' MIAN SAQIB NISAR, J.---Fateh Khan, was the owner of the land measuring 200 Kanals, which, according to the case of the petitioners, was sold in favour of Ali- Muhammad and Nawab vide registered sale-deed dated 25-8-1964; this sale was thereafter, challenged by Fateh Khan, himself on the ground of fraud, etc. And his suit was decreed on 23-12-1965; against the above, the purchasers Ali Muhammad, etc. Preferred an appeal, which was accepted on 7-12-1966 and the suit was dismissed. Fateh Muhammad assailed the above through R.S.A. No,13 of 1967, which was disallowed on 10-1-1967. It may be pertinent to mention here that during the pendency of the above referred first appeal, out of the aforesaid 200 Kanals, Fateh Muhammad, sold 34 Kanals in favour of Atta Muhammad and Soni Khan, the predecessors in interest of respondents Nos.15 to 20
2. Independent of the above, the heirs of Fateh Muhammad brought a suit for the declaration, challenging the sale of Ali Muhammad and Nawab being against their reversionary rights under the custom. The suit was allowed by the trial Court on 30-4-1974; aggrieved of this, Ali Muhammad and Nawab, preferred an appeal, which was dismissed on 25-11-1976; however, on their second appeal R.S.A. No,974 of 1976.Which was accepted on 2-5-1990, the suit of the heirs of Fateh Muhammad was dismissed. This is the final outcome of both the litigations.
3. On the conclusion of the above matter, the petitioners moved an application to the District Magistrate for the implementation of the sales in the relevant Revenue Record, but this was refused vide order dated 27-4-1991, with the direction to the petitioners, to seek their remedy from the civil Court. Thus the petitioners in this backdrop, filed the suit for the declaration on 14-5-1991, which was contested by the respondents Nos. 14 to 20 and was dismissed by the trial Court, on 31-10-1995 on two counts, firstly, it was held to be barred by the res judicata and secondly, that the sale in favour of the respondents Nos.14 to 20, is not hit by the rule of lis pendent. The petitioners challenged this judgment and decree through an appeal, and the learned appellate Court vide judgment and decree dated 3-7-1998 has reversed the finding of the trial Court on the proposition of lis pendent, whereas, the finding on res judicata -has been upheld, resultantly, the appeal has been dismissed.
Hence this revision petition.
4. Learned counsel for the petitioner argued that for the purpose of attracting the bar of res judicata, it has to be established on the record by the objecting party and should also be determined and adjudicated by the Court, that the issues in the previous litigation were directly and substantially in issue in the subsequent/present litigation. As the onus of the issues regarding the bar of res judicata was upon the respondents Nos. 14 to 20, but they miserably failed to discharge the onus as having led no evidence to prove on the record about the proximity of the issues in the two litigations; neither the plaint nor the written statement of the earlier case or even the judgment have been tendered in evidence, rather the decree sheet was placed by them, which was absolutely inadequate for proving their case. The earlier suit, which has been made the basis of the res-judicata by the Courts below, even according to the decree sheet, was not filed by all the plaintiffs of this case, but only by three heirs of Ali Muhammad, namely Ghulam Muhammad, Muhammad Nawaz and Atta Muhammad, who in that suit simply sought the protection of their possession, by asking an injunctive relief and the question of title was not in issue, and it could not be, because such question had already been conclusively decided' in the earlier two rounds of the litigation. It is further submitted that Ali Muhammad, was also survived also by the other heirs, who are petitioners Nos. 7 to 12 in this case, and Nawab by the petitioners Nos. 13 to 15; they admittedly were a party to that earlier suit, therefore, res judicata was inapplicable. It is argued that in order to attract res judicata, the cause of action in the earlier suit and the subsequent suit, should be common, but because there is no evidence on the record, which was the duty of the respondents Nos. 14 to 20, enabling the Court to adjudge and ascertain the commonality of the causes of action, resultantly, the res judicata in the circumstances, shall not be applicable, as has been held in the cases reported as Mrs. Irene Wahab v. Lahore Diocesan Trust. Association 2002 SCM R 300; Mst. Gul Shahnaz v. Abdul Qayyum Soomro and others PLD 2002 Kar.
333. It is also submitted that where the relief claimed in the earlier suit and the one agitated in the second suit, are different, the res judicata shall not debar the second suit, the support in this regard, has been drawn from the case reported as Sapphire Textile Mills Ltd. And others v. A.P.L.
Pakistan (Pvt.) Ltd. And others 2002 CLD 1767.
5. I have heard learned counsel for the parties. This is undoubtedly an admitted position on the record that the earlier suit, which has been made the basis of applying res judicata by the two Courts below, was A not filed by Nawab or his legal heirs, but only by few legal heirs of Ali Muhammad, therefore, the dismissal of that suit, under Order XVII, rule 3, C.P.C. For the non- production of the evidence by the plaintiffs of that case, could not be made the basis of the res judicata for the other plaintiffs/petitioners. Beside the onus of the issue regarding res judicata, was upon the shoulder of the respondents Nos. 14 to 20, which they failed to discharge, due to their omission to tender in evidence, the pleadings of the parties in the previous suit. In this context, it may be held that though the application of the rule of res judicata is a question of law, but its applicability is dependent upon the factual premises of proof B that the issues involved in the earlier litigation, were substantially and directly in issue in the latter case. This foundation of the facts have to be laid down by the party resorting to res-judicata and thus should tender into evidence the pleadings, the issues, and the judgment of the earlier case; but nonof these essential documents have been brought on the record in this matter and merely on the basis of the decree- sheet it cannot be ascertained and held that the said bar was attracted.
6. Moreover, in the earlier litigation, at the best, the dispute between the plaintiffs of that case and respondents Nos. 14 to 20 was restricted to 34 Kanals, while on the basis of the verdicts of the Court in the two litigations, referred to above, through the decision in the earlier two round of litigations terminated in favour of the petitioners, they in the present matter were only asking for the implementation of the sale, which has been affected in favour of Nawab and Ali Muhammad admittedly and as adjudicated by the Courts, was validly made by Fateh Muhammad in their favour; there was no challenge thrown to the sale of 34 Kanals and thus the two suits cannot be held to be based upon the same cause of action. Resultantly, the judgments and decrees of the twoCourts impugned in this petition, being against the rules laid down, cannot sustain.
7. As regards the question of lis pendens is concerned, this issue earlier decided against the petitioners by the trial Court has been reversed by the Court of appeal, no cross-appeal or cross- objection has been filed, but the counsel for the contesting respondents, has orally assailed those before me. But I do not find any merit in the submission, because it is proved on the record that the sale made in favour of respondents. Nos.14 to 20 was during the pendency of the appeal and thus it is hit by the lis pendens. However, even if, the sale was made after the decree in favour of Fateh Muhammad, and before the filing of the appeal by Ali Muhammad etc., yet it is undisputedly made before the expiry of the period of limitation available to Ali Muhammad, etc. For filing the appeal against that judgment and decree. It may be pertinent to hold that the rule of lis pendens shall be duly applicable during the period of limitation available to the aggrieved party challenging a decree, if ultimately the appeal is filed against the decree and it succeeds. And merely because a sale/alienation has taken place during the time after the passing of the decree but when no appeal had been filed, shall not save the transaction from the legal effect of lis pendens rather such alienation shall be clearly hit by the said rule, therefore, I do not find any legal or factual infirmity in the judgment of the learned Court of appeal on this issue.
' In the light of above, by allowing this revision, the impugned judgment and decree is set aside, the case is remanded to the learned. Court of appeal for decision afresh on all other issues except those covered by this petition.