' SYED ZAHID HUSSAIN, J.---A suit for possession instituted by the appellants was decreed by the learned trial Court vide judgment dated 28-3-1996 whereagainst the appeal preferred by the respondent was accepted by the learned Additional District Judge, Sheikhupura on 12-1-1998. This is second appeal qua the same.
2. Assailing the judgment of the learned appellate Court, it is contended by the learned counsel that the appellate Court has misread and misinterpreted the evidence on the record in reversing the findings recorded by the trial Court. It is contended that the statement of Anwarul-Haq, Tehsildar (P.W.2) has also been completely overlooked. In order to assail the findings qua Issues Nos.2, 3, 4 and 5, the learned counsel contends that the earlier litigation which had ended between the parties in compromise, the same does not operate as res judicata or estoppel as the decision was not on merits. Reference has been made to The Ccmmissioner of Income Tax N.C.A. Cirlce, Karachi and another v. Haji Ashfaq Ahmed Khan and 10 others (PLD 1973 SC 406); Malik Najibullah Khan and others v. Malik 'Muhammad Bahadur and others (1980 CLC 1216), Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344); Abdul Ghafoor v. Chief Settlement Commissioner and another (1985 SCMR 464) and Mst. Ghulam Sughran (deceased) through legal heirs and others v. Sahibzada Ijaz Hussain and others (PLD 1986 Lah. 194).
' The learned counsel for the respondents on the other hand contends that even a consent decree operates as res judicata and in any case the petitioners/appellants were estopped and precluded to institute a fresh suit qua the same subject-matter and the cause of action. It is contended that the respondent were owner in possession in their own rights and no encroachment had been made by them. According to him the appellants had failed to establish their title to the property even and the respondents were in possession since long after having raised the construction. In support of his contention, he has made reference to Shankar Sitaram Sontakke and another v.
Balkrishna Sitaram Sontakke and others (AIR 1954 SC 352); Newton Hickle and another v. Official Trustee of West Bengal (AIR 1954 Calcutta 506); Sailendra Narayan Bhanja Deo v. The State of Orissa (AIR 1956 SC 346); Commissioner of Income-Tax, East Pakistan, Dacca v. Wahiduzzaman (PLD 1965 SC 171); Gulabchand Chhotalal Parikh v. State of Gujaraat (AIR 1965 SC 1153), Muhammad Tufail v. Ata Shabir and 5 others (PLD 1977 SC 220), Wasi Ahmed Rizvi v. Federation of Pakistan (PLD 1982 SC 20), Mst. Khursheed Jehan v. Syed Aziz Ahmed Naqvi and 2 others (1990 CLC 1132), Dr. Akhtar Hussain v. S.M. Hanif and 2 others (1990 MLD 1652); Barkat v. Muhammad Sadiq and others (1990 CLC 1532); Muhammad Bakhsh v. Abid Hussain Shah and 6 others (1991 MLD 571); Ghulam Dastagir and others v. Mst. Mariam and others (1991 CLC 1526); Pardool and 3 others v. Gulzada and others (PLD 1995 SC 410); Muhammad Yousuf Memon v. Karachi Stock Exchange (Guarantee) Ltd. (1995 CLC 183); Amanul Mulk v. Mian Ghafoor-urRehman and others (1997 SCMR 1796); Nooruddin and 11 others v. Abdul Waheed and another (1999 MLD 2844), Mst. Rehmat Bibi and 9 others v. Noor Muhammad (2003 YLR 3280); Mst. Zainab through Attorney v. Mst. Muni and others (2004 SCMR 1786).
3. Before adverting to the other aspects of the matter, I am inclined to deal with Issues Nos.2, 3, and 5, fate whereof may clinch this round of litigation between the parties:- "(2) Whether the suit is hit by doctrine of res judicata under section 11 C.P.C.? OPD ' Whether the suit is time-barred? OPD ' Whether the plaintiffs are estopped from filing this suit because of their words and conduct? OPD"
' The learned trial Judge though observed in the judgment while dealing with Issue No,2 that Fateh Muhammad (the predecessor-ininterest of the appellants) had previously instituted a suit for possession yet he took the view that since the defendants/respondents had failed to produce any evidence to prove that the suit was decided by a competent Court, he returned the findings against the respondents/defendants.
' While dealing with issue of limitation and estoppel (Issues Nos.3 and 5), the finding was also recorded against the respondents/defendant. In appeal the learned Appellate Judge has reversed the findings of the trial Court on these issues.
4. Exh.D-39 is the copy of the plaint i.e, suit for possession filed by Fateh Muhammad (the predecessor-in-interest of the appellants) in the year 1974 against Muhammad Siddique (the predecessor-in-interest of the respondents) whereas Barkat Ali had filed a declaratory suit against Fateh Muhammad qua the same property. In those suits, they reached at a compromise (Exh.D- 40) and the suits were decided in terms of the compromise and decree dated 17-2-1975 (Exh.D-42) was passed. The factum of such compromise and disposal of the matter was admitted by Muhammad Afzal one of the plaintiffs, who appeared as P.W.3. The said suit and litigation were qua the same property and concerning same cause of action. It is, thus, to be seen as to whether the appellants could bring a similar suit in the year 1988 after about 13 years of the previous litigation which ended in compromise. The content of the principle of res judicata and estoppel was considered by the Hon'ble Supreme Court of Pakistan in Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and others (PLD 1987 SC 145) wherein it was observed that "The question whether decision is correct or erroneous has no bearing upon the question whether it operates or does not operate as res judicata. The doctrine is that in certain circumstances the Court shall not try a suit or issue but shall deal with the matter on the footing that it is a matter no longer open to contest by reason of a previous decision. In these circumstances it must necessarily be wrong for a Court to try the suit or issue, come to its own conclusion thereon, consider whether the previous decision is right and given effect to it or not accordingly as it conceives the previous decision to be right or wrong." In Shankar Sitrarm Sontakke and another v. Balkrishna Sitaram Sontakke and others (AIR 1954 SC 352) it was observed that "A consent decree is as binding upon the parties thereto as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon had the binding force of res judicata and the plaintiff was barred from re-agitating the question of accounts in a fresh suit." In Sailendra Narayan Bhanja Deo v. The State of Orissa (AIR 1956 SC 346) in the context of a compromise decree consisting of reciprocal concessions it was held that the said decree in the previous suit precluded the plaintiff from reasserting the title and agitating the matter. The reliance of the learned counsel for the appellants upon The Commissioner of Income Tax N.C.A. Circle, Karachi and another v. Haji Ashfaq Ahmad Khan and 10 others (PLD 1973 SC 406); Mst. Ghulam Sughran (deceased) through legal heirs and others v. Sahibzada Ijaz Hussain and others (PLD 1986 Lah. 194) (DB); Abdul Ghafoor v.
Chief Settlement Commissioner and another (1985 SCMR 464) and Malik Najibullah Khan and others v. Malik Muhammad Bahadar and others (1980 CLC 1216) is inapt and misconceived inasmuch as the precedent cases related to the earlier withdrawal of petition or suit. It may be observed that withdrawal of suit and a suit resulting in consent decree has different implications and consequences. Sven in Malik Najibullah Khan and others v. Malik Muhammad Bahadar and others (1980 CLC 1216) it was not laid down with certainty that section 11 Code of Civil Procedure, 1908 was not absolutely applicable to the compromise decrees. In Abdul Majid and others v. Abdul Ghafoor Khan and others (PLD 1982 SC 146) it was laid down that in a matter where provisions of section 11 of Code of Civil Procedure, 1908 do not apply in terms, the principle of res judicata still will be attracted to debar a party from re-agitating the matter afresh. In the instant case, the previous litigation between the parties had ended in a compromise and decree was drawn to that effect.
The principle stated in the precedents cited by the learned counsel for the appellants cannot be extended to the facts of the present case. It may be observed that if a consent decree based on some compromise between the parties, is not appealable under the law how the effect thereof could be nullified or eroded by filing a subsequent suit. Such a decree binds the parties and their successors. The decree in the instant case dated 17-2-1975 (Exh.D-42) clearly referred to compromise between the parties and their statements to that effect. It had all the binding force as even Muhammad Afzal (P.W.3) had also acknowledged and admitted such a compromise. The present suit, which has given rise to the instant appeal could not have, therefore, been filed by the appellants not only due to the applicability of principle of res judicata but also that they were estopped and precluded to initiate afresh litigation or institute any such suit. Moreover, even the long delay in filing the suit on 9-10-1988 was not explained and the suit was per se barred by time.
It may be mentioned that issues which may go to the root of the matter can be decided in isolation of the other issues if the matter can be disposed of on decision of the said issues. Such is the mandate of rule 3 of Order XV of Code of Civil Procedure, 1908. Reference in this context may also be made to Abdul Aziz and 18 others v. Muhammad Hassan and others (PLD 1984 Quetta 101) and Ms. Benazir Bhutto v. News Publications (Pvt.) Ltd. And 4 others (2000 CLC 904). Thus apart from the independent of the findings recorded by the two Courts below, I have come to the conclusion regarding Issues Nos.2, 3, 4 and 5 that the whole suit could be disposed of by treating these issues even as preliminary issues.
' As a result of the above, the appeal is without merit which is dismissed accordingly, with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.