The brief facts out.of which present revision petition arises are that the petitioner purchased a land measuring one Kanal, 5 Marlas through registered sale-deed dated 6.3.1990 from Respondent No,
2. Respondent No, 2 has given possession of the land in-question to the petitioner and there-after, the petitioner constructed building over the land in-question in the year 1993. Respondent No, 2 has interfered in the lawful possession of the petitioner over the land in-question. The petitioner being aggrieved filed a suit for declaration and permanent injunction against the respondent in the Court of Civil Judge Ist Class, Ferozwala. The contents of plaint reveal that the petitioner and another purchased the land measuring one Kanal. 5 Marlas which is situated at Dhaka Nizampura, Tehsil Ferozwala, District Sheikhupura from Respondent No, 2 and Mutation No, 2694 was also sanctioned in favour of the petitioner and the others. Respondent No, 1 illegally and with mala fide intention in execution of sale proceedings, is going to contend himself owner of the plot in-question. The contents of plaint further reveal that on account of interfering of respectables of the locality, Respondent No, 1 failed to take possession of the suit property, therefore, petitioner had filed the present suit out of which present revision arises against Respondent No, 1 with the prayer that Respondent No, 1 be directed not to take possession of the suit property. Respondent No, 1 filed written statement controverting the allegations levelled in the plaint. Out of pleadings of the parties, the learned trial Court framed the following issues:-- Issues:
(1) Whether the plaintiffs have got no cause of action to bring this suit? OPD-1
(2) Whether the suit is not maintainable under Section 11 CPC? OPD-1
(3) Whether the suit is mala fide? OPD-1
(4) Whether the plaintiffs have not approached this Court with clean hands, hence, not entitled to any relief? OPD-1
(5) Whether defendant is entitled to special costs under Section 35-A CPC? OPD
(6) Whether the plaintiffs are entitled to declaratory decree as prayed for? OPP
(7) Relief.
The learned trial Court decreed the suit vide judgment and decree dated 29.9.2001. Respondent No, 1 being aggrieved filed an appeal before the learned Addl: District Judge, Ferozewala, who accepted the same vide judgment and decree dated 9.1.2002 and remanded the case to the learned trial Court to decide afresh by giving findings on Issue No,
1. The learned trial Court after remanding the case, dismissed the suit of the petitioner vide impugned judgment and decree dated 24.6.2003. The petitioner being aggrieved filed an appeal , before the learned Addl: District Judge, Ferozewala, who also dismissed the same vide judgment and decree dated 5.6.2004, hence, the present revision petition.
2.The learned counsel of the petitioner submits that in the earlier round of litigation, the learned trial Court was justified to decree the suit in favour of the petitioner vide judgment and decree dated 29.9.2001. He further submits that after remanding the case, the learned trial Court erred in law to non-suit the petitioner on technical grounds of res-judicata, as the suit filed by Respondent No, 2 against Muhammad Yaqoob and petitioner was decreed. He further submits that the suit filed by Respondent No, 2 has no nuxes with the land in-question; therefore, both the Courts below were non justified to non-suit the petitioner on the ground of res-judicata. He - further submits that Respondent No, 2 had purchased the land measuring 4 Marlas out of 16 Kanal which is situated in Square No, 16, Killa No,
26. The original owner has ownership in this land measuring 16 Marlas.
Respondent No, 2 had purchased 8/57 shares, which comes to 4 Marlas, but this fact was not considered in its true perspective by the Courts below. He further submits that the petitioner had purchased the land in-question, which is situated in Square No, 16 Killa No, 26, 1/2 share of the original owner, which becomes to one Kanal & 5 Marlas. He further submits that the land in- question is not partitioned; therefore, both the Courts below erred in law to decide the case against the petitioner. He further submits that both the Courts below ignored the fact that the petitioner is enjoying ownership of his own plot, which was entirely different to the plot of Respondent No,
1. He further submits that the petitioner had purchased the land in-question on 6.3.1990. He further submits that both the Courts below did not appreciate evidence produced by the petitioner in the shape of electricity bills Ex.P-3 to Ex.P-6 relating to the year 1993-94 to 2003 and bills of Sui. Gas in the shape of Ex.P-7 to Ex.P-8. He further submits that both the Courts below had decided the case against the petitioner without proper appreciation of evidence on record, specially Annexures-F to F/2, G to G/2, H to H/7 and J to J/4. He further submits that both the Courts below wrongly ignored the documentary evidence of the petitioner, which was placed on record by the petitioner in the shape of Ex.P-1 to Ex.P-8 and Ex.P-9 to Ex.P-12.
3. I have given my anxious consideration to the contention of the learned counsel of the petitioner and perused the record.
6. Both the Courts below have decided Issue Nos, 1 and 6 against the petitioner after proper appreciation of evidence on record. It is admitted fact on record that Respondent No, 2 has filed a suit against Muhammad Yaqoob and the petitioner, which was partially decreed in favour of Respondent No,
2. The petitioner failed to bring on record any evidence to dislodge the stand of the respondents. The petitioner merely has stated in his statement that Respondent No, 2 has got no concern with property in-question which was rightly dis-believed by both the Courts below as the petitioner was party in the suit filed by Respondent No, 2 against Muhammad Yaqoob, etc. Respondent No, 2 has taken definite stand in his statement that respondents got possession of the disputed land through Court but the petitioner in the contents of plaint has suppressed all the material events and the facts. The documentary evidence was also produced by Respondent No, 2 in the present suit. The petitioner has not cross-examined Respondent No, 2 on the aforesaid stand taken by Respondent No, 2 qua earlier litigation in the examination-in-chief, therefore, it is settled principle of law that portion of statement of witnesses must be admitted as true, in case witness was not cross-examined qua portion mentioned in the examination-in-chief, which was not cross- examined by the petitioner in the present case. It is settled principle of law that portion of examination-in-chief is to be given full credit and usually accept as true, as per law laid down by the Superior Courts in the following judgments: "Qasim Din's case" (PLD 1967 Lahore 1171).
'Mst. Noor Jehan Begum's case" (1991 S.C.M.R. 2300). "Luqman's case" (1985 C.L.C. 2327).
Both the Courts below have been given concurrent findings against the petitioner as mentioned above that the suit filed by Respondent No, 2 against the petitioner and Muhammad Yaqoob qua the land in-question and the suit filed by the petitioner is hit by the principle of Res-judicata in view of Section 11 of CPC which, is in consonance with law laid down by the Honourable Supreme Court in "Pir Bakhsh vs. Chairman Allotment Committee." (PLD 1987 S.C. 145) and Niaz Muhammad vs. Mst.
Noori (1997 MLD 406). It is also admitted fact that the petitioner has concealed the 1 material facts in the contents of plaint. The suit filed by the petitioner is discretionary in nature, therefore, both the Courts below have rightly not exercised discretion in favour of the petitioner, which is inconsonance with aw laid down by the Superior Courts in the following judgments: "Haji Noor Muhammad vs. Ghulam Masih Gill" (PLD 1965 (W.P.) B.J. 1).
'Malik Muhammad Hayat Khan vs. Subedar Yar Muhammad" (PLD 1966 S.C. 612).
"S.M. Zahur-ud-Din etc. vs. Muhammad Ghyas-ud-Din, etc." (PLD 1967 Dacca 761).
'Muhammad Amin etc. vs. Mian Muhammad', (PLD 1970 'B.J. 5).
"Zafar-Ullah Khan vs. Muhammad Asar Hussain & another', (1996 S.C.M.R. 1804).
It is admitted fact that both the Courts below have given concurrent findings of the facts against the petitioner and this Court has very limited jurisdiction to disturb the concurrent findings of the Courts below while exercising power under Section 115 of CPC. The Privy Council has also laid down parameters to interfere in the findings of the Courts below while exercising power under Section 115 of CPC in 'NS. Vankatagiri Ayyangar and another vs. The Hindu Religious Endowments Board Madrass" (PLD 1949 P.C. 26). The relevant observation is as follows: This is section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with maternal irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
The judgment of the Privy Council is followed by this Court in (NLR 1985 Civil 114).
5. It is pertinent to mention here that the judgment of this Court is upheld by the Honourable Supreme Court in C.P. No, 1146-1984 vide judgment dated 31.3.1985 which was reconsidered and re- affirmed by the Honourable Supreme Court in "Board of Intermediate and Secondary Education, Lahore vs. Ghulam Qadir" (PLD 1988 S.C. 625). The learned counsel of the petitioner failed to bring the case within the principle prescribed by Privy Council in the aforesaid judgment, therefore, I am not inclined to interfere in the concurrent findings of the facts of the Courts below, which have been given after proper appreciation of evidence on record. It is pertinent to mention here that it is high time to discourage the litigant to approach the Court again and again on the same cause of action and on the same issue by concealing the material facts specially the earlier litigation in the contents of plaint which means to initiate proceedings against Respondent No, 1 in mala fide manner, which has already been decided by the Courts below, therefore, both the Courts below were justified to dismiss the suit of the petitioner with special costs which is in accordance with law laid down in the following judgments: "The Postmaster General vs. Muhammad Bashir" (PLJ 1999 S.C. 6).
"Province of Punjab vs. Rashid Ahmad & others" (1998 M.L.D. 1818).
'Muhammad Yaqoob vs. Province of the Punjab" (1993 M.L.D. 918). In view of what has been discussed above, this revision petition has no merit and the same is dismissed.