1999 PLP 1409 (CLC)

2. Briefly stated the facts are that the plaintiff/petitioner filed a suit for recovery of Rs.7,700 against the defendant/respondent on account of use and occupation of the property alleged to have been encroached upon by him. The suit was resisted by the defendant/respondent, wherein he raised various preliminary objections and repudiated the contentions of the plaintiff/petitioner. The trial Court framed the following issues:‑‑ (1) Whether the plaintiff has no locus standi? O.P.D. (2) Whether this Court has no jurisdiction to entertain the suit? O.P.D. (3) Whether the plaintiff is estopped by his conduct to bring the suit? O. P. D. (4) Whether the present suit is hit by section 10 of C.P.C.? If so its' effect? O. P. D. (5) Whether the suit is not maintainable in its present form? O.P.D. (6) Whether the plaintiff is entitled to recover Rs.7,700 from the defendant as prayed for? O.P.P. (7) Relief. In support of their respective stands, both the parties produced evidence and 1‑inallv the suit was decreed vide judgment and decree, dated 12‑9‑1982. The defendant/respondent felt aggrieved of the said judgment and decree and filed an appeal which was accepted by the learned Additional District Judge, Sialkot vide judgment and decree, dated 7‑11‑1984'. The plaintiff/petitioner has felt aggrieved if the said judgment and has filed the instant revision petition.

3. Arguments have been heard and record perused.

4. The only point which requires determination is if the plaintiff/petitioner is the owner of the property regarding which he has filed the instant suit for the recovery of Rs.7,700 on account of use and occupation on the part of the defendant/respondent. To prove his contention the plaintiff/petitioner has relied upon order, dated 25‑4‑1979 whereby an application for interim injunction in a suit for permanent injunction filed by the present respondent against the present petitioner was dismissed and he was held to be an encroacher of the suit property. Later on, the said suit was got withdrawn on 28‑4‑1979. The stand of learned counsel for the petitioner is that as the defendant /respondent has been held to he an encroacher over the suit land vide order, dated 15‑4‑1979 and he also withdrew his suit on 28‑4‑1979, so the plaintiff/petitioner proves to be owner of the suit property. He further contends that the trial Court has not framed any issue regarding the ownership of the plaintiff/petitioner regarding the owner property in dispute. In further contends that as the matter regarding owners stands adjudicated upon vide orders referred above, so by applying principle of res judicata the appellate Court was not justified to hold that the plaintiff; petitioner was not owner of the suit property. He, thus, submits, that the Judgment under revision is liable to be set aside.

5. Conversely, contention of learned counsel for the defendant /respondent is that provisions of section 11 of Code of Civil Procedure are trot attracted in the instant case as the earlier suit for permanent injunction filed by the present petitioner against the present respondent was not adjudicated upon on merits. He submitted that unless and until the matter is decided on merits, provisions of section

11. Code of Civil Procedure cannot be invoked and relied upon Ghulam Nabi and others `v. Seth Muhammad Yaqub and others PLD 1983 SC

344. He, thus, argued that by mere producing copies of orders, dated 25‑4‑1979 and 2R‑4‑1979, plaintiff/petitioner could not prove his ownership. He thus contends that trial Court was not justified in decreeing the suit and order of appellate Court dated 7‑11‑1984 is in accordance with law.

6. Arguments have been heard and record perused.

7. The plaintiff/petitioner filed the instant suit for the recovery' of Rs.7,700 against the defendant/respondent, claiming himself to be owner of the suit property. The plaintiff/petitioner has based his claim on the order, dated 75‑4‑1979 which has been passed in a suit for permanent injunction filed by the defendant/ respondent against the plaintiff/petitioner. He has not brought on record any independent documentary evidence to prove his entitlement over the suit property. The stand of learned trial Judge that as the defendant/petitioner had been adjudged to be an encroacher vide order. dated 25‑4‑1979 so the plaintiff/ respondent proves to be owner of the suit property is not legally correct. The mere dismissal of an injunction petition, filed in a suit for injunction, does not confer proprietary right over the other party. Even the withdrawal of a suit does not operate as res judicata, for the reason, if for nothing else, that there was no adjudication on merits. Reliance is placed on Ram Mal v. Upendra Datt and another AIR 1929 I_ah. 710 and Nand Lal v. Mt. Lakhmi AIR 1939 Lah. 414.'

8. In the light of facts enumerated above, it is proved that plaintiff/respondent is not owner of the suit property and trial Court was not right in decreeing his, suit. The appellate Court has rightly passed the impugned judgment and decree setting aside the same. There is no force in the instant petition and the same is hereby dismissed. Q.M.H./M.A.K./K‑92/L Revision dismissed.