' MIAN HAMID FAROOQ, J.---Though the filing of the present revision petition, the petitioner/plaintiff has called in question judgment and decree dated 22-4-2003, whereby the learned Additional District Judge accepted respondent's appeal and dismissed petitioner's suit, while setting aside the judgment and decree dated 30-3-2002, passed by the learned trial Court, through which he decided a preliminary issue in favour of the petitioner.
2. Briefly stated the facts of the case are that the petitioner instituted a suit for possession of house, consisting of two rooms and comprising in Khasra No,1688/1303/1043, situated in Mauza Kandhanwala, allegedly purchased the same from one Haider, son of Hussain, through sale-deed dated 13-10-1973. According to the petitioner since the respondent was a widow, therefore, she was allowed to live in the said house on temporary basis, however, later'-on she refused to vacate the house in question, thus, necessitating the filing of the suit. The respondent resisted the suit by way of filing the written statement, inter alia, pleading that the suit is hit by the principle of res judicata, as previously petitioner's two suits for declaration and possession in respect of same subject- matter were dismissed, on 3-10-1995 and 5-3-1998, by the civil Courts, therefore, the latest suit cannot proceed. The learned triaLCourt framed the following preliminary issues:--
(1) Whether the suit is hit by the principle of res judicata? OPD.
(2) Relief.
' The learned trial Court after receiving documentary evidence from the parties, in respect of the previous litigation, decided the said issue against the respondent vide order dated 30-3-2002, proceeded to frame the issues on merits and set down the case for recording the evidence of the petitioner. Dissatisfied with the said decision the respondent filed the appeal before the appellate forum and the learned Additional District Judge accepted her appeal and dismissed petitioner's suit vide judgment and decree dated 22-4-2003, hence the present revision petition.
3. Learned counsel for the petitioner has contended that the previous two suits were dismissed only on the ground of non-maintainability on account of some error in the sale-deed and after rectification in the Revenue Record, the latest suit was competent and did not hit by the principle of res judicata. He has further submitted that in both the suits the parties were different and that the matter was not finally and conclusively decided between the same parties, Conversely, the learned counsel for the respondent, while supporting the impugned judgment, has submitted that the latest suit of the petitioner is hit by the principle of res judicata.
4. It is admitted between the parties that the petitioner's two suits for declaration and possession were dismissed by the civil Courts on the ground that the same were not maintainable and that the petitioner on the basis of the sale-deed is not entitled to get the possession without getting the entries of the sale-deed corrected. The said judgments were not further assailed, rather the petitioner in obedience to the said judgments approached the Collector, who corrected the entries in the mutation, Exh.P.1, in favour of the petitioner and certain entries were also made in the Jamabandi for the year 1996-97 by the Patwari through Exh.P.3. In view of the above, the petitioner filed the latest suit on the basis of a new cause of action, as after the necessary correction by the competent authority, the petitioner has got a fresh cause of action for filing the suit. It is pertinent to note here that Khasra Number (1688-1203) in the previous silk was different, while the present suit is reading Khasra No,1688/1303/1043, as rightly concluded by the learned trial Court.
5. I have also noticed that the parties in the previous suits and in the latest suit were not the same, as the previous suits were filed against Haider, Ghulam Nabi and Mst. Sabran Bibi (present respondent-defendant), while the latest suit was filed against Mst. Sabran Bibi alone, thus, the parties in both the suits were not the same. Additionally, the matters directly and substantially in issue in two suits were not heard and finally decided by the Courts in the previous litigation. In the previous judgments, it was held that the suit for possession is not maintainable on account of some error in the sale-deed and the mutation and the suit can be filed only after correction/rectification is made in the said two documents. Furthermore after rectification of the aforenoted two documents, the petitioner got fresh cause of action to initiate the suit.
6. In the above back drop, I am of the firm view that section 11 of the Code of Civil Procedure has no applicability in the case in hand and the findings of the learned Additional District Judge are misconceived and misdirected. The impugned judgment was passed in complete oblivion of the facts of the case and the taw on the subject, thus, I have no hesitation in setting aside the impugned judgment., while invoking the revisional jurisdiction of this Court.
7. Upshot of the above discussion is that the present revision petition is allowed and the impugned judgment and decree dated 22-3-2003, passed by the learned Additional District Judge, is set aside with no order as to costs. The result would be that the judgment dated 30-3-2002, passed by the learned trial Court stands restored and the suit. Titled "Salehon Muhammad v. Mst. Sabran Bibi" shall be deemed to be pending before the learned trial Court, who shall decide the same after recording the evidence on the issues already framed.