ABDUL SHAKOOR PARACHA, J.--- Petitioners Ghulam Hassan etc. Who are successors-in-interest of Sher Khan son of Mawaz, instituted a suit for declaration to the effect that they are owners-in- possession of land measuring 18 kanals, 2 marlas comprising Khasra Nos. 1465 to 1467, Khata Khatuni No. 278-277 according to Jamabandi for the year 1999-2000, situated in Mauza Mona Mirwal, Tehsil and District Chakwal, against the defendants/respondents who are successors-in- interest of Mst. Sarran daughter of Dullah. They further contended in the suit that the defendants/respondents had not concern with the land, that the entries in the Revenue Record are collusive and without any rights, thus illegal and of no legal effect. The petitioners further claimed that gift Mutation No. 284 by Mst. Sarran in favour of defendant No. 1 Noor Khan, predecessor-in- interest of respondents Nos. 2 and 3 was illegal being beyond the ownership rights. An injunctive decree was also prayed for.
2. In the plaint, it was stated that the suit property comprising on the above-said Khasra Numbers, measuring 18 kanals, 2 marlas was originally owned by Ladhu son of Fatta, who alienated the same to Mawaz son of Lal, predecessor-in-interest of the petitioners, by way of sale-deed executed on 8.7.1902 on the basis of which Mutation No. 49 was attested on 24.12.1903; the old Khasra Number was 995; at the time of preparation of Jamabandi for the year 1919-20 correct entry was not made in the name of Mawaz Khan and his name was deleted from the Revenue Rebord; at the time of preparation of jamabandi for the year 1923-24 Mst. Sarran who was the niece (Bhatiji) of Mowaz, with connivance of the father of the Respondent No. 1, who was then Lambardar, got incorporated her name as owner in the Revenue Record; subsequently Mst. Sarran married to Respondent No. 1; thereafter she made Mutation of gift No. 284 about half of the suit property in favour of respondents Nos. 2 and 3, since 1902 the possession of the suit property is with the plaintiffs/petitioners and the entire transactions in favour of Mst. Sarran and thereafter made by her in favour of respondents Nos. 2 and 3 were illegal.
3. The suit was resisted by the respondents/defendants by filing their written statement, wherein it was contended that the real facts have been concealed in the plaint and litigation between the predecessors of the parties went up to the High Court and the right of Mst. Sarran in the suit property was maintained by this Court.
4. The respondent filed an application for rejection of the plaint of the suit of the petitioners on the plea that the suit filed by the petitioners was hit by the principle of res judicata in view of the fact that earlier the matte between the parties was finally decided up to the High Court. After calling the reply from the petitioners/plaintiffs, the learned Trial Court, Civil Judge, Chakwal came to the conclusion that the suit filed by the petitioners was not proceedable and rejected the plaint vide judgment and decree dated 15.10.2003. The appeal filed thereagainst by the petitioners was also dismissed by the learned Additional District Judge, Chakwal, vide judgment and decree dated 7.2.2004, hence this revision petition.
5. The learned counsel for the petitioners contends that the question of res judicata is the mixed question of law and fact, yet neither any issue was framed by the Trial Court nor any evidence was recorded, had it been so, the petitioners would have proved on the record that: ---
(i) .Neither the Will nor the consequent Mutations Nos. 324 and 325 pertain to Khasra Nos. 1465 to 1467, old No. 996;
(ii) Mst. Saran while filing the suit had wrongly mentioned the said Khasra Numbers in her plaint which were held to be non-ancestral property of Dulla though he was not the owner;
(iii) bare perusal of the Will by Dulla in favour of her daughter Mst. Saran would establish this fact that Khasra No. 995, which is now represented by Khasra Nos. 1465 to 1467 were not subject-matter of the Will.
Secondly, it is contended that the error occurred in the earlier judgments of the Courts was due to the fact that the Courts did not examine the Will and the Mutation; the Will was not made qua Khasra No. 995, now represented by Khasra Nos. 1465 to 1467. On the strength of the case reported as Muhammad Tariq Mehmood and 2 others vs. Anjuman Kashmiri Bradri Khisht Faroshan through President Abdul Ashfaq and 21 others (2003 CLC 335) and Shahul Hamid' vs. Tahir Ali (1980 SCM R 469) contends that while rejecting the plaint under Order VI, Rule 11, CPC the Court was under legal obligation to look only the contents of the plaint.
6. The learned counsel for the respondents, who is under pre-admission notice, contends that 'Will' dated 6.12.1914 executed by Dulla in favour of her daughter Mst. Saran was regarding Khasra Nos 1465 to 1467 (Old Khasra No. 995), situated in Mauza Mona Mirawal, Tehsil and District Chakwal and Mutations Nos 324 and 325 pertaining to the above-stated Khasra numbers were the subject- matter of the earlier suit for declaration filed by Mst. Saran daughter of Dulla on 19.6 1942. The decree was awarded in favour of said Mst. Saran, which was maintained by the High Court therefore, these facts were concealed by the petitioners in their plaint of the suit for declaration as such section 11, CPC was rightly applied and the plaint has rightly been rejected under Order VII, Rule 11, CPC, because the same was hit by the principle of constructive res judicata. Reliance is placed on the cases reported as Maj. (Rtd.) Hamid Ali Khan vs. Mian Muhammad Anwar (2000 CLC 1633), Khushi Muhammad and 2 others vs. The Province of the Punjab through Secretary to Government of the Punjab and 2 others (1999 SCM R 1633), S.M. Shafi Ahmad Zaidi through Legal Heirs vs. Malik Hassan Ali Khan (Moin) through Legal Heirs (2002 SCM R 338), Ume Aiman and 43 others vs. Muhammad Yousaf and 10 others (2002 CLC 1620-Karachi), Messrs Al-Riaz Agencies vs. Chambers of Commerce and Industries, Karachi and others (2001 CLC 1966 Karachi) and Retired Major Hamid Ali Khan vs. Mian Muhammad Anwar (2000 Appeal Cases 578). Further contends that the petitioners suppressed the fact of earlier litigation therefore the cases of Muhammad Tariq Mahmood and 2 others vs. Anjuman Kashmiri Bradri Khisht Faroshan through President Abdul Ashtaq and 21 others (2003 CLC 335) and the case of Shahul Hamid vs. Tahir Ali (1980 SCM R 469) relied upon by the learned counsel for the petitioners do not apply to facts and circumstances of the present case as where the fact of earlier litigation is suppressed with mala fide intention the Court has jurisdiction to reject the plaint by relying on earlier decision. He further contends that the suit of the petitioners was hit by the law of limitation and therefore the Courts below have rightly rejected the plaint of the petitioners by applying the principle of res judicata. He refers to the cases reported as Maulana Nur-ul-Haq vs. Ibrahim Khalil (2000 SCM R 1305) and Rahat Mahmood vs. Tariq Rashid and another (PLJ 1993 Karachi 481).
7. I have heard the learned counsel for the parties and perused the record with their assistance. In the present suit it has been pleaded that the land in dispute initially belonged to Ladhu son of Fatta, which was purchased by Mawaz Khan son of Lal, predecessor-in-interest c the petitioners, vide registered sale-deed and Mutation No. 49 dated 24.12.1903 was sanctioned. Khasra numbe at the relevant time was 995. Mawaz Khan was shown to be owner from 1903 to 1920. Some time later the entry was unauthorisedly changed and Mst. Saran, daughter of Dulla,was shown to be owner of 9 Kanals and 1 Marla and the remaining land remained in the name of Mawaz, which continued to be in the name of the legal heirs of Mawaz. The mistake happened in the year 1919-20. Firstly, the petitioners have concealed the filing of earlier suit by Met. Saran in which the predecessor of the petitioners, namely, Mawaz Khan was a party and the decree awarded in savour of the respondents, maintained by the High Court, was not mentioned. Secondly, the written statement in that suii clearly shows that tne facts agitated by the petitioners in the present sult were never agitated or brought as a defence in the written statement. The first Appellate Court rightly observed that it was not the claim in that writtr n statement that the name of Mawaz Khan was deleted wrongly from tne Revenue Record and that Mst. Saran got her title in the Revenue Record with the connivance of anybody. The basic question before the Court was that whether the case is covered by the principle of resjudicata. The Appellate Court has also rightly observed that the petitioners should have taken clear and un ambiguous stand in the earlier suit but they did not set up a plea in that suit, which they now wanted to take in the present suit. The Appellate Court has rightly relied on section 11 and (explanation IV) of the C.P.C. Explanation IV of section 11, C.P.C. Reads as under:- "Explanation IV---The matter which might and out to have been made ground of defence or attack in such former suit shall be deemed to have been a mailer directly and substantially in issue in such suit."
In the case of Khushi Muhammad and 2 others vs. The Province of the Punjab through Secretory Government of the Punjab and 2 others (1999 SCM R 1633) while interpreting the principle of constructive res judicata it was ruled by the Honourable Supreme Court that, "Even if there were some questions, each one of the same ought to have been raised in the previous adjudication and in the event any of them was not raised such omission attracted the principle Of constructive res judicata"
8. The previous suit was tried by the Court of competent jurisdiction. Not only the predecessor of the present parties were parties in the earlier suit filed by Mst. Saran on 29.6.1942, in which she had claimed that she is owner of certain land including the land in Khasra Nos. 1465 to 1467 on the basis of Will dated 26.12.1914. She was declared owner of the property through a decree of the Civil Court, which decree was maintained by the High Court. This question that the petitioners purchased the property measuring 18 kanals, 2 marlas of Khasra Nos. 1465 to 66 belonged to Ladhu son of Fatta and it was purchased Mawaz Khan son of Lal, predecessor-in-interest of the petitioners, vide sale- deed under Mutation No. 49, dated 24.12.1903 was not inserted in their written statement. This might and ought to have been made a ground of defence or attack in the former suit and thus the same shall be deemed to have been the matter directly and substantially in issue in such a suit as per explanation No. IV of section 11, C.P.C. The petitioners cannot be allowed to agitate the matter in the second round of litigation, therefore, the Court rightly observed that the suit is hit by section 11 and the plaint was rightly rejected by the Civil Court through its judgment and decree dated 15.10.2003, which was maintained by the AdditiOnal District Judge through a well-reasoned judgment.
9. Normal rule of procedure is that the Court should look into the contents of the plaint and refrain from looking into other material on the record for applying the provisions of Order VII, rule 11, C.P.C. Reliance can be made to the cases of Muhammad Tariq Mahmood and 2 others (2003 CLC 335) and Shahul Hamid (1980 SCM R 469). But once the matter had been concluded upto the High Court or the Supreme Court, then no Court would have jurisdiction to reopen the same on the well-known principle of res judicata.
Reference is made to the case of Bashir Ahmad and 5 others (2003 CLC 374). In the case of Khushi Muhammad and 2 others (1999 SCM R 1633) supra, it was held that even if there were some questions, each one of the same ought to have been raised in the previous adjudication and in the event any of them was not raised, such omission attracted the principle of constructive res judicata. In the case of Khawaja Muhammad through Legal Heirs vs. Baland Khan through Legal Heirs and another (1999 M LD 2140-Peshawar), where previous suit was tried by the Court of competent jurisdiction, it was held that, "...The powers of a Court are restricted to try a subsequent suit on an issue which has been directly and substantially stands decided between the same parties." The ratio of the above-said judgment is that where facts of previous suit and its decision by the competent Court of jurisdiction was concealed by the plaintiff in the plaint of his suit then the material produced, evidence and documents, by way of filing written statement or alongwith the application under Order VII, Rule 11, CPC could also be kept in mind for rejecting the plaint.
Reference can be made to the case of Maj. (Rtd.) Hamid Ali Khan vs. Mian Muhammad Anwar (2000 CLC 1633-Lahore).
10. There is material available on the record to show that the suit filed by the petitioners was hit by section 11 (Explanation IV) of C.P.C. As it was hit by the principle of res judicata, so the well-reasoned judgment of the Trial Court, which was maintained by the Appellate Court, cannot be interfered with by this Court in exercise of revisional jurisdiction under section 115, CPC. Resultantly, the revision petition fails, which is accordingly dismissed in limine with cost.
Civil .