' SYED JAMSHED ALI, J.---The judgment and decree dated 3-4-1994 of the learned Additional District Judge, Sheikhupura, whereby the suit filed by the petitioners was dismissed by reversing the judgment and decree dated 29-6-1993 of the learned trial Court, has been assailed in this revision petition which arises out of the following circumstances.
2. Bahawal, the predecessor-ininterest of the petitioners and Sajawal, father and Mst. Mehtab Bibi, the predecessor-in-interest of the respondents jointly owned land measuring 103 Kanals and 2 Marlas. In his lifetime Sajawal had alienated land measuring 14 Kanals and 16 Marlas in favour of Muhammad Ahmad and was thus left with land measuring 88 Kanals and 6 Marlas in Khewats Nos.5 and 6. On the death of Sajawal, a mutation of inheritance in respect of his estate was sanctioned in his favour of Bahawal and Mst. Mehtab Bibi to the extent of 1/2 each. Out of her holding she alienated land measuring 16 Kanals in favour of Bahawal vide Mutation No,58 attested on 10-7-1971 (Exh.P.15) on 13-7-1972. Muhammad Ali, respondent No,1, filed suit (Exh.P.20) preempting the sale made by Mst. Mehtab Bibi in favour of Bahawal. The said suit ended into a compromise whereby Muhammad Ali was given land measuring 2 Kanals out of the area sold by Mst. Mehtab Bibi (Exh.P.25). Meanwhile on 10-7-1972, Mst. Mehtab Bibi filed a suit (Exh.P.23) questioning the sale made by her by Mutation No,58 on the ground that it was without consideration. There was a compromise (Mark A) in the said suit between the parties (Exh.P.27) 'according to which Bahawal gave 32 Kanals of land to Mst. Mehtab Bibi on the basis of which the suit of Mst. Mehtab Bibi was decreed on 13-3-1973 for an area measuring 32 Kanals (Exh.P.26). The decree of the Civil Court was implemented in the Revenue Record vide Mutation No,90 attested on 15-12-1973 (Exh.P.14). On the death of Mst. Mehtab Bibi her inheritance was sanctioned in favour of the respondents vide Mutation No,193 attested on 20-1-1981. On Bahawal's death mutation of inheritance was sanctioned on 21-1-1982 (Exh.P.17) in favour of petitioners Nos.1 to 5 and Murad Ali predecessor in interest of petitioners Nos.6 to 9 as the successors of Bahawal.
3. On 23-2-1982, petitioners Nos.1 to 5 and Murdad Ali predecessor in interest of petitioners Nos.6 to 9 filed a suit for declaration assailing the decree dated 13-3-1973, Mutation No,90 attested on 15-12- 1973 and Mutation No,193 attested on 20-1-1981. Their case in the said suit was that by way of compromise in the earlier suit, Mst. Mehtab Bibi was given land measuring 4 Kanals in lieu of land measuring 16 Kanals which was sold by Mst. Mehtab Bibi in favour of Bahawal. It was further contended that the recital in the compromise that Bahawal had given another 28 Kanals to Mst.
Mehtab Bibi was only intended to consolidate her holding in one khewat instead of two and, therefore, the said decree operated only to the extent of 4 Kanals whereas under the decree aforesaid land mutated in her favour was wrongly shown as 32 Kanals. The said suit was contested, tried and was dismissed vide judgment and decree dated 31-1-1988 (Exh.P.28). They filed an appeal and in the appeal the said suit was allowed to be withdrawn on 19-9-1988 (Exh.P.31).
4. On 16-6-1988, the petitioners filed the instant suit in which declaration was claimed that they were owners of 157 Kanals and 9 Marlas of land and the land measuring 32 Kanals (covered by the decree dated 13-3-1973) was also owned and possessed by them. It was explained that 32 Kanals of land with specific field numbers were given to Mst. Mehtab Bibi in lieu of her share of inheritance of the estate of Sajawal and that Mst. Mehtab Bibi, was given 4 Kanals by way of compromise in the previous suit, thus, she was only an owner to the extent of 32 Kanals and 3 Marlas and the contrary entries in the Revenue Record were illegal, void and inoperative on the rights of the petitioners. The grievance in the said suit was that Mst. Mehtab Bibi was shown to be the owner of land measuring 60 Kanals and 3 Marlas in the Revenue Record.
5. The respondents contested the suit. A number of preliminary objections were taken including that the suit was barred by res judicata, it was barred by time and was collusive. It was asserted that in lieu of 16 Kanals, subject-matter of the sale of Mst. Mehtab Bibi in favour of Bahawal she was given an area measuring 32 Kanals. It was further averred that she owned 74 Kanals and 18 Marlas.
6. Necessary issues were framed and the suit was tried. The learned trial Court found that the present suit was based on fresh cause of action. It was further found that Mst. Mehtab Bibi owned land measuring 28 Kanals and 3 Marlas and was given 4 Kanals by way of compromise and thus she was owner of 32 Kanals and 3 Marlas, whereas by virtue of adding 32 Kanals which she claimed vide the compromise Exh.P.27, her holding became 60 Kanals and 3 Marlas. About the said compromise, the learned Court was of the view that 28 Kanals (in addition to 4 Kanals) given to Mst. Mehtab Bibi by way of the aforesaid compromise was only for the purpose of consolidating her holding. Accordingly, the suit of the petitioners was decreed on 29-6-1993.
7. The respondents filed an appeal. The learned first appellate Court found that the controversy raised in the previous suit and the present suit was the same and, therefore, the suit was barred by the principle of res judicata. The reasons to arrive at this conclusion have been noted in para.6 of the judgment which are reproduced as under:--
(1) In the previous suit, copy of which is produced as Exh.P.28, Mutation No,90 was challenged which was sanctioned on the basis of the compromise Mark "A" produced in the original Court, and have also challenged Mutation No, 193 and decree dated 13-7-1973,_,Which is now in a way challen through the titled suit.
(ii) In the previous suit as well as in the present suit the fact under question is as to whether in lieu of land measuring 16 Kanals Mehtab Bibi was given the land measuring 32 Kanals or not, which in my considered view, was decided substantially in a suit copy of which is produced as Exh.P.24 and the decree sheet of the same is produced as Exh.P.26 based on the compromise Exh.P.27 which is again under question in the present suit.
(iii) In the previous suit specific prayer was made about the cancellation of mutation and in the present suit the prayer is made for declaring the entries made in the Revenue Record on the basis of those mutations stand sanctioned in favour of Mst. Mehtab Bibi and her legal heirs. I do not find any difference about the matter agitated in both the suits."
' With regard to merits of the controversy, on examination of the evidence, particularly the admission of P.W.4, Muhammad Hayat, one of the petitioners, it was found that in lieu of 16 Kanals disputed in the suit filed by Mst. Mehtab Bibi, she was given an area measuring 32 Kanals. The earlier judgment produced in the case Exh.P.29 and Exh.D.1 was relied upon. The contention raised before the learned first appellate Court based on Exh.P.2 dated 24-6-1971, whereby Mst. Mehtab Bibi agreed to get 28 Kanals and 3 Marlas from Khewats Nos.5 and 6 in lieu of her holding in both the khewats was considered and repelled on the ground that not only Exh.P.2 was not a registered document but also that it did not find any mention in the compromise Exh.P.27. Accordingly, the appeal of the respondent was allowed and the suit was dismissed on 3-4-1994.
8. The learned counsel for the petitioners contends that in the previous suit Mst. Mehtab Bibi was given 4 Kanals of land in lieu of 16 Kanals which was sold by her in favour of Bahawal, the petitioner's predecessor and reference to 28 Kanals in the compromise was only in pursuance of agreement Exh.P.2 according to which Mst. Mehtab Bibi had agreed to get her holding hi one khewat in lieu of her entitlement in both the khewats in which she was a co-owner. He further submits that according to the compromise an area measuring 28 Kanals was given to Mst. Mehtab Bibi but the compromise did not say that Mst. Mehtab Bibi was given this area of 28 Kanals. He maintains that the grievances of the petitioners in the present suit was against wrong entries made in the Revenue Record and, therefore, as rightly held by the learned trial Court, the suit was based on a fresh cause of action. He contends that the effect of the entries in the Revenue Record is that instead of 32 Kanals and 3 Marlas to which Mst. Mehtab Bibi was entitled, she was wrongly shown as owner of land measuring 60 Kanals and 3 Marlas.
9. On the other hand, the learned counsel for the respondents contends that the disputed entries in favour of Mst. Mehtab Bibi were continued in the Revenue Record on the basis of Mutation No,90 attested on 15-12-1973 which in turn was based on the decree of the civil Court dated 13-3-1973 and unless the said decree and the mutation was set aside, the petitioners were not entitled to the relief claimed in the instant suit. He submits that the earlier suit having been withdrawn, without permission to file a fresh suit, the present suit was rightly held to be barred. He further maintains that this compromise was accepted by P.W.4, one of the petitioners who appeared in the witness- box and, therefore, even on merits the learned first appellate Court found that in lieu of 16 Kanals subject-matter of the suit filed by Mst. Mehtab Bibi she was given an area measuring 32 Kanals.
9-A. I have considered the submissions made by the learned counsel for the parties and have perused the record. The compromise Exh.P.27, the judgment Exh.P.29 and the decree in the said case (Exh. P.26) have been examined. Contents of the plaint in the previous suit (Exh.P.28) and those of the present suit leave no manner of doubt that the controversy raised in the previous suit and the present suit was exactly the same. The case of the petitioners was that decree dated 13-3- 1973 related only to 4 Kanals and not 32 Kanals and therefore, Mutation No,90 transferring the area measuring 32 Kanals in favour of Mst. Mehtab Bibi was wrong and illegal. The subsequent entries which were challenged in the instant suit were based on Mutation No,90. In the previous suit not only Mutation No,90 was assailed but mutation of inheritance of Mst. Mehtab Bibi and the decree dated 13-3-1973 were also assailed. The said suit was dismissed against which petitioners Nos.1 to 5 and Murad Ali predecessor-in-interest of respondents Nos.6 and 7 filed an appeal but not only the appeal was withdrawn the suit was also withdrawn without permission to file a fresh suit. Therefore, I have no doubt in my mind that cause of action in the present suit was exactly the same as was in the previous suit. The said suit having been withdrawn without permission to file a fresh suit, the instant suit was clearly barred by virtue of the provisions contained in sub-rule (3) of Rule 1 of Order XXIII of the Code of Civil Procedure. Therefore, the conclusion of the learned first appellate Court that the suit was barred by res judicata is of no consequence because it is only a case where wrong provision of law has been quoted by the learned first appellate Court.
10. The questions as to the effect of the compromise, the effect of the decree passed in the first case and whether Mutation No,190 was rightly attested on 15-12-1973 in favour of Mst. Mehtab Bibi were raised in the first suit and instead of contesting the judgment dated 31-1-1988 passed in the earlier suit, the petitioners opted to withdraw the said suit. Therefore, unless the present suit was maintainable, the merits of the controversy could not even be gone into. The learned trial Court, while holding that the cause of action for the present suit was different did not advert to the pleadings in the first and the second suit.
11. For what has been stated above, I find no ground to interfere in the impugned judgment and decree passed by the learned first appellate Court. Accordingly, this revision petition is dismissed.