1989SCMR1801 (PLP)

USMAN ALI SHAH, J.‑‑Leave to appeal has been sought by the petitioner against the judgment of the Peshawar High Court, dated 3‑12‑1988, whereby Civil Revision of the respondents against the orders of the Civil Judge, Mardan dated 27‑6‑1981 and District Judge, Mardan, dated 6‑5‑1982, was accepted. The facts in brief of the case are that Muhammad Akram etc. respondents herein had brought a suit for possession of land measuring 4 Kanals 16 Marlas out of Khasra No.494 and 3 Kanals 14 Marlas out of Khasra No.393 against Rahmatullah petitioner who is now dead and is represented by his legal heirs, on the ground that he had trespassed and illegally occupied the said land. The petitioner contested the suit and in his written statement he took the plea that the suit is time‑barred and he has a matured title of the suit land by adverse possession. He alleged that suit No. 18/1 Min brought by him was decided on 21‑7‑1973 against the defendants/respondents in favour of the petitioner, the execution of which could not be filed within the prescribed time limit and was refused by the executing Curt vide its order, dated 14‑12‑1977. The petitioner took the plea that the suit in hand is hit by the principle of res judicata and the respondents are estopped to pursue the suit. On the pleadings of the parties different contesting issues were framed by the learned trial Judge who after recording the evidence dismissed the suit of the respondents. Their appeal before the District Judge, Mardan also failed. Being aggrieved the respondents filed civil revision before Peshawar High Court, Peshawar. A learned Single Judge of the High Court who heard the revision held that the suit in hand of the respondents was not hit by the provisions of section 11 of the C.P.C. and the principle of res judicata could not be applied to the suit of the plaintiffs/respondents. The learned High Court vide its judgment dated 3‑12‑1988 set aside both the impugned judgments of the trial Judge and District Judge and decreed the suit of the plaintiffs/respondents. The learned counsel for the petitioners vehemently contended that the suit of the plaintiffs/respondents was in respect of the very suit land which was the subject‑matter between the same parties in a previous Suit No.203/1 of 1973 which makes the present suit hit by the provisions of section 11 of the C.P.C. and the learned High Court was legally not justified in reversing the findings of fact of the two Courts below on Issues Nos.4 and

6. The question raised by the learned counsel for the petitioners makes the case arguable which requires examination of this Court. Leave to appeal is, therefore, granted. Security is Rs.5,

000. Appeal is to be prepared on the present record and the parties are allowed to file additional documents, if any. Status quo is to continue till the final disposal of the appeal. M.A.K./R‑96/S Leave granted.