2025 PLP 1017 (YLR)

Muhammad Faheem Wali, J.

This civil revision filed under Section 115 of the Civil Procedure Code, 1908 is directed against the judgment and decree dated 16.02.2009 passed by learned Additional District Judge-III Haripur, whereby appeal of the petitioners against the judgment and decree dated 20.05.2007 passed by learned Civil Judge-I Haripur has been dismissed.

2. Brief but relevant facts of the case, as spelt out from contents of the civil revision, are that petitioners / plaintiffs had filed a suit for declaration and permanent injunction against the respondents / defendants in respect of the land, fully detailed in heading of the plaint, on the ground of their being owners in possession of the suit land while the latter had got no concern with it. They had also challenged entry of the suit land declaring it as Shamilat Dhaka Charagah in Wajib-ul-Arz, prepared during consolidation proceedings of 1965-66, being wrong and ineffective upon their rights. On being summoned, respondents Nos. 1 to 6/ defendants appeared and submitted cognovits by conceding the claim of petitioners / plaintiffs; whereas rest of the respondents/defendants Nos. 7 to 52 appeared and contested the suit by filing their written statements along with an objection that the matter in issue had earlier been decided by competent courts of jurisdiction, thus, sought dismissal of the suit on the ground of its being hit by the principle of res judicata. During pendency of the suit, the respondents/ defendants Nos.7 to 52 had submitted an application for rejection of the plaint under Order VII Rule 11 C.P.C., which was allowed vide order dated 24.05.2003 and the suit was dismissed. Felt aggrieved, the petitioners /plaintiffs preferred an appeal, which was allowed by remanding the case back to learned trial court with direction to decide the subject matter on the basis of evidence after affording opportunity to both the parties. A full dressed trial was held and the learned trial after recording evidence and hearing learned counsel for the parties dismissed the suit vide impugned judgment and decree dated 30.05.2007. Dissatisfied with the findings of learned trial court, the petitioners / plaintiffs filed an appeal, which also met the same fate vide impugned judgment and decree dated 16.02.2009. The petitioners have assailed both the judgments and decrees of the courts below through this civil revision.

3. I have heard arguments of learned counsel for the parties and gone through the record with their able assistance.

4. The moot point for consideration before the court is that whether issue involved in the matter had earlier been decided by the courts of competent jurisdiction and whether the suit land, challenged in this petition, is one and the same, as contended by learned counsel for the respondents.

5. In order to retrieve from the ambiguity, this court deems it appropriate to firstly discuss the earlier proceedings conducted by the courts of competent jurisdiction and thereafter to see the nature of prayer made in this petition, so as to reach at a just conclusion. A cursory glance over the earlier suit bearing No. 329/1 of 1984 divulges that the plaintiffs therein had asked for declaration to the effect that the land bearing suit Khasra No. in the old Misl-e-Haqiyat for the year 1947-48, 1073/1012, 1011, 1076, 1067, 1078, 1017, 1081, 1036 measuring 2693 Kanals 04 Marlas and the present Khatas Nos. 977, 978, 979, 980, 981, 982, 983, 984, 985, 986, 1023 and 1024 with same measurement, mentioned above, situated at village Noordi was stated to be their ownership and the right of grazing was free to public as the land in question was not only uncultivatable but also not partitioned, which suit was contested by the defendants therein, however, at the end of the trial the suit was dismissed, whereagainst appeal was filed, which was allowed and civil revisions, filed against the judgment of the learned appellate court, were dismissed, which, in turn, was never further challenged, thus, attained finality as amongst the parties. Similarly, a look at the suit filed by the present petitioners also divulges that the petitioners / plaintiffs also sought declaration and permanent injunction in respect of the land comprising Khasra No. 983 measuring 100 Kanals 03 Marlas situated at Noordi. After a full dressed trial, the learned trial court dismissed the suit of the petitioners / plaintiffs on the ground of its being hit by principle of res judicata, to which the learned appellate court also concurred.

6. It transpires from the record that against the present plaintiffs Nos.1 and 2, cited as defendants Nos.27 and 26 respectively present defendants had earlier filed a suit for declaration that they are having a right to graze their cattle in the suit property according to the Wajib-ul-Arz and entries in the Revenue record mentioning the suit property as Khud Kasht are wrong. As stated in the preceding para that the dispute has already been decided and attained finality but the then defendants Nos.26 and 27 (plaintiffs Nos.1 and 2 herein) again brought the same matter before the court by challenging the entries of Wajib-ul-Arz, being Dhaka Charagah rather than Dhaka Rakh. As far as the entries of Wajib-ul-Arz are concerned, the same carries presumption of truth because Wajib-ul-Arz is part of the Record of Rights and strong, unimpeachable evidence is required to counter and rebut such entries. The grazing rights of the inhabitants of the locality are duly embodied in the Wajib-ul-Arz and no evidence has been provided from either side suggesting any changes in the consistent entries of Wajib-ul-Arz, therefore, without any fear of contradiction it can be safely held that the suit property is Dhaka Charagah and not Dhaka Rakh and the entries pertaining to Khud Kasht were wrong which were rightly corrected by the order of the court in execution petition as a result of the decree passed earlier.

7. Perusal of the previous litigation reveals that the entries to the extent of Khud Kasht in the revenue record qua number Khasra 983 was challenged claiming it to be Dhaka Charagah which has already culminated into a decree in favour of the present defendants, therefore, the matter in issue, the parties, cause of action and parties in both the suits are the same which has been finally adjudicated and decided upon by the court of competent jurisdiction is hit by the principle of res judicata and cannot be re-opened.

8. Last but not the least, the petitioners through the present suit have challenged the entries of Wajib-ul-Arz for the year 1965/1966 by filing a suit for declaration in the year 2000 which makes the suit of the plaintiffs /petitioners hopelessly time barred.

9. Learned counsel for the petitioners was heard at substantial length but he failed to point out any illegality or irregularity in the impugned findings of the courts below, warranting interference of this court in limited revisional jurisdiction. Resultantly, this civil revision, being bereft of any merit, is hereby dismissed. MQ/189/P. Revision dismissed.