2011 YLR 2969
[Quetta]
Before Abdul Qadir Mengal, J
AKRAM and 3 others ---Petitioners
Versus
NAZAR ALI and others ---Respondents
Civil Revision No.247 of 2002, decided on 5th August, 2011.
Civil Procedure Code (V of 1908) ---
----Ss.11, 115 & O. VII, R.1 ---Specific Relief Act (I of 1877), Ss.12 & 54 ---
Declaration of title and injunction ---Rejection of plaint ---Res judicata, principl e of---
Plaint filed by plaintiff's was rejected by Trial Court on the principle of res judicata ---
Validity ---Original suit lying between the same parties on the same subject -matter had
already been finally decided through which the contention of' plaintiff s was rejected
that they were the only legal owners in possession of suit property ---Subsequent suit
was hit by section 11, C.P.C. which was a legal objection and the same could be
considered and decided at any stage of proceedings ---Revision under section 115,
C.P.C. filed by plaintiffs was not maintainable as the suit of plaintiffs was hit by section
11 C.P.C. ---Revision was dismissed in circumstances.
Saleem Lashari and Waseem Shahid for Petitioners.
Mujeeb Ahmed Hashmi for Respondents.
Date of hea ring: 29th July, 2011.
JUDGMENT
ABDUL QADIR MENGAL, J. --This Civil Revision Petition has been preferred
against the judgment/decree dated 28 -4-2001, passed by the Civil Judge, Chamman, and
against the judgment and decree dated 14 -6-2002, passed by t he learned Additional
District Judge, Pishin, whereby, the suit as well as the appeal preferred by the
petitioners/plaintiffs were dismissed.
2. Brief facts leading to file, the present Civil Revision Petition are that,
petitioners/plaintiffs filed a sui t for declaration, cancellation of mutation entries and
permanent injunction with regard to land situated in Mohal Mouza Lehr, Tehsil
Chamman, District Killa Abdullah, with averments; the petitioners/plaintiffs, since their
forefathers are cultivating and in possession of their lands, however, during the
settlement operation, year 1963/64, some portions of the disputed land falling under
Khasra Nos.113/1, 114, 115, 215, 218, 219, 225, and 226 Mohal Mouza Lehr, Tehsil
Chamman, District Killa Abdullah, were w rongly entered in the names of
respondents/defendants and their fore -fathers, which was not in the knowledge of the
petitioners/plaintiffs. However, when the petitioners/plaintiffs came to know about the
wrong entries, when, the Civil Suit No.31 of 2000 ti tled as Muhammad Essa and others
v. Abdul Hakeem and others filed by the respondents/defendants. It was further averred
that the, respondents Nos.1 to 16 are the owners of only 22 acres in Khasra Nos.54 and
56, but rest of the property belongs to petitione rs/plaintiffs. It was further contended
that, the name of respondents Juma son of Attaullah, Bismillah, Sheikh sons of Kareem,
Amanullah, Habibullah sons of Khuda -e-Dad, Paindi son of Saeedo, Ghulam
Muhammad son of Muhammad Shareef, Abdul Razzaq son of Ali Jan and Khudai Dost
son of Dilbar have wrongly been mentioned in the Revenue Record, as such, the
petitioners/plaintiffs prayed that: --
(a) They are the owners of the land bearing Khasra Nos. 113/1, 114, 115, 215,
218, 219, 225 and 226, situated" at Moh al Monza Lehr, Tehsil Chamman,
District Killa Abdullah.
(b) Declaring that the plaintiffs are in peaceful possession of the land in
question and the same is being cultivated by the plaintiffs.
(c) Declaring that the entry in the name of defendants of t he land bearing
Khasra Nos. 113/1, 114, 115, 215, 218, 219, 225, 226 are wrong, illegal
and without any lawful justification.
(d) Declaring that the revenue entry with regard to the land in question is
liable to be cancelled and the same may be reverted in the names of the
plaintiffs.
(e) Directing the defendants Nos.1 to 16 for transfer of the land in question
in the names of the plaintiffs.
(f) Restraining the defendants from transferring, alienating, mortgag ing the
land in question to any other pe rson.
(g) Any other relief, which may deem fit and proper in the circumstances of
the case may also be awarded.
(h) Cost of the suit may also be awarded to the plaintiffs.
3. The respondents/defendants, filed their written statement raising some lega l
objections including objection of res sub judice that, the suit of petitioners/ plaintiffs hit
by provisions of section 10, C.P.C. as already, a suit is pending in respect of the same
subject -matter between the same parties for partition and ownership. T he
respondents/defendants further argued that, the disputed land jointly owned by the
respondents, petitioners and same' is also jointly recorded property in the names of
respondents and petitioners. In this regard, a partition application has been filed b efore
the revenue authorities, but the petitioners/ plaintiffs to defeat the proceedings of the
revenue authorities have filed the present suit. The Fard -e-Haqeeat or record of the
right, jointly coming to the name of all the petitioners and the respondent s. A suit for
partition is already filed and all the issues of present suit of the petitioners/plaintiffs are
in issue in that matter between both the parties, therefore, the present suit of the
petitioners/plaintiffs is liable to be set aside.
4. Mr. Sa leem Ahmed Lashari, Advocate, present for petitioners while Mr. Mujeeb
Ahmed Hashmi, Advocate, present for respondents.
5. I have heard counsel for the petitioners at length, so also, the counsel for the
respondents Mr. Mujeeb Ahmed Hashmi, Advocate, was heard. It may be pointed out
that, initially, on 28 -4-2001, the suit of the plaintiffs was rejected under section 7 Rule
11, holding' that, issues of the previous suit entirely related to the contents of the civil
suit in hand, therefore, no cause of acti on accrued to the petitioners/plaintiffs, as such,
the present suit is not tenable and same is rejected. The above order of the Civil Judge
was challenged by the petitioners/plaintiffs before the Additional District and Sessions
Judge, Pishin, vide Civil A ppeal No.23 of 2001 and the learned Additional District and
Sessions Judge. Pishin, set aside the judgment and decree dated 28 -4-2001, vide her
judgment dated 29 -6-2001, with the following direction or decree:
"The impugned order, decree (dated 28-4-2001 ) is illegal and is set, aside hereby,
with the directions that decide the case after obtaining written statement, framing
of the issues and leading evidence from both sides in accordance with law.
Appeal is accepted accordingly."
The respondents / defen dants challenged the remand order of the learned Additional
District and Sessions Judge dated 29 -6-2001, before this Court and this Court vide Civil
Revision No.212 of 2001 set aside the judgment of Additional District and Sessions
Judge, Pishin, with the following observations: ---
"The subsequent suit for declaration, cancellation of Mutation entries and
perpetual injunction was instituted by the defendants in the earlier suit and 50
others against the petitioners, out of whom the petitioners Nos.2, 8, 1 1, 15, 16 and
18 were the plaintiffs in the earlier suit. In the subsequent suit the claim of the
plaintiffs/private respondents was that they are owners in possession of the land
bearing Khasra Nos. 113/1, 114, 115, 215, 218, 219, 225 to 233, 235, 237, 24 1, 254
and 256 bearing Khewat and Khatooni Nos.54/56, situated in Mahal and Mouza
Lehr, Tehsil Chaman, District Killa Abdullah since the time of their forefathers
and revenue entries also appear in their names and in the names of their
forefathers in the r ecord of rights, but during the revenue settlement/operation of
the area carried out in the year 1963 -64 some portions of the land bearing Khasra
Nos. 113/1, 114, 115, 215, 218, 219, 225 and 226 were wrongly and illegally
entered in the names of the petiti oners or their forefathers despite of the fact that
the private respondents are in the active physical possession of the same and the
petitioners/defendants have no concern with these lands nor they are in
possession of the same. Further their case was tha t consequent upon institution of the
suit by petitioners Nos.2, 8, 11, 15, 16 and 18 they came to know about the adverse
entries having been made in the favour of their forefathers out of whom, except
defendants Nos.17 and 21 they are the owners in possess ion of the land measuring
22 acres, bearing Khasra Nos.254 and 256, situated in Monza and Mahal Lehr, Tehsil
Chaman, District Killa Abdullah, but the defendants in connivance with the revenue
officers were successful in obtaining wrongful revenue entries i n their favour in
respect of rest of the suit lands. Also, it was pleaded that the dispute between the
parties was set at rest through arbitration proceedings and by means of award dated 5 -
6-1999 the issue was resolved finally by the Messrs Molvi Muhammad Shafi. Further
the case of the respondents/plaintiffs was that after coming to know about the adverse
revenue entries the petitioners were approached for correction and reversal of the
wrong entries but they declined to accede to the request. On these averments the
subsequent suit was instituted wherein the reliefs reproduced in Para No. 5 above,
were claimed. Petitioners being defendants in the subsequently instituted suit
contested the suit as well as application for interim relief on various grounds of f acts
and law. Besides other preliminary objections, objections were taken that the suit was
hit under Order VII Rule 11, C.P.C. as well as the same is liable to be stayed in
view of the provisions of section 10, C.P.C. and is barred by time. On 6 -4-2001 th e
private petitioners being the defendants in the subsequent suit, filed a Misc.
Application under Order VII, Rule 11, C.P.C. seeking for rejection of the plaint on the
ground that in the earlier suit instituted by them the parties are directly and
substan tially at issue in respect of the same subject -matter in respect whereof in the
earlier suit issue No.5 was recast and an additional issue No.6 was framed. The
private respondents by means of their rejoinder dated 14 -4-2001 contested the
application mainly on the ground that their suit was not hit under Order VII Rule 11,
C.P.C. as a valid cause of action accrued to them against the petitioners/ defendants
and that the parties were not directly and substantially at issue in respect of the
subject -matter of the earlier suit. After hearing the parties the learned trial Court by
means of order dated 28 -4-2001 held that the suit of the private respondents was not
maintainable in view of the provisions of Order VII Rule 11, C.P.C., accordingly; the
same was rejec ted under the aforesaid Order on the ground that no cause of action
accrued to the plaintiffs to institute the suit. This order was set aside on appeal filed
by the respondents and the matter was remanded by the learned appellate court with
the direction t o the trial court to frame issues out of pleadings of the parties and to
proceed with the case in accordance with law. Perusal of " the impugned appellate
order operating part whereof has been reproduced in para No.5 above, will go to show
that the learned appellate court in fact itself disposed of the appeal in a haphazard and
perfunctory manner without applying its mind to the facts of the case and did not
determine as to whether the suit subsequently instituted was without any valid cause
of action or wa s hit under provisions of Order VII, Rule 11, C.P.C. nor did it even
consider keeping in view the pleadings of the parties in both the suits and the issues
framed by the trial court in the earlier suit in order to find out as to whether the
subsequent suit was liable to be stayed or otherwise, hence; the impugned appellate
judgment being absolutely defective and suffering from legal improprieties cannot
sustain, consequently; the same is set aside. As the entire matter was open in appeal
before the appellat e court therefore not only that it was obligatory for the appellate
court, rather; a legal duty was caste on it to have considered and examined in depth
whether the subsequent suit was hit under any provision of Order VII, Rule 11, C.P.C.
or the same deser ved to be stayed in view of the provisions of section 10, C.P.C.
But as another development has taken place that the earlier suit i.e. Civil Suit No.31
of 2000 was decreed in favour, of the plaintiffs vide judgment and decree dated 17 -7-
2001 passed by the learned Civil Judge, Chaman, therefore, examination and
determination of the question as to whether the subsequent suit was liable to be stayed
under section 10, C.P.C.. having become infructuous need not be dilated upon except
that the appellate court bef ore whom the entire matter in the light of the pleas taken in
the application filed under Order VII Rule 11, C.P.C. would be open for
consideration and determination and the decree passed in the earlier suit by the
learned trial court would not affect the exercise of the jurisdiction by the appellate
court to decide the appeal afresh after hearing the parties while deciding the question
as to whether the subsequent suit was hit under any provisions of Order VII, Rule 11
or section 11, C.P.C. in view of the decree passed in the earliest suit by the learned
trial court on 18 -7-2001.
Thus in view of the above discussion and reasons the appeal filed by the private
respondents against the judgment/decreed dated 28 -4-2001 shall be deemed as
pending on the file o f the learned Additional District and Session Judge, Pishin
which shall be disposed of after hearing the parties within one month on its own
merits and strictly in accordance with law. The result is that the impugned
Appellate Judgment/Decree is set aside and this Civil Revision Petition is partly
allowed in the above terms, leaving the parities to bear their own costs."
6. Thus, in the light of above, the matter was sent to Additional District and Sessions
Judge, Pishin, who vide her judgment/decree date d 14 -6-2002 upheld the judgment and
decree of Civil Judge, Pishin, dated 28 -4-2001.
7. Learned counsel for the petitioners mainly contended that, under Order VII, Rule 11,
C.P.C., the suit of the plaintiffs cannot be dismissed or rejected, as the suit of the
plaintiff well shows that, there is a cause of action accrued to the petitioners/plaintiffs
and the petitioners suit could be consolidated along with suit filed by the respondents
and validly could be decided, but here in the present circumstances his suit or matter
was heard not at all and wrongly dismissed under Order VII, Rule 11, C.P.C. Learned
counsel further argued that, the Additional District and Sessions Judge, Pishin, wrongly
has upheld the judgment/decree of Civil Judge, therefore, both the judgments/decrees
are liable to be set aside and matter be sent again for leading evidence and decision in
accordance with law.
8. The learned counsel for the respondents/defendants opposed the contention of the
learned counsel for the petitioners/plaint iffs and stated that, once the original suit with
regard to partition already has been decided against the petitioners/plaintiffs in Civil
Suit No. 31 of 2000, therefore, the present suit becomes infructuous and as such, the
same is liable to be dismissed.
9. After hearing both the sides, I am of the view that, though technically both the
judgments and decrees of the trial Court and as well as the Appellate Court are not
correct, being referring the Order VII, Rule 11, for rejecting and dismissing the sui t, but
at the same time, the conclusion drawn by the both Courts below, vide judgment/decree
dated 28 -4-2001, and 14 -6-2002 are legally correct, which do not require to be
interfered in the circumstances .of the matter, because the original Suit No.31 of 2 000
lying between the same parties on the same subject -matter already has been finally
decided and through which, the contention of the petitioners/plaintiffs was rejected that,
they were the only legal owners in possession of the suited property. So being , the
present matter has hit by the section 11 of C.P.C., which is a legal objection and same
could be considered and decided at any stage of the proceedings, therefore, in view of
above, the present petition is not tenable, as the suit of the petitioners is hit by the
section 11 of the C.P.C. -Furthermore, there is weight in the contention of the learned
counsel for the respondents/defendants that, the original issues in question already have
been decided vide Suit No.31 of 2000 and the Civil Revision No.24 5 of 2002, therefore,
the present suit, of the petitioners has become infructuous. Thus, being above, the
present petition has no force, same is dismissed with no order as to cost.
M.H./80/Q Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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