2002 PLP 300 (SCMR)

MUNIR A. SHEIKH, J.

This petition has arisen from a suit filed by the respondent for the recovery of possession of the property in dispute against the petitioner. It was pleaded in the plaint by the respondent that father of the petitioner was Priest Incharge of the Church to which this property was attached and he was given possession of the same tot the services rendered by him for the Church. The petitioner raised plea of adverse possession and claimed ownership on that ground and also claimed an amount of Rs.5,00,000 as compensation for raising construction over the property and making improvements. She also raised plea that the suit was barred by res judicata and also under Order 11, Rule 2, C.P.C.

2. The trial Court after framing issues reflecting the controversies arising from the pleadings of the parties allowed the parties to lead evidence. After considering the evidence elaborately and carefully, it (trial Court) came to the conclusion that the suit was neither barred by Order II, Rule 2, C.P.C. nor the same was barred by principle of res judicata nor the petitioner had succeeded in proving that she had become owner of the property by way of adverse possession as the possession of her father was permissive and also that no evidence had been led to prove that any amount was spent as claimed by the petitioner over the construction or improvement of the property. Through judgment dated 22-10-1990, the suit was decreed in favour of respondent.

3. The petitioner filed appeal before the Lahore High Court, Multan Bench, Multan which has been dismissed through the impugned judgment dated 24-1-2001 against which leave is sought.

4. Learned counsel- for the petitioner submitted that previously a suit was filed by the respondent in which no prayer was made for the recovery of possession of the property, therefore, the present suit was barred under Order II, Rule 2, C.P.C. and for the same reasons, it was also barred by res judicata.

5. Both the trial Court and the High Court had dealt with these aspects of the case in detail comprehensively and it has been held by the High Court that the previous suit was for the recovery of compensation of some property with which, the present suit had no nexus. It is well-settled law that the suit under Order II, Rule 2, C.P.C. would be barred only if in a previous suit, a relief which was available in relation to cause of action stated in the said suit but was not claimed. It is an admitted fact that the previous suit as not filed on the basis of the same cause of action, therefore, there was no question of application of Order II, Rule 2, .C.P.C. Learned counsel for the petitioner has not placed on record the copy of the plaint of the previous suit. He when questioned admitted that it was not produced in evidence in this case in order to establish that the present suit was barred by res judicata. The previous suit was admittedly dismissed for non-prosecution, therefore, the question of res judicata did not arise on this admitted fact, for section 11, C.P.C. was applicable if the previous suit had been decided on merits regarding the same issues which were directly and substantially in issue in the present suit which element has not been proved in this case. Learned counsel for the petitioner,' has not been able to point out any evidence except the statement of the petitioner as to the amount spent on the construction and improvement of the property therefore the findings of the Courts below on this issue also have not been shown to have suffered from any illegality such as misreading or non-reading of any material piece of evidence.

6. The possession of the father of the petitioner being permissive, therefore, it was required under the law if the petitioner wanted to claim ownership on the basis of adverse possession that the same had become adverse and if so from which point of time and as to how hostile title was claimed to the knowledge of the owners which evidence is lacking in this case, therefore, it was rightly held that the plea as to adverse possession had' also not been proved under the law. The permissive possession would continue to be permissive and could not be treated as hostile merely by affluse of time to the knowledge of the owner.

7. The findings of the two Courts below on pure questions of facts have not been shown to have suffered from any illegality or misapplication of law as regard principle of res judicata and applicability of Order II, Rule 2, C.P.C., therefore, we do not find any merits in this petition which is hereby dismissed and leave refused. S.A.K./M.A.K./I-33-S??????????????????????????????????????????????????????????????????????????????????? on dismissed.