1. ' This is a second appeal by the defendant-appellant against the order of remand passed by the learned District Judge Kotli, vide his order dated 12-6-1979.
2. ' Plaintiff-respondent, Sakhi Muhammad brought a suit for possession of the land in suit on the ground that it was originally acquired by him from the Government as a tenant and possession of the same was delivered to the defendant through an agreement for which he received a sum of Rs, 120, wherein it was promised that the property in dispute would be sold to the defendant-appellant on receipt of its market value prevalent at the time of registration of the conveyance deed to be made. But instead of obtaining the sale-deed, the defendant, in collusion with the Revenue Officials, got the mutation of the land in suit sanctioned in his favour which mutation was thus sought by him to be cancelled and relief of possession of the land in suit was also claimed thereof.
3. ' The grant of `Khalsa' land in suit by the Government under `Ailaan' No, 17 to the plaintiff- respondent is admitted by the defendant-appellant and it was further asserted in the written statement that the same was transferred to him by way of an instrument which was described as an agreement, a certified copy of which was also brought on record and it was also disclosed by the defendant-appellant that the former suit for the property in suit having the same subject- matter i. e. Cause of action, instituted by the plaintiff-respondent, was dismissed by the trial Court as it was withdrawn by the latter (plaintiff) on score of a compromise arrived at between the parties. The trial Court, in view of the pleadings of the parties, framed the issues as follows:- (1)Whether instant suit is hit by the doctrine of res judicata and, therefore, liable to be dismissed? 0.
4. P. D.
5. (2)Whether mutation No, 433 of the land in suit for being contrary to facts, was wrongly attested by the Revenue authorities in favour of the defendant. ? 0. P. P.
6. (3)Whether plaintiff is entitled to the possession of land in suit and on what conditions? 0. P. P.
7. (4)Relief.
8. ' The trial Court found issue No, 1 in favour of defendant-appellant and resultantly the suit of the plaintiff-respondent was dismissed with costs. As the suit was dismissed on a law point, no need to give any findings on issues Nos. 2 and 3 was felt by it though these were also the issues involving points of law in a way and the facts of the case stood admitted.
9. ' The Counsel for the parties were heard.
10. ' On issue No, 1, a judicial file of the former suit in respect of the land in suit was also brought before the trial Court so as to look at the same. Along with the circumstances of the instant case. The original instrument, namely, agreement is found attached with the previous file of the former case of the land in suit. It was admitted by the plaintiff-respondent therein without any exception whatsoever. Its certified copy 'DA' was also brought on record. As a matter of fact, the former suit filed by the plaintiff-respondent for the same subject-matter against the defendant-appellant was proved by the latter. To the proof adduced by the defendant, there was no rebuttal made by the plaintiff-respondent. There is no denial to the fact that both the suits (1. e. Previous suit as well as the instant one) pertain to the same subject-matter between the same parties. It was to be seen whether doctrine of res judicata was applicable here in this case or not. The trial Court came to the conclusion that res judicata was a bar to the institution of the instant suit but on appeal to the District Judge it was held by him that the provisions of section 11, C. P. C. Were not on the whole attracted in this case as, according to him, the previous suit filed by the plaintiff-respondent was not decided on merits. However, he gave indication that for withdrawal of the previous suit without permission of the Court, some other provision of law was applicable to bar the fresh institution of the suit. It was so remarked by the learned District Judge presumably referring to Order XXIII, rule 1(3), C. P. C. But instead of acting upon this view of the matter, he deemed it advisable that the case should be remanded to the lower Court so as to give a finding to the effect whether withdrawal of the suit without leave of the Court was a bar to the fresh institution of the suit for the same cause of action between the same parties or not? And further it was also deemed proper by him that the trial Court should also give its finding on issues Nos. 3 and 4.
11. A perusal of the old file of the case in respect of the alleged suit shows that it was on a compromise arrived at between the parties that withdrawal if the suit was made by the plaintiff- respondent and it was thus in pursuance he withdrawal of the case that the previous suit of the plaintiff-respondent w. Dismissed by the trial Court on 2-8-1967. It would thus be deemed that the previous suit of the plaintiff-respondent was dismissed on merits. The decree of dismissal of the suit of the plaintiff-respondent in a way, determined the matter in issue against the plaintiff- respondent in its entirety and that decree being a final one, against which no appeal or revision, as the case may be, could possibly be made by the plaintiff-respondent, that is to say that it assumed the character of finality and thus it could very well be treated as a consent decree because withdrawal of previous suit was in pursuance of compromise arrived at between the parties.
12. ' The instrument on the strength of which the land in suit was transferred to the defendant- appellant, is in fact not an agreement but a complete sale in itself of the land in suit. In November, 1950, when the instrument was reduced to writing, there was no machinery set up by the Government for the purposes of registration of documents and so this instrument which, as matter of fact, is a 'sale-deed, is saved from the operation of compulsory registration as it has been held in a number of cases by this Court. Therefore, compromise previously reached between the parties in respect of the transfer of absolute right which had once vested in the plaintiff-respondent, was very well within the bounds of law. A huge amount as consideration money was received by the plaintiff respondent for sale of the land in suit to the defendant-appellant. Therefore, dismissal of the suit on withdrawal of the suit without the permission of the Court to institute a fresh suit definitely amounted to adjudication of the case on merits. In view of this matter, the plaintiff- respondent was not entitled to possession of the land in suit in any manner and no challenge could legally be made to the mutation of the land in suit in favour of the defendant-appellant which was attested in pursuance of a decree of dismissal of former suit of the plaintiff-respondent.
13. The principle of res judicata was very much attracted here in the aforesaid circumstances of the case. Section 11 of the C. P. C. May not be exhaustive; and in the circumstances above, there is no bar to apply the principle of res judicata in the instant case. Furthermore, Order XXIII, rule 1(3), C. P.
14. C. Expressly bars the bringing of a fresh suit if the previous one is withdrawn without permission of the Court. The previous suit was evidently withdrawn without the leave of the Court and so the plaintiff-respondent was also not entitled to bring a fresh suit on the same cause of action, i. e.
15. Subject-matter against the defendant-appellant. When the learned District Judge had himself come to the conclusion that in view of Order XXIII, rule 1(3), C. P. C. The fresh institution of the suit was barred, he ought not to have remanded the case to the trial Court to put it on to a futile exercise to be made at the of time etc. Thus there was nothing wrong in the attestation of mutation No, 433 of the land in suit and the plaintiff-respondent having left no title of the same for himself would have had no recourse to a Court of law to seek its possession in any manner.
16. ' Therefore, for the reasons above, this appeal is accepted and the impugned order of the learned District Judge, Kotli in remanding the case to the trial Court is set aside and that of the trial Court is restored.