1989 PLP 1949 (SCMR)

NAIMUDDIN, J.‑‑Respondent Khawaja Mir, since deceased and now represented through his legal representatives, filed a suit against Akbar Khan and others being suit No. 379/1 of 1979 for a declaration to the effect that he was in possession of the suit land and that the petitioners had never been in possession thereof. The petitioners also filed suit No. 264/1 of 1979 for declaration to the effect that they are in possession of the disputed property and have acquired the rights of occupancy tenants on the basis of payment of double Legan to the Provincial Government who is admittedly the owner of the disputed property. Both the suits were contested. In suit No. 379/1 of 1979, the defence was that the plaintiff (respondent herein) had earlier filed a suit in 1956, which was decided against him m 1959, therefore, the second suit was barred by the principle of res judicata. The trial Court, in suit No. 379/1 of 1979, had framed as many as seven issues, one of which namely issue No. 2 was with regard to the suit being barred by the principle of res judicata. The trial Court had decided this issue in favour of the petitioners and dismissed the suit by judgment dated 18‑3‑1986. The respondent feeling aggrieved filed an appeal before the Additional D1strict Judge, Kohat, which was also dismissed on 18‑11‑1986. However, the revision filed by the respondent was allowed by the High Court and it was held that the question of res judicata did not arise and since no finding on other issues was given the case was remanded to the learned Senior Civil Judge for decision on merits.

2. In suit No. 264/1 of 1979 filed by the petitioners, on the pleadings of the parties as many as eleven issues were framed. Two of the issues, namely issues Nos. 8 and 9 were as follows:‑ (8) Whether the plaintiffs are tenants‑at‑will of the suit property or owners? (9) Whether defendants Nos. 4, 6 to 9 are the owners or tenants‑at‑will of the suit property? OPD.

3. The trial Court decided both these issues in favour of the petitioners and against the respondents. The appeal of the respondents before the Additional D1strict Judge failed. The revision filed in the High Court was accepted and the case was remanded by a common judgment, which has been impugned herein.

4. It is submitted that in suit No. 264/1 of 1979, there was no issue as regards the suit being barred by the principle of res judicata and that this issue was raised only in suit No. 379/1 of 1979, which was decided in favour of the petitioners by the two Courts below. It. is pointed out that the High Court has allowed the revision on the ground that the record does not show as to how Akbar Khan came to be in possession of the property in dispute and that he was not a party to the earlier litigation between the parties and the share, which has been transferred in his favour according to record of rights for the year 1971‑72, was not in dispute therein. Accordingly it was found that prima facie the question of application of section 11, C.P.C. did not arise.

5. It is submitted that firstly, these findings are contrary to record and secondly, these findings relate to suit No.264/1 of 1979 as no such plea was raised in suit No.379/1 of 1979. It is further submitted that revision filed by the respondents was wrongly allowed against the concurrent findings of the two Courts below and that the acceptance of revision against such findings of fact in the other case is based on misreading and/or non‑reading of material documentary evidence available on the record of the suit and also annexed to this petition at pages 55‑61.

6. In brief, it is submitted that in the suit filed by the petitioners, there was no issue of res judicata and therefore, the revision has been wrongly allowed on a finding given on that issue and in the suit filed by the respondents the issue of res judicata was properly decided by the two Courts below and their concurrent findings have been set aside by the learned High Court on misreading or non- consideration of the material evidence.

7. The above submissions, inter alia, require consideration. Accordingly we grant leave in both the petitions. Security Rs.5,000 in each case.

8. On remand, further proceedings in the suits are stayed. M.A.K./R‑106/S Leave granted.