1986 PLP 340 (CLC)

S.M. Masood for Petitioner. Facts giving rise to this civil revision are that a bungalow and some shops, situated in Chiniot, District Jhang, were owned by one Rai Bahadur Basant Lal Kapoor (Malik Basant Lal). After Independence, the property was taken over by the Deputy Custodian of Evacuee Property Jhang. On this, the owner of the property made application, under section 18 of the Evacuee Property Ordinance, 1949, which was accepted and it was declared by the Deputy Custodian that‑the property was non‑evacuee. After the death of the owner, proceedings were undertaken by the Deputy Commissioner, Jhang, for treating the property as having escheated to the Government. These proceedings were opposed by the petitioner, Dr. Muhammad Ismail. It was urged by him that he was in possession of the property as a tenant since 1939 and was paying only Rs.5 per month under an oral agreement and that he was also competent to build the property according to his choice. He further stated that after 1962 he had been depositing the rent in the Office of the Rent Controller and that the shops were constructed by him in the year 1956 at the expense of Rs.25,000. It was also urged by him that the owner had a wife and children who lived in Dera Ismail Khan and, therefore, the principle of escheat did not apply. Certain legal objections were also taken. After considering the facts, it was held by the Deputy Commissioner that Dr. Muhammad Ismail had no right to claim the property or occupy it and he had, therefore, been in illegal possession of the same. He declared the property as having escheated to the Government and resumed it. He also directed the Assistant Commissioner, Chiniot, to take over its possession. In addition, he called upon the petitioner to deposit the rent realised by him since 1960. 2. Order of the Deputy Commissioner was challenged by the petitioner by filing Writ Petition No. 162 of 1976 before this Court. It was pleaded by him that the Deputy Commissioner had no jurisdiction to take over the property without permission of the Government. It was also urged by him that the heirs of Rai Bahadur Basant Lal Kapoor were living in India. During hearing of the writ petition, it was found that the petitioner had submitted an application to the Deputy Commissioner, on 5th January, 1976, for desealing of the property on the ground that the deceased owner had left some heirs in India but this petition was summarily dismissed by a short order on 28th January, 1976. It was also submitted by him that he could not be ejected from the property as he was a tenant. The writ petition was, therefore, allowed on the ground that there was no judicial determination of the application, dated the 5th January, 1976. The said order was, therefore, set aside and the case remanded for fresh decision of the said application. 3. After remand of the case the Deputy Commissioner again dismissed application, dated the 5th January, 1976, by his order, dated the 17th March, 1976. He did not agree with the alternative plea taken by the petitioner in another application, submitted by him on 10th March, 1976, that he had no objection to being considered as a tenant. Order passed by the Deputy Commissioner on 17th March, 1976 was assailed by the petitioner by means of Writ Petition No. 811 of 1976. The only ground on which the order was challenged was that the property had not escheated to the Government. The other portion of the order by which application, dated the 10th March, 1976, for being treated as a tenant, was dismissed was not attacked. The writ petition was dismissed on the ground that the impugned order of the Deputy Commissioner was based on finding of fact which could not be disturbed in exercise of Constitutional jurisdiction. 4. Order passed by the learned Judge in Chambers on Writ Petition No. 811 of 1976 was challenged by the petitioner by filing Intro‑Court Appeal which was heard by a Division Bench of this Court consisting of the then Chief Justice, Mr. Justice Muhammad Iqbal and Mr. Justice Aftab Hussain (as he then was). 5. While deciding the said appeal, the learned Division Bench did not find anything wrong with the order of escheat. In regard to the plea of tenancy, which had also been raised during the course of hearing of Intro‑Court Appeal, it was held by the learned Division Bench that the question of tenancy was barred by the principle of constructive res judicata. Observations made by the learned Division Bench in this behalf read as follow:‑ "The learned counsel lastly argued that the order finding the appellant to be a trespasser was contrary to the evidence on record. We regret that we cannot go into this question. This was a question which should have been raised and mooted out in writ petition No. 162/1976. It does not appear to have been raised during arguments on that petition. It is for this reason that the High Court did not set aside or quash the order of the Deputy Commissioner, dated 3‑12‑1975 by which the appellant had been held to be in illegal possession. The only order which was held to have been passed without lawful authority was the order, dated 28‑1‑1975 and the matter was remanded only for consideration of the points raised in the application dated 5‑1‑1975. It is not denied that the question of tenancy was not raised in application dated 5‑1‑1975. It is on the other hand clear from the order in Writ Petition No. 162 of 1976 that the only question that was raised in that application, was that the deceased had left some heirs who were living in India and the property did not, therefore, vest in the Government. Clearly the question of tenancy was not raised therein. In view of the order in Writ Petition No. 162 of 1976 the question about the tenancy cannot be allowed to be taken in the subsequent writ petition. This matter would be barred by the principle of constructive res judicata. Moreover it appears that although the Deputy Commissioner in his order impugned in Writ Petition No. 811 of 1976 had dismissed the application of the appellant, dated 10th of March, 1976 for treating him as a tenant, but this portion of the order was not challenged in the writ petition nor was any argument on that question addressed before the learned Judge in Chamber. This point cannot be allowed to be raised at the appellate stage." 6. Thereafter, the petitioner filed a suit, against the Province of the Punjab, for a declaration to the effect that he was occupying the disputed property as tenant and that he could not be declared as a trespasser by ignoring his tenancy. He also claimed Rs. 7,000 as damages on account of mental strain, financial loss, and loss of reputation. By way of consequential relief, he prayed for mandatory injunction directing the defendant to deseal the property and hand over its possession to him. The suit was dismissed by a Civil Judge of Jhang, inter alia, on the ground that it was not maintainable. This finding was recorded on the basis of above observations of the learned Division Bench. The petitioner went in appeal before the District Judge, Jhang, but without success. He has, therefore, come up in revision to this Court. 7. It was contended by learned counsel for the petitioner that since the question of tenancy was not decided by any Court, his suit was not hit by the principle of res judicata. 8. As indicated above, the question of tenancy was raised by the petitioner before the learned Division Bench, which decided his Intra Court Appeal, and it was held that the said question was barred by the principle of res judicata. In this way, the question of tenancy was decided by this Court before the filing of suit by the petitioner which is based on his plea of tenancy. A perusal of section 11 of the Civil Procedure Code would clearly indicate that the principle of res judicata comes into play not only in regard to a matter which has been raised and decided in an earlier suit but also bars a question which ought to have been raised in the earlier suit but is not agitated therein. The question of tenancy was not raised in the first writ petition and, therefore, as observed by the learned Division Bench, it was barred by the principle of constructive res judicata. Bar referred to by the learned Division Bench would operate not only qua the subsequent writ petition filed by the petitioner but also qua any other legal proceeding to be initiated by him. 9. In the recent past, law has been well‑settled on the point that if any matter is decided by a superior Court in exercise of any jurisdiction, it cannot be re‑agitated by invoking original jurisdiction of a subordinate civil Court. Muhammad Chiraghud Din Bhatti v. The Province of West Pakistan, and others 1971 S C M R 447; Muhammad Shafi and another v. Muhammad Bakhsh and another P L D 1971 Lah. 148 and Syed Mir Ahmed Shah v. The Pakistan and 2 others P L D 1979 Lah. 599 are some of the precedent cases in point. 10. As explained above, the question of tenancy was decided by this Court while disposing of Intra‑Court Appeal and, therefore, the said question could not be raised by the petitioner before the learned Civil Judge by filing the suit giving rise to this revision. I, therefore, agree with the learned lower Courts that the said suit was not maintainable. 11. Learned counsel did not address arguments on any point other than the one relating to the maintainability of the suit which has been dealt with just above. 12. Resultantly, this civil revision fails. It is dismissed in limine. M . Y . H . Petition dismissed.