1994 PLP 1725 (SCMR)

MUHAMMAD AFZAL LONE, J.‑‑‑This petition by the defendants in a suit for possession through partition, seeks leave to appeal from the judgment dated 1‑2‑1992, whereby their revision petition was dismissed by the Peshawar High Court, Peshawar.

2. The trial Court did not go into the merits of the case and disposed of the suit on the basis of its finding on Issue No. 6 formulated to cover the petitioners objection that the suit was barred by res judicata. This objection was founded on the ground that the respondents‑plaintiffs had earlier filed a suit for possession for the same land, which was decreed in their favour. In appeal filed by the respondents, challenging the dismissal of their suit, the learned Additional District Judge took the view that the previous suit was for possession and only symbolic possession was delivered to the respondents; that the subsequent partition suit was different in nature and character; the bar of res judicata was, therefore, not attracted. He thus, accepted the appeal and remanded the case to the trial Court with the direction to record findings on all issues and dispose of the suit afresh on merits. The High Court did not interfere with the judgment of the First Appellate Court. The reasons, which prevailed with it in dismissing the revision, are:‑‑ "In the present suit plaintiffs have come to Court on a different cause of action i.e. that they have alleged that the suit Khasra number has ill now turned into a vacant site as it falls within the limits of village Abadi and is neither used or suitable for cultivation purposes. It is further alleged that the plaintiffs wanted to construct upon the land for which the defendants had been approached to effect private partition which they denied. Such being the case it cannot said that the present suit is based on the same cause of action:"

3. Mian Shaukat Hussain, Advocate, enters appears for the petitioners and requests for adjournment, on the ground that the petitioners want to engage some senior counsel. We do not think that there is any justification for grant of adjournment. The request has, therefore, been declined. On the asking of the Court the learned counsel has argued the petition, but he could not create any dent m the reasoning which influenced the decision of the High Court. Indeed, the suit for partition is rested on altogether a different cause of action. We entirely agree with the view expressed by the High Court. In fact the extension of the rule of res judicata to the case in hand by the trial Court was wholly misconceived. There is no merit in this petition. It is dismissed and the leave prayed for is refused. AA./M‑1928/S Leave refused.