P L D 1952 Lahore 82 (PLP)

S. A. RAHMAN, J.‑Faiz Rasul brought a suit for joint pos session of certain lands on the strength of two sale‑deeds in his favour against Barkat Ali and others The suit was resisted by defendants Barkat Ali and Imam Din only out of some 17 odd defendants. They pleaded, inter alia, that a previous suit lodged for possession by the plaintiff against them had been dismissed. It appears, however, that the previous suit had been decreed and not dismissed. The trial Sub‑Judge held that the second suit was barred by the principle underlying section 47 C. P. C. and dismissed the suit. On appeal, the learned Senior Sub‑Judge, Gujrat, reversed the decision. He held that the trial Court had made out a new case for the con testing defendants which they had themselves failed to set up in their written statement. This second appeal has been preferred on behalf of the contesting defendant, Barkat Ali. It is not denied that the previous suit was also for joint possession of the land involved in the present litigation. It is further not contested that the decree, which followed that suit, was never executed. Mr. Ghulam Abbas Jafri for the respon dent‑plaintiff, however, contends that the parties to the present suit were not all parties to the first suit, and he, therefore, argues that the previous decree does not stand in the way of Faiz Rasul plaintiff It is true that the fifteen other defen dants. besides Barkat Ali and Imam Din, were not parties to the previous suit. To that extent, therefore, the plaintiff's suit was maintainable. However, the position is different with regard to the claim against Barkat Ali and Imam Din. They were undoubtedly the defendants in the previous suit, which was decreed against them. The question then is whether a plea on the basis of section 47 Civil P. C. taken at the time of arguments in the trial Court could be allowed to be raised in these circumstances or not. To my mind this was a pure question of law on the facts which were proved on the record and the trial Court very rightly gave effect to this plea. If, of course, at that late stage, a mixed question of law and fact had been raised requiring investigation into facts, the plaintiff‑respondent could have successfully resisted the raising of such a question. The facts, however, are beyond dispute. I see no reason why a point should not have been allowed to be taken which is a pure point of law and goes to the root of the case. The learned Senior Sub‑Judge in second appeal took the view that even if section 47 Civil P. C. had been allowed to be invoked by the contesting defendants, it could not be urged as a bar to the second suit. In this connection, reliance was placed by him on an authority of the Bombay High Court reported as Vasudeo Atmaram Joshi v. Eknath Balkrishna Thith (1911) 35 Bom. 79. In that case a decree had been obtained by R and D for possession, against A, but no execution was taken out within the period of limitation fixed by law. Subsequently, A was dispossessed by a trespasser V, who sold the land to B, the latter in turn mortgaging it in favour of E. Certain judgment creditors of R and D, sought to attach this property in execution of their decree against them. They were met with the plea that the property did not belong to R and D. A suit was then lodged by the judgment creditors under section 283 of the old Code of Civil Procedure, and it was held by the High Court of Bombay that this suit could be tried as if it were a suit for possession by the judgment debtors. The main question, however, discussed in that case was whether on the facts found, Article 142 to 144 of the Schedule to the Limitation Act governed the case. The point involved in the present appeal was not directly considered. I do not think, therefore, that the ruling relied upon by the lower appellate Court was very much in point. The Bombay High Court itself, in a subsequent ruling reported as Balaram Gulabchand v. Jigan Lal Patil (141 I C 269), held that if a decree for possession was allowed to become barred by time, though the title of the decree‑holder may not have been extinguished, the right could not form the basis of a second suit for possession. In that ruling, reference was also made to (1911) 35 Bom. 79, but merely to support the proposition that though the remedy may be barred, the title was still subsisting. Mr. B. Z. Kaikaus on behalf of the appellant has cited a number of authorities in support of the view taken in the subsequent Bombay ruling. Reference inter alia may be made to Fakira v. Pir Bakhsh (A I R 1917 Lah. 11‑S. B.) Khub Ram v. Surat (A I R 1917 Lah. 364‑D.B), Sasi Sekhareshwar v. Lalit Mohan (A I R 1925 P C 34), Jugal Kishore v. Manaka Singh (A I R 1939 Pat. 260‑D B), Ramanand v. Jai Ram (A I R 1921 All. 369‑D B), Ramaswami Nathan v. Muthiah Chetti (A I R 1925 Mad. 279‑D B) and Hafiz Bahaud‑Din v. Mst. Fateh Bibi, 16 P R 1893‑D B). These authorities undoubtedly support the stand taken by Mr. Kaikaus. I am therefore inclined to accept the view that the previous decree for possession having been allowed to become barred by time, a second suit for possession could not be instituted in the face of the provisions of S. 47 Civil P. C. No other point was taken in this appeal. The result of the above discussion is that the decree of the 'lower appellate Court must be varied by dismissing the suit as against Barkat Ali and Imam Din defendants. The decree will, however, stand with proportionate costs throughout, against the remain ing defendants, who are co‑sharers in the joint khata. In the circumstances of this case I, leave the appellant and his brother Imam Din on one side and the plaintiff on the other to bear their own costs throughout against each other. K. M. A. Appeal partly accepted.