1. ' ABDUL SHAKURUL SALAM, J.-This is an application for grant of a certificate for leave to appeal to the Supreme Court against the Judgment and decree in Regular First Appeal No, 6/1962 decided by late Mr. Justices A. S. Farooqui and H. T. Raymond on 3-4-1964.
2. Relevant facts for understanding the controversy may be stated as follows : An area measuring 800 kanals was purchased from the non-Muslims on 17th November, 1947 through registered sale deeds for Rs, 17,000 by Ghulam Muhammad respondent. In view of the Pakistan (Administration of Evacuee Property) Act. Ghulam Muhammad applied to the Custodian for confirmation of the sales which was allowed by the Custodian on 25-1-1950. Before the mutation could be sanctioned in favour of Ghulam Muhammad, respondent Ghulam Hussain Shah, the applicant, who was Girdawar in the Revenue Department, claimed half of the share in the land amount to 400 kanals on the ground that the property had been purchased by him and Ghulam Muhammad jointly but the latter was shown as the vendee because Ghulam Muhammad Shah being in Government Service was prohibited from buying land. He having been discharged from service in the year 1950 on account of being convicted under section 440, P. P. C. Contested the sanction of mutation in favour of Ghulam Muhammad. However, before any final order was passed, the parties entered into an agreement in writing on 14-11-1952 vide Exh. D. A. The material parts of which are as follows :-
(1) Ghulam Muhammad admits that Ghulam Hussain Shah had half share in the whole land in dispute that the purchase price was paid half and half by both the parties but the sale deeds were made only in the name of Ghulam Muhammad because Ghulam Hussain Shah was a Government servant ; that in the revenue records the land was entered in the name of Ghulam Muhammad.
(2) That Ghulam Hussain Shah was asked before the Panchayat to value the whole land and upon the valuation put by him, either he could take the whole land or. Ghulam Muhammad.
(3) That Ghulam Hussain Shah fixed the price of the whole land at Rs, 50,000 and that Ghulam Muhammad agreed to take it at that price.
(4) Ghulam Muhammad according agreed to pay to Ghulam Hussain Rs, 25,000. From this sum Rs, 3,250 were to be deducted which Ghulam Muhammad had to receive. The balance of Rs, 21,750 was to be paid to Ghulam Hussain Shah by 16th December, 1952. However if the money was not paid by that date, the same was to be recovered from the estate of Ghulam Muhammad. Sheikh Khairuddin of Mandi Chishtian became a surety for the payment of the aforesaid sum of Rs, 21,750.
(5) On payment of the aforesaid sum of Rs, 21,750 Ghulam Hussain Shah shall have nothing to do with the land in dispute and there will be no claim of his of any kind.
(6) The amount of Rs, 3,250 which had been kept as deposit with Chowdhry Shukardin was payable to Ghulam Hussain Shah and Ghulam Muhammad would have that amount made over to Ghulam Hussain from Shukardin.
2. ' Under the agreement Ghulam Hussain Shah received two sums of money from Ghulam Muhammad through the surety Shaikh Khairuddin ; the first of Rs, 5,000 on 14-12-1952 and the second of Rs, 10,000 on 4-1-1953. These receipts were acknowledged on 4-1-1952 by Ghulam Hussain Shah vide Exh. D. B. He also admitted receipt of Rs, 3,250 from Shukardin. However Ghulam Hussain Shah managed to get the mutation of half of the land in his favour sanctioned on 23-5- 1953. Ghulam Muhammad challenged the mutation proceedings by means of a suit bearing No, 56/1953 filed on 25-5-1953 in the Court of Senior Civil Judge, Bahawalpur, claiming that he himself (Ghulam Muhammad) was the sole owner of the whole land which he had purchased from the non-Muslims and that Ghulam Hussain Shah had no right therein. The suit was decreed by the learned trial Court on 31-7-1956 but the decree was set aside on the appeal of Ghulam Hussain Shah, bearing No, 33/1958, by the learned District Judge, Bahawalupr on 31-1-1959 with the result that Ghulam Muhammad's suit stood dismissed. Ghulam Muhammad's Regular Second Appeal bearing No, 12 (1) 1959/BWP R. S. A. No, 64/1959/LHR was dismissed by the High Court on 30-1-1960.
3. Thereafter, Ghulam Hussain Shah filed a civil suit bearing No, 195 in the Court of the Administrative Civil Judge, Bahawalnager came at Hasilpur on 2-5-1960 for possession of 400 kanals of land. In the written statement, Ghulam Muhammad inter alia set up the plea, on the basis of the aforementioned agreement dated 14-11-1952 Exh. D. A. That he had paid a sum of Rs, 15,000 to Ghulam Hussain Shah which the latter had acknowledged on 4-1-1953 and relinquished all his rights in the land. In the replication by Ghulam Hussain Shah, the agreement was admitted, but it was averred that Ghulam Muhammad has not paid the amount within the stipulated time. It was also added that, in any case, as the High Court had held in favour of Ghulam Hussain Shah in the previous suit of Ghulam Muhammad, the question of agreement did not arise and Ghulam Muhammad was precluded from relying on it in view of the judgment of the High Court. Various issues were framed, including the one as to whether in the presence of the decision of the High Court of West Pakistan dated 30-1-1960 in the case of Ghulam Muhammad v. Ghulam Hussain Shah for declaration about the suit land the defendant cannot raise objection about the agreement and payment of price etc. And previous decision between parties operates as res judicata. All the issues were found against the plaintiff Ghulam Hussain Shah and the suit was accordingly dismissed vide judgment and decree of the learned Senior Civil Judge, Bahawalpur on 30-1-1962.
4. ' Ghulam Hussain Shah filed an appeal bearing Regular First Appeal No, 6 of 1962/BWP. Two points were urged in support thereof, namely, (1) that the decision in the former suit filed by Ghulam Muhammad, in which he had sought declaration in respect of half the land and which was refused to him operates as constructive res judicata in the present suit and (2) that the defendant had not fulfilled his part of the agreement Exh. D. A. And was not ready and willing to fulfil it and, therefore, he is not entitled to the protection under section 53-A of the Transfer of Property Act. Both the pleas were rejected by a learned Division Bench of this Court comprising of late A. S. Farooqui and H. T.
5. Raymond, JJ. On 3-4-1964. Ghulam Hussain Shah filed an application bearing Civil Miscellaneous No, 948/S/64/LHR for grant of a certificate to file an appeal in the Supreme Court. The application was dismissed on the ground of being barred by time by a learned Division Bench of the High Court vide order dated 23-11-1965. Ghulam Hussain Shah filed a Civil Petition for Special Leave to Appeal No, 4/1966 against the judgment and order dated 3-4-1964 in Regular First Appeal No, 6/1962 and the order dated 20-11-1965 in Civil Miscellaneous No, 946/S/64/LHR. The petition was dismissed as regards the first order dated 3-4-1964, but leave was granted as against the second order dated 20-11-1965, on 26-1-1966, Consequently, in respect of order made on 20-11-1965 in Civil Miscellaneous No, 946/S/64/LHR rejecting application for grant of a certificate, Civil Appeal No, 191/1969 was filed which was finally accepted on 10-11-1974 by their Lordships of the Supreme Court and it was held that the application of the applicant under sections 109 and 110, C. P. C. For grant of certificate to file appeal in the Supreme Court, was within limitation. Therefore, the appeal was allowed and case sent back to the High Court for decision on merits. It is in pursuance of this order that the Civil Miscellaneous Application. No, 948/S/1964/LHR in Regular First Appeal No, 6/1962 for grant of certificate to file an appeal against the order in the said Regular First Appeal is to be determined.
6. ' Learned counsel for the respondent Ghulam Muhammad has submitted that after the promulgation of the 1962 Constitution of the Islamic Republic of Pakistan, the application for grant of a certificate under sections 109 and 110, C. P. C. Is not competent in view of the provisions of Article 58 of the said Constitution. He has placed reliance on The Province of W. P., Lahore v. Mian Noor. Ahmad and others (1). Learned counsel for the applicant Ghulam Hussain Shah had submitted that when the application was dismissed on the ground of limitation, the applicant filed an appeal in the Supreme Court of Pakistan and the same was allowed. If the application itself were incompetent, their Lordships would not have allowed the appeal but dismissed the same on the ground that notwithstanding that the application was within time, the application itself was incompetent in view of the Constitutional provisions. But this was not done. The appeal was allowed and the case remanded to this Court. This Court was to determine the application on its merits as directed by their Lordships of the Supreme Court of Pakistan. It is, secondly, contended that although the appellate jurisdiction of the Supreme Court is provided for in Article 58 of the Constitution of 1962, but in Article 60 it was also laid down that "In addition to the jurisdiction conferred on it by this Constitution, the Supreme Court shall have such other jurisdiction as may be conferred on it by law". It is, therefore, contended that besides the appellate jurisdiction conferred by the Constitution on the Supreme Court, the Supreme Court has also such other jurisdiction as may be conferred on it by law and such other jurisdiction in the case in hand has been conferred by sections 109 and 110 of the C. P. C., under which the application for grant of certificate has been filed and is being considered. On merits, the learned counsel for the applicant has submitted that when the mutation of 400 kanals was sanctioned in favour of Ghulam Hussain Shah, the same was challenged by Ghulam Muhammad in civil Courts and ultimately he lost when his R. S. A. Was dismissed by the High Court. In these proceedings, he ought to have urged that he had become owner of the (1) 1975 SCM R 91 laud in question in pursuance of the agreement dated 14-11-1952 Exh.
7. D. A. And he having not done so, was precluded to rely on the same in the subsequent suit and his case was hit by the principle of constructive res judicata as laid down in section 11, Explanation IV of the C. P. C. Moreso, when he had urged previously the payments made to the applicant though he had tried to explain those away but not believed. Learned counsel for the respondent Ghulam Muhammad has supported the judgment in Regular First Appeal by submitting that the question of constructive res judicata has rightly been determined in the order passed in the Regular First Appeal and no question of law arises for grant of certificate to file an appeal.
8. ' Front the facts stated above, it would be discerned that the non-Muslims sold 800 kanals of land to Ghulam Muhammad. Ghulam Hussain Shah claimed that the sales were benami. The dispute was resolved through Panchayat in which it was agreed on 14-11-1952 (Exh. D. A.) that half of the land belonged to Ghulam Hussain Shah and if Ghulam Muhammad were to pay Rs, 25,000 he could take this land. Substantial amount was paid. {{TABLE}} Notwithstanding, Ghulam Hussain Shah got a mutation of half of the land sanctioned in his favour on 23-5-1953. Ghulam Muhammad filed a suit challenging the mutation abut lost it ultimately when his R. S. A. Was dismissed by the High Court on 30-1-1960. However, he filed the suit, out of which these proceedings arise for possession on the basis of agreement dated 14-11-1952 Exh. C,. A. And has succeeded. The plea of res judicata raised by Ghulam Hussain Sihah has failed on the ground that Ghulam Muhammad could not in the fir, st suit, while challenging the mutation on the basis of the ownership of the entire land, urge that he had acquired title by relinquishment vide agreement date d 14-11-1952 Exh. D. A. By Ghulam Hussain Shah because that would have been incongruous. At this stage, relevant provisions relating to res judicat a given in section 11, Explanation IV of the C. P. C. may be referred to. These are as follows :- Section 11.-No Court shall try any suit or issue in which the matter directly and substaintially in issue has been directly and substantially in issue in a former' suit between the same parties or between parties under whom t hey or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by the Court. {{TABLE}} ' Explanation IV.-Any matter which might or ought to have been made ground of deference or attack i,.1 such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
9. ' Reference, at this stage, may also be made' to the provisions of Order VII, rule 7, C. P. C. Which is to the following effect : "Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative".
10. ' From the above provisions read together, at would follow that Ghulam Muhammad in the first suit filed by him challenging the mutation of half of the land in favour of Ghulam Hussain Shah on the basis that he was owner by purchase from the non-Muslims could and should have claimed, in the alternative, on the basis of the agreement dated 14-11-1;152 Exh. D. A. That Ghulam Hussain Shah had relinquished the rights in the la lid in dispute in his favour Ghulam Muhammad). Having not done so, he question arises whether he could set up this claim in the second suit ?
11. ' Having lost the land in dispute in the first suit, he had succeeded in apparently are retaining the lad in the second suit. The two decrees a, inconsistent in relation to the same piece of land. In the first litigation, title of Ghulam Hussain Shah was accepted and in the second title of Ghulam Muhammad has been accepted with reference to the same land. Application of the principles of res judicata in the circumstances of the case appears to require authoritative decision.
12. ' At this stage the contention of the learned counsel for Ghulam Muhammad respondent may be adverted to. He contended that after enforcement of the 1962 Constitution, no appeal lay to the Supreme Court sections 109 and 110, C. P. C. Therefore, question of grant of certificate to file an appeal in the Supreme Court does not arise. He referred to The Province of West Pakistan, Lahore v.
13. Mian Noor Ahmad and others which supports his contention. It was laid down in that case Oat "on the enforcement of the 1962 Constitution, appeals in civil mattes lay to this Court only by special leave of the Court under Article 58. No appeal lay thereafter from the judgment, decree or order passed by the High Court under sections 109 and 110 of the Code of Civil Procedure It was so held by this Court in the case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (1). In this view of the matter, or certificate to file an appeal can be granted to the applicant. But the contention of the learned counsel for the applicant is that the applicant's appeal against dismissal of the application on the ground of limitation was allowed the Supreme Court and case remanded to this Court. If the application veer incompetent, their A Lordships of the Supreme Court would have dismissed the appeal on the short ground that notwithstanding the question of limitation, the application was otherwise incompetent. He has referred to Article 60 of the Constitution which provides that "in edition to the jurisdiction conferred on it by this Constitution, the Supreme Court shall have such other jurisdiction as may be conferred on it by law". He read out a passage from the commentary of M. Munir, former Thief Justice of Pakistan, on the Constitution of the Islamic Republic of Pakistan 1962 under Article 58 of the Constitution at page 290 which is to the following effect : "By Article 60 read with Article 131 and Iter 38 of the Third Schedule, the Supreme Court has, in addition to lie jurisdiction conferred on it by the Constitution, such other jurisdiction as may be conferred on it by law. Thus, the Supreme Court has jurisdiction to hear appeals in income-tax case under section 66-A of the Income-tax Act, 1922. Sections 109 ant 110 of the Code of Civil Procedure and Order XLV of the First schedule to that Code provide for appeals to the Supreme Court in civil cases. By virtue of Article 225 of the Constitution, these provisions are a part of the existing law of Pakistan and, therefore appeals from decrees in civil cases lie to the Supreme Court in accordinance with and subject to those provisions."
14. ' After quoting sections 109, 110 and 111 of the C. P. C., the learned author concluded that "the jurisdiction conferral by these sections is not a constitutional jurisdiction but only jurisdiction conferred by law".
15. ' Under the Constitution of 1973, the position remains as before. The learned author in his Commentary on Article 85 of the Constitution at page 354 observed as follows :- "Certificated appeal.-Appeal by Light also to the Supreme Court if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution."
(1) P L I) 1970 SC ' The Supreme Court has also jurisdiction in respect of certain matters which are conferred on it by an existing law, e. g. By section 66-A of the Income-tax Act, 1922 and sections 109 and 110 of the Code of Civil Procedure, 1908.
16. The argument of the learned counsel for the applicant will lead to Article 58(2) of the 1962 Constitution and Article 185 of the 1973 Constitution which provide that "an appeal to the Supreme Court from a judgment, decree, or order or sentence of a High Court shall lie as of right where (a) the High Court certifies that the case involve a substantial question of law as to the interpretation of this Constitution".
17. ' The matter in hand as to the grant of certificate to appeal, in view of the submissions of the learned counsel for the applicant, appears to involve substantial question of law as to the interpretation of the Constitution, especially when the application was remitted to this Court and not dismissed as incompetent by the learned Supreme Court itself.
18. ' In view of all what has been stated above, it is certified that the case is a fit one for appeal to the Supreme Court and the matter in hand involves substantial question of law as to the interpretation