1999 PLP 1707 (CLC)

Khuda Bakhsh Baloch for Petitioner. S. Zafar Abbas Zaidi for Respondents. Date of hearing: 22nd May, 1998. Chandan son of Saeed Khan and Gul Marjan son of Nawab Khan of Adamzai, Lakki Marwat brought a suit against Mir Ahmed son of Gul Ahmed and 30 others (impleading Aurangzeb alias Aurang and 10 others. defendants Nos.32 to 43 as pro forma defendants); for a declaration to the effect that they had prescribed title to the suit land measuring about 99 Kanals. 10 Marlas on account of being mortgagees for the last more than sixty years through mutations of mortgage, sub‑mortgage and sale of equity of redemption.

2. The defendants contested the suit, filed written statement, upon which issues were framed and partial evidence of the plaintiffs was recorded when, on 5‑11‑1995 the defendants submitted an application for the dismissal of suit under section 11 of the C.P.C. The application aforesaid was submitted in the background that a similar suit was brought by Aurangzeb alias Aurang, the present pro forma defendant, against Gul Ahmed etc. the father of present defendants Nos. l and 2 for seeking the same relief of title through prescription of the same property. Such Suit No.131/1 of 1986 was dismissed by Civil Judge, Lakki on 26‑1‑1986, against which the appeal failed before the appellate forum. Aurangzeb etc. went in revision before the High Court which also was dismissed under number Civil Revision 2 of 1990, decided on 2‑3‑1992. It was unanimously held up to the High Court that due to the declaration of section 28 of the Limitation Act as repugnant to the Injunctions of Islam and due to the aforesaid section having been removed from the Act through the judgment of Shariat Appellate Bench of the Supreme Court in Maqbool Ahmed's case reported as 1991 SCMR 2063; no relief could be granted in favour of Aurangzeb and no title could be prescribed to the suit land in the absence of section 28 of the Limitation Act.

3. Both the Courts below considered the aforesaid suit of Aurangzeb alias Aurang as res judicata and declined to grant relief to the present plaintiffs Chandan and Gul Marjan. Chandan has come up in revision against the concurrent findings, dated 10‑6‑1996 and 17‑11‑1996 of the two Courts below.

4. A perusal of record of the two cases would indicate that the previous Suit No. 131/1 of 1986 was filed by Aurangzeb alias Aurang who is a pro forma defendant in the present case at Serial No.32 for whom the relief of prescription is also sought by the present plaintiffs. The parties are litigating under the same title. Chandan and Gul Marjan, the present plaintiffs in Suit No. 109/1 of 1994 are the pro forma defendants/respondents Nos.33 and 40 in Suit No.131/1 of 1986. In the circumstances of the present case, the matter is fully hit by section 11 of the C.P.C. and it appears that with the passage of about eight years the present plaintiffs have rejuvinated the cause of action by bringing about a change only in the name of the plaintiffs and by substituting the plaintiffs and the pro forma defendants for each other. Both the Courts below have rightly given a decision to the effect that the present suit is barred as res judicata.

5. Learned counsel for the petitioners stated that the judgment in Maqhool Ahmed's case 1991 SCMR 2063 is not applicable to the factum of prescription involved in the instant case because that judgment had the effect of deleting section 28 of the Limitation Act with effect from 31‑8‑1991 onward and had no application to cases where the parties had already prescribed title to the suit lane by efflux of time. If this argument was genuine, Aurangzb the plaintiff of the former Suit No. 131/1 ought to have had gone to the Supreme Court. It appears that the said plaintiff (pro forma defendant in the present case? remained contented with the verdict of the High Court and never filed any appeal before the Supreme Court. The judgment, dated 2‑3‑1992 in Civil Revision No.2 of 1990, Aurangzeb v. Gul Ahmad and others has, therefore, become final between the parties which are exactly the same in the present case. The present plaintiffs were pro forma defendants in the aforesaid Case No. 131/1 of 1986 and hence they also could have gone in appeal which they have not. Seen from any angle, the principle of res judicata is applicable and the previous judgment, dated 2‑3‑1992 of the High Court has become final between the parties.

6. A plain reading of the section 60 of Transfer of Property Act, would indicate that if a Court decree is not granted, the prescription is not matured, whereas, no decree can now be granted after 31‑8‑1991 It would he anomalous that a relief be granted now after the passage of eight years to the same party litigating under the same title to which the relief was refused concerning the same property up to the High Court For all such reasons, the concurrent findings of the two Courts below are upheld and the revision petition is hereby dismissed with no order as to costs. Q.M.H./M.A.K./292/P Revision dismissed