suit land already created by the aforesaid pre‑emotion decree of the civil Court as he was not a party to the case in which subsequent above pre‑emotion decree was passed in favour of the plaintiff‑respondent. It is further contended by the learned counsel for the appellant that the plaintiff‑respondent's similar civil suit‑against the appellant and pro forma‑respondent in respect of the suit land was dismissed by the civil Court as having been withdrawn and, as such, his present suit culminating in the passing of decree and impugned in this appeal was not maintainable.

7. The learned counsel for the respondent, on the other hand, has contended that the decree of pre‑emption passed in favour of the plaintiff‑respondent by the civil Court on 10‑11‑1974 had made him the owner of the suit land and since it was not got set aside by Ali Bahadur, pro forma‑respondent from civil Court, it was also binding on him, with the result that he could not transfer the suit land to the defendant‑appellant through the exchange deed dated 17‑6‑1982. It is further contended by him that the previous pre‑emption decree of the suit land in favour of Ali Bahadur, pro forma‑respondent had become a nullity in view of the subsequent pre‑emption decree in respect of it in favour of Bostan, respondent. It is also contended by him that the former suit instituted by the respondent against the appellant and the pro forma‑respondent in the civil Court was not decided on merits but was withdrawn by the respondent himself and, as such, the fresh suit by, him which resulted in the passing of the decree in his favour by the District Judge, was not barred as the doctrine of res judicata was not attracted to it.

8. I have given my due consideration to the above contentions of the learned counsel for the parties in the light of the evidence on the record. It‑ is undisputed as well as proved by the copies of the judgment and decree Ex. DF and Ex. DG that the Sub‑Judge, Mirpur, had decreed the suit of pre‑emption of Ali Bahadur, pro forma respondent in respect of the suit land against the vendees of the same vide his judgment and decree dated 19‑12‑1956 and that on the basis of the above decree, mutation of the same was also sanctioned in his name on 27‑2‑1963 vide mutation No.177 a copy of which is Ex. DJ. The above fact would show that Ali Bahadur was the owner of the suit land at the time of the execution of the exchange deed, dated 17‑6‑1982 whereby he transferred it to the appellant, in exchange of land belonging to him (appellant). The contention of the learned counsel for the respondent that the respondent had become the owner of the suit land by virtue of the pre‑emption decree passed in his favour by the civil Court vide its judgment and decree dated 10‑11‑1974 and the subsequent mutation sanctioned in his name on the basis of the said decree and, as such, the pro forma‑respondent had no title to exchange it with the appellant, has no merit in it. When the suit land was owned by the pro forma‑respondent on account of the decree of pre‑emption having been passed in his name before the passing o: the pre‑emption decree in respect of the same in favour of the respondent, the latter decree did not extinguish the ownership rights of the pro forma‑respondent in it already created in his favour by the aforesaid pre‑emption decree dated 19‑12‑1956 as he was never party to the suit in which pre‑emption decree was passed in the year 1974. When the pro forma‑respondent was already owner of the suit land, the sale of the same by one Muhammad Ashraf to Faqir Muhammad was not lawful and consequently the decree of pre‑emption obtained by Bostan, respondent in respect of it against the said vendee without impleading Ali Bahadur, pro forma‑respondent, party to the suit in which it was issued, did not nullify the previous pre‑emption decree of the same passed in favour of Ali Bahadur, pro forma‑respondent which had conferred the right of ownership of the said land on him. When the appellant was the owner of the suit land and he was not a party to the suit in which pre‑emption decree in respect of it was granted in favour of the respondent, there was no need under any law for him to get the above decree set aside as the same was not binding on him. In other words, in presence of the previous above decree in favour of the pro forma‑respondent, the latter above decree in favour of Bostan, respondent was of no legal value so as to make Bostan, respondent its owner in place of Ali Bahadur, pro forma‑respondent who was still the lawful owner of the suit land at the time of execution of the exchange‑deed on 17‑6‑1982. Since he was the owner of the suit land, he had lawfully transferred the same to the appellant by way of exchange and thus it cannot be said that the exchange‑deed in question was unlawful and liable to be cancelled and by holding so, the learned District Judge has committed an error.

9. Apart from the above ground, the suit of the respondent was liable to be dismissed being also not maintainable. The respondent, had also previously instituted a similar suit in respect of the suit land against the appellant and pro forma‑respondent which was dismissed. In this context, the learned counsel for the respondent has contended that the learned trial Court was wrong to hold that the dismissal of the previous suit operated as res judicata because the same was not heard and decided on merits but was withdrawn by the respondent. The above contention is correct to the extent that the dismissal of the former suit of the respondent did not bar the subsequent suit by the respondent by application of the doctrine o; res judicata but it was barred by virtue of the provisions of Order 23, Rule 1, clause (3), C.P.C., according to which where the plaintiff withdraws from his suit without permission of the Court, he shall be precluded from instituting any fresh suit in respect of such subject -matter or such part of the claim. Since the respondent had withdrawn a former similar suit in which the subject‑matter was the same as in) the present suit, he was precluded from instituting it in view of the above provision of law. In this view of the matter, the suit of the respondent in which the decree under appeal was passed, was not maintainable. For the reasons stated above, the judgment and decree of the District Judge, Mirpur, dated 6‑6‑1987 is set aside and that of the Sub‑Judge, Dadyal, dated 31‑10‑1984 is restored, with costs. A. A.348/H.C.A. Appeal accepted.