' This civil revision assails judgments and decrees, dated 12-4-1993 and 31-1-2000 passed by the learned Civil Judge and learned Additional District. Judge Liaqatpur, respectively, concurrently deciding lis against the petitioner.
2. Precisely, relevant facts are that petitioners filed a suit for declaration to the effect that they are owners in possession of the land, detailed in the plaint, with the averments that respondents have no right, title or interest in the land in their possession, but they on the basis of adverse and fake entries in the Revenue Record are bent upon to interfere into their lawful possession. Petitioners also prayed as a consequential relief permanent injunction against the respondents. Claim of the petitioners was that deceased Ahmed son of Ghulamti, the original owner of the land subject of suit, had gifted it through a "Tamleek" vide Mutation No,15 in favour of Ghulam Muhammad, his grandson on 10-2-1929, and thus they being descendents of the donee, are owners. They also asserted that Ghulam Muhammad donee died in his minority, but respondents Nos.2 to 7 out of their collusion with the revenue staff fictitiously got Mutation No,88, dated 6-9-1932 sanctioned .In their favour, which is liable to be declared as void and inoperative qua their rights.
3. Respondent No,1 being defendant in the suit admitted claim of the petitioners by filing his concessional written statement, whereas respondents Nos. 2 to 9 .Strenuously contested the suit, controverting all the allegations in the plaint, wherein they pleaded that the petitioners had earlier challenged Mutation No,88, dated 6-9-1932 in the Civil Court and finally this Court decided the matter in favour of the respondents that "Tamleek" Mutation No,15, dated 10-2-1929 was false, fake and fictitious and that Ahmed deceased had never made any "Tamleek" of the suit-land in favour of Ghulam Muhammad, besides raising objections of suit being barred by limitation, its non- maintainability, estoppel, mala fide intention of the petitioners in approaching the Court and the suit being hit by principle of res judicata, by filing their written statement. Controversial pleadings of the parties necessitated framing of issues and recording of evidence, the learned Civil Judge, who was seized of the matter, after doing the needful, vide his judgment and decree, dated 12-4- 1993 dismissed the suit of the petitioners. Petitioners aggrieved of the decision of the trial Judge tiled an appeal before the learned Additional .District Judge, which was accepted on 17-7-1995 and the case was remanded to the Trial Court for its fresh decision. Respondents fileu FAO No,36 of 1995 before this Conn, which was accepted on 15-6-1999 and remand order was set aside and case was remitted to the Appellate Court for decision of appeal on its own merit, in accordance with law.
4. Appellate Court in post remand proceedings, again heard the parties and dismissed the appeal of the petitioners vide its judgment and decree, dated 31-1-2000. Thereafter petitioners filed instant revision petition. In response to notice by this Court, respondent Nos.2 to 9 are represented through their counsel. Respondent No,1 in spite of service did not appear, hence is proceeded against ex parte.
5. Learned counsel for the petitioners submits that in earlier litigation, on the basis of which the suit of the petitioners has been dismissed, the petitioners were not aware of the mutation now impugned and thus decision there will not operate as res judicata against them. In support of his submission he referred to the cases of Amanat Bibi and others v. Imadad Hussain (15 I.A. 106), Mst.
Aishan v. Muhammad Din (AIR 1917 Lahore 19) and Mst. Bibi Alam Taj and others v. Mst. Inayat Begum (PLD 1963 (W.P.) Peshawar 199). He further contends that the grounds taken by the petitioners in their plaint were never raised or decided in the earlier litigation thus those cannot be refused on the plea of res judicata.
6. Learned counsel appearing on behalf of the respondents seriously refuted assertions of the petitioners, supported the judgments and decrees of the two Courts below and relying on the cases of Pir Bakhsh represented by his legal Heirs and others v. The Chaimran, Allotment Committee and others (PLD 1987 SC 145), Rab Nawaz Khan and 6 others v. Azim Khan and 35 others (1998 SCM R 2727), Khushi Muhammad and 2 others v. The Province of the Punjab through Secretary to Government of the Punjab and 2 others (1999 SCM R 1633) and Amanul Mulk v. Mian Ghafoor-ur- Rehman and others (1997 SCM R 1796), urged that rationale behind the constructive res judicata is that the parties who had assertions in support of their claim or defence in the former suit and had not done so, they should be deemed to have raised such grounds in the former suit and shall further be deemed that those grounds were raised, heard and decided by the earlier Courts deciding the lis. He further argued that all the petitioners were party to the earlier litigation and thus it is incorrect to argue that they were not aware of the Mutation No,15. According to his submissions, petitioners contested their claim in the earlier suit from tooth to nail and the matter was ultimately decided by this Court through a judgment, dated 23-4-1978, which cannot be reopened on a similar cause of action with similar averments.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record. Respondents produced .Certified copies of earlier suit, written statement and decisions of the trial Court, Appellate Court and Revisional Court, as Exh. D.4 to Exh.
D.12, which manifest that petitioners earlier instituted a suit against the respondents, wherein they challenged the legality and validity of Mutation No, 88, dated 6-9-1932. This suit by the petitioner was dismissed through a judgment and decree, dated 8-2-1972 and their appeal thereafter filed on 7-3-1974. Petitioners then tiled a revision petition before this Court, which was dismissed by his lordship Mr. Justice Abdul Shakurul Salam (as his lordship then was) through a detailed judgment, dated 23-4-1978 (Exh. D. 4), which was not further assailed before the Honourable Supreme Court and thus attained finality. This Court on 23-4-1978 while dismissing Civil Revision No,69/ 1974/B.W.P.
Filed by the petitioners, examined in detail legality and propriety of gift reflected in Mutation No, 88, dated 6-9-1932 and thus determined all the pros and cons of the case of the petitioners revolving around it. Result of earlier litigation and judgment by this Court is that Mutation No,88, dated 6-9- 1932 was held to be lawfully sanctioned in favour of respondents Nos. 2 to 9, ignoring "Tamleek"
Mutation No . 15, dated 10-2-1929 allegedly sanctioned in favour of Ghulam Muhammad the donee, the predecessor of the petitioners. This Court in judgment, dated 23-4-1978 categorically observed that donor of Mutation No,88 lived for not less than 18 years thereafter, as he died in 1949, but did not challenge this Mutation and at the same time, none of the petitioners challenged it till the filing of their earlier suit in 1969 and thus gave a supporting shoulder to Mutation No,88, above-referred.
8. Petitioners in their second suit (in hand) claimed ownership of the land on the basis of Mutation No,15, dated 10-2-1929 and in order to bring their suit within the law of limitation, they averred in paragraph 8 of the plaint that they came to know about the existence of Mutation No,15 only 20 days before the filing of this suit, at the time when respondents opted their eviction from the suit- land and on scrutiny of Revenue Record it revealed that Mutation No,15 was sanctioned in favour of Ghulam Muhammad their predecessor-in-interest. Though this assertion, on the face of it, has no credence for consideration because petitioners had remained in litigation right from 1969 to 1978, in which entire Revenue Record was produced and still they claim that they were not aware of existence of Mutation No, 15, dated 10-2-1929, yet their stance was required to be proved at trial and they were to prove that how they can derive title under Mutation No,15, dated 10-2-1929 when in earlier litigation Mutation No,88, dated 69-1932 was held to be lawful, conferring a valid title to the respondents. Both the Courts below leave thoroughly scanned evidence produced by the parties, which was duly appraised and concurrent findings of facts were returned by them, against the petitioners and I am not required to recapitulate the evidence of the parties as it has not been asserted that any part of it was misread or non-read, thus I restrict myself to the applicability of constructive res judicata in view of respective assertions of the parties.
9. As observed above, it is beyond imagination that in spite of protracted litigation the petitioners were not aware of sanctioning of Mutation No, 15, dated 10-2-1929, but assuming for the sake of arguments that they were not aware of this mutation, I think that petitioners cannot be helped in these proceedings because Mutation No,88 was sanctioned ignoring Mutation No,15 which was earlier in time and it will be assumed that petitioners did rely their claim on its basis, which was considered and refused in earlier litigation. The Honourable Supreme Court dealing with similar situation in the case of Pir Bakhsh represented by his Legal Hiers and others (supra) applied Explanation IV of section 11, C.P.C. To the case with the observation that where parties have had an opportunity for controverting a matter, the same should be taken to have actually been controverted and decided by the Courts. In this case, one of the parties had not based his defence on an order in his favour, but in spite of it, it was mandated that Explanation IV of section 11, C.P.C.
Was applicable by all fours and the subsequent suit was barred under the principle of constructive res judicata. The Honourable Supreme Court took a similar view in a subsequent case of Rab Nawaz Khan and 6 others (supra) and applying the same provision of law, held that defendants in that suit were not permitted to raise any claim for possession of land, on which they could have based their claim in earlier round of litigation and thus were precluded from re-agitating plea for possession of the land on the basis of the asserted exchange. The same view was re-affirmed, in the case of Khushi Muhammad and 2 others (supra), wherein it was urged that many of the questions pursuant to the issue involved, were not raised during previous litigation and therefore, could freely be re-agitated but the Honourable Supreme Court applying the provisions of section 11 of the C.P.C. Adjudged this plea as of no substance with the findings that each one of these pleas are ought to have been raised in previous adjudication, in spite of the fact that those were not raised, could not be raised subsequently, under the principle of constructive res judicata. The Honourable Supreme Court reaffirmed the principle under discussion in yet another case of Amanul Mulk (supra), wherein a ground of attack was refused to be raised, as it was available at the time of decision of the earlier litigation.
10. Judgments relied by the learned counsel for the petitioners are of no help to their case for multiple reasons because, on the one hand, it is beyond comprehension, as noted above, that Mutation No,15, dated 10-2-1929 was not in their knowledge and at the same time, there is no proof of the fact that in spite of being in possession of the land at tenants, they remained unaware of it, whereas on the other hand, all these judgments referred to different eventualities, whereunder the earlier suit proceeded on altogether different case of action. All the three cases produced before me by the petitioner's counsel are neither applicable on legal plane nor these involve similar facts.
Above all, in presence of repeated judgments of the Honourable Supreme Court of Pakistan, I am not persuaded to hold that second suit of petitioners was maintainable to set aside Mutation No,88 dated 6-9-1932, which was earlier held to be lawful.
11. For what has been discussed above, I am constrained to hold that both the Courts below have rightly applied the principle of constructive res judiciata and correctly dismissed the suit of the petitioners. Before parting with the judgment, I must observe that second suit of the petitioners is also barred under Order II, rule 2, C.P.C. Because cause of action to base their title on Mutation No,15, dated 10-2-1929 was available to the petitioners at that time, but they did not include in that suit their entire claim and relinquished it deliberately, without permission of the Court cannot subsequently sue for it. Under Order II, rule 2(3), C.P.C. a person entitled to more than one relief in respect of same cause of action had to file suit for all such relief; but intentional relinquishment makes the suit in hand, incompetent. Thus both the Courts below have committed no illegality or irregularity amenable to revisional jurisdiction of this Court, in absence of which no interference in revisional jurisdiction is permissible, under law. This revision petition has no merit in it and is accordingly dismissed with costs throughout.