P L D 1990 Supreme Court 1067 (PLP)

RUSTAM S. SIDHWA, J.‑‑‑This is a petition by Mst. Muhammad Bibi and :ethers, petitioners, seeking leave to appeal against the decision of a learned Single Judge of the Lahore High Court dated 17‑12‑1989 accepting the regular second appeal filed by the legal representatives of Lai deceased respondent.

2. The‑brief facts of the case are that one Kadar Dad was owner of 85 kanals 10 marlas of agricultural land in District Gujranwala. On his death, he was survived by his sister Mst. Mehran Bibi (the predecessor‑in‑interest of Mst. Muhammad Bibi, Mst. Rabia Bibi, Mst. Rasul Bibi, petitioners Nos. 1 to 3) and his brother Fateh Din, petitioner No.

4. Fateh Din, petitioner No.4, got the mutation of inheritance in respect of the whole land of Kadar Dad recorded in his name on 21‑5‑1954 as sole heir, to the exclusion of Mst. Mehran Bibi. The said Fateh Din then sold the whole land in favour of Lai, the predecessor‑in‑interest of the present respondents, through registered sale‑deed dated 28‑1‑1953. Feeling aggrieved by the registered sale‑deed dated 28‑1‑1953, Mst. Muhammad Bibi, Mst. Rabia Bibi and Mst. Rasul Bibi, petitioners Nos. 1 to 3, filed a suit for posession against Fateh Din and Lai in respect of their 2/9th share in 85 kanals 10 marlas as heirs of Kadar Dad on 21‑3‑1964 before the Civil Judge, Gujranwala. The suit was contested by both Fateh Din and Lai. During the proceedings, consolidation took place and the plaintiffs filed an application claiming 2/9th share in 153 kanals 6 marlas of land on the allegation that Lai had secured the said area in consolidation in lieu of the earlier area of 85 kanals 10 marlas which Fateh Din had sold to him. The learned Civil Judge, by judgment and decree dated 7‑4‑1966, decreed the suit to the extent of the plaintiffs' right of 2/9th share in 153 kanals 6 marlas of agricultural land left by Kadar Dad. The appeal of Lai respondent failed before the learned Additional District Judge, vide a judgment dated 1‑6‑1967. The second appeal of Lai respondent was also dismissed by the High Court, vide judgment dated 7‑6‑1967. Mst. Muhammad Bibi and others, petitioners Nos.l to 3, decree‑holders in civil suit of 1964 applied for execution, obtained the warrant of possession, which was executed, and constructive possession was delivered to the decree‑holders in joint Khata. Having come to know about the nature of the decree, Lai respondent filed an objection petition on 18‑9‑1970 to the effect that according to judgment and decree dated 7‑4‑1966 the decree‑holders were entitled to 2/9th share in 85 kanals 10 marlas and decree was ineffective against his other property which was his self‑acquired property. However, the objection petition was dismissed on technical grounds and Lai respondent was directed to file a declaratory suit.

3. On 9‑1‑1971, Lai respondent filed a suit for declaration to the effect that he was owner‑in‑possession of 143 kanals 6 marlas of land, that decree for possession passed by the learned Civil Judge, Gujranwala, dated 7‑4‑1966 in favour of Mst. Muhammad Bibi, Mst. Rabia Bibi and Mst. Rasul Bibi, petitioners Nos. 1 to 3, was illegal, without jurisdiction and contrary to the facts and was therefore not binding on him, with a prayer for permanent injunction restraining the said petitioners from interfering with his possession over the suit land.

4. The suit was resisted. The learned Civil Judge framed as many as 9 issues in accordance with the divergent pleadings of the parties. Issues were as follows:‑‑ (1) Whether the suit is barred by time? OPP. (2) Whether the suit is barred by res judicata? OPD. (3) Whether the plaintiff is estopped from bring this suit? OPD. (4) Whether the plaint does not disclose any cause of action? If so what effect? OPD. (5) Whether the suit is hit by the mischief of the provisions of section 42 of the Specific Relief Act? If so, what effect? OPD. (6) Whether this Court lacks jurisdiction to try this suit? OPD. (7) Whether the impugned decree dated 7‑5‑1966 is liable to be set aside for the reasons detailed in paragraphs Nos. 2 to 6 of the plaint? OPD. (8) Whether the defendants are entitled, to special costs under section 35‑A of CPC? If so, to what extent? OPD. (9) Relief.

5. The Civil Judge by judgment dated 9‑7‑1975 dismissed the suit. The Civil Judge came to the conclusion that the suit was barred by time. According to his conclusion, the limitation started from the date of decree i.e. 7‑4‑1966 and the suit should have been filed before 7‑4‑1969. On issue No. 2 regarding res judicata, the Civil Judge held that the suit was barred by the principle of res judicata. Issues Nos. 4 to 6 and 8 were decided in favour of plaintiff. As far as issue No. 7 was concerned, it was decided in favour of the plaintiff. It was held that in the decree sheet dated 7‑4‑1966 relating to the earlier suit, the self‑acquired property of Lai was wrongly included.

6. Before the first appellate Court arguments on issues Nos. 1 to 3 and 7 alone were pressed. The lower appellate Court dismissed the appeal on 12‑6 1979.

7. Being aggrieved by the above judgment, Lai respondent preferred a regular second appeal, which was accepted by a learned Single Judge of the Lahore High Court, who held that the respondent's suit was within time, that the rule of res judicata was not in his way and that Mst. Mehram Bibi, the predecessor‑in‑interest of petitioners Nos. 1 to 3, was only entitled to 19 kanals of land (i.e. 2/9th share of 85 kanals 10 marlas) and he, therefore, granted the declaration to Lal respondent that he was owner of 135 kanals 12 marlas of the balance land. Being aggrieved by this judgment, the petitioners have sought leave to appeal.

8. On behalf of the petitioners it is submitted that the rule of res judicata applied to the instant case and that the learned Judge has materially erred in holding to the contrary. It is further submitted that Mst. Mehram Bibi, the predecessor‑in‑interest of petitioners Nos. 1 to 3, was entitled to 1/3rd of the area of 85 kanals 10 marlas and at least this much area should be allowed to them.

9. So far as the question of res judicata is concerned, the same has been dealt with in some detail by the learned Single Judge and his view appears to be correct. The suit of 1964 related to the entitlement of Mst. Mehram Bibi in the estate of Kadar Dad which had been usurped by Fateh Din. It did not pertain to the determination of the title in respect of the self‑acquired property of Lal respondent. Issue No. 2 has, therefore, been correctly decided by the learned Single Judge. Regarding the second submission of the learned counsel for the petitioners, the same cannot be accepted, as Mst. Mehram Bibi and her successors through proceedings covered by two different suits only claimed 2/9th share of 85 kanals 10 marlas of the land which originally belonged to Kadar Dad and they cannot now improve upon their claim at the fagend of their litigation before this g Court. This submission, therefore, has no merit. There being no merit in this petition, leave is refused. AA./M‑1421/S. Leave refused.