' JAWWAD S. KHAWAJA, J.---The petitioners/defendants impugn the appellate judgment and decree, dated 23-4-1998, whereby a declaratory suit tiled by Muhammad Saleem respondent/plaintiff seeking permanent injunction by way of consequential relief has been decreed.
2. Although the record of this case is voluminous, the factsnecessary for its disposal are simple. The property in dispute is comprised in Khasra No.319. It is not disputed between the parties that the property was composite in nature comprising of a shop and a residential portion. Initially, the entire property was allotted by the Settlement Department to one Abdul Rahman vide order of the Deputy Settlement Commissioner, dated 30-2-1959. Two persons, namely, Ghulam Muhammad and Kaka (from whom Muhammad Saleem respondent/plaintiff derives title) assailed the aforesaid order in appeal. The Additional Settlement and Rehabilitation Commissioner, vide order, dated 18-4-1960, set aside the order, dated 30-2-1959 and held thatAbdul Rahman was not entitled to transfer of the residential portion, which is not in his possession.
3. Feeling aggrieved of the aforesaid order, Abdul Rahman filed a revision petition, which was dismissed by the Settlement and Rehabilitation Commissioner vide order, dated 3-8-1960. The concluding paragraph of the said revisional order, being of relevance, is reproduced as under:-- "The shop and the residential portion are quite separate and independent units. The transferee cannot justifiably claim the residential portion. I, therefore, agree with the findings of the Additional Settlement Commissioner and reject the revision."
' This order attained finality because it was not further challenged by Abdul Rahman. According to learned counsel for the petitioners, Abdul Rahman continued to occupy the shop and also, at a subsequent date, raised construction on the roof of the shop. One Bashir Ahmad (predecessor of the respondent/plaintiff'} filed a declaratory suit on 25-1-1981, in which he made a twofold claim.
Firstly, he set up the plea that the shop transferred to Abdul Rahman measured 10' x 22' only.
Secondly, it was his case that the roof of the shop, which included a chobara and a part of the residential portion, was transferred to Ghulam Muhammad and Kaka, mentioned above, and, therefore, Abdul Rahman had no right or title thereto. This is the, crux of the dispute between the parties.
4. The petitioners claim title to the shop and its roof having purchased the same from Abdul Rahman. The respondent/plaintiff Muhammad Saleem, on the other hand, claims title, which originally came to vest in Ghulam Muhammad and Kaka and was thereafter asserted by Bashir Ahmad as their successor, in the declaratory suit, mentioned above, and then was acquired by the respondent/plaintiff through purchase. The suit filed by Bashir Ahmad was dismissed for non- prosecution on 21-2-1985, which dismissal has attained finality because the same has not been challenged or set aside.
5. The dismissal of the earlier suit filed by the predecessor-ininterest of the respondent/plaintiff should have ended the controversy between the parties. However, after acquiring title in the residential portion, the respondent/plaintiff tiled another declaratory suit on 22-3-1994, out of which this revision petition has arisen. In the plaint, the respondent/plaintiff repeated the prayer made in the earlier suit by his predecessor Bashir Ahmad. In the light of the dismissal of the earlier suit, this suit should also have been dismissed. However, the learned trial Court proceeded to frame as many as ten issues on which the parties led evidence. Issue No.5 relating to res judicata was framed but wasdecided against the petitioners/defendants on the ground that the earlier suit filed by Bashir Ahinad had not been finally adjudicated. Before me, learned counsel for the petitioners contended, as noted above, that the earlier suit had been dismissed on 21-2-1985 and the said dismissal had attained finality. Learned counsel for the respondents did not controvert this submission. Secondly, on this issue, the learned trial Court had held that the present plaintiff "had not denied his right in the suit of Bashir Ahmad". I have not been able to understand the meaning or relevance of this observation. The dismissal of the earlier suit was made under Order 9 Rule 8, C.P.C., as is evident from the order of dismissal, dated 21-2-1985, which shows that the defendant was present. In the circumstances, the provisions of Order 9 Rule 9, C.P.C. Are attracted in the case.
As a consequence, Bashir Ahmad initially the respondent/ plaintiff as his successor-in-interest were precluded from filing a second suit on the same cause of action, even if no adjudication on merits had been made in the earlier suit.
6. In addition to the above, it is clear from the record that AbdulRahman as the allottee, and thereafter the present petitioners/defendants, as his successors-in-interest, are in continuous possession and beneficial enjoyment of the shop, together with the roof on top of it. This circumstance is conclusively established through proceedings, which were initiated by the above named Bashir Ahmad against the petitioners through Criminal Original No. 27-C of 1982. In the order, dated 4-4-1982, in this petition, it has been noted that certain construction had been carried out by Abdul Rahman allegedly in violation of a restraining order. The criminal original petition was, however, dismissed on 28-3-1992. The two orders, dated 4-4-1982 and 28-3-1992 have been duly brought on record as Exh.P-26 and Exh.P-28. From these orders, which were passed much before the filing of the present suit, read in the context of the allegations made in the petition, it is abundantly clear that Abdul Rahman was in possession and beneficial enjoyment of the disputed shop and its roof.
7. Here I may add that neither Bashir Ahmad in the earlier suit nor the respondent/plaintiff in the present suit have been able to prove their possession over any portion of the shop or the use of its roof. On the contrary the grounds of appeal set up by Ghulam Muhammad and Kaka before the Additional Settlement Commissioner, whereby they had assailed the order of the Deputy Settlement Commissioner, dated 30-2-1959, are instructive. They specifically pleaded that the entire property consisted of one shop and a house "quite independent of the shop". They also acknowledged that the shop was in possession of Abdul Rahman and attached a plan of the property along with their memo. Of appeal. The grounds of appeal have been brought on record as Exh.D-3, while the plan, submitted with it, is Exh.D-4. The other evidence alsoshows that the petitioners were in possession of the shop and its roof. These documents and evidence leave me in no manner of doubt that the residential portion, being distinct and separate, was in the occupation of Ghularp Muhammad and Kaka aforesaid, while the shop was in the exclusive occupation and use of Abdul Rahman.
8. Unfortunately, the learned Courts below have not taken note of the above aspects of the :case, which, in my opinion, are conclusive for the purpose of determining the controversy between the parties. The controversy, it appears, arose because of an observation made in the order (Exh.P-6) dated I8-4-1960 passed by the Additional Settlement and Rehabilitation Commissioner. It was noted in the said order that "the property comprises of one shop with a residential portion on top and at the back of it". This observation has been relied upon by the learned Courts below without examining the context and the subsequent portion of the aforesaid order (Exh.P-6). The finding of the Additional Settlement Commissioner is that Abdul Rahman was not entitled for transfer of the residential portion "which is not in his possession". The crucial question, therefore, was of possession. Even if the order (Exh.P-6) is taken to mean that the roof of the shop was part of the residential portion, it follows from the above order that this portion, even though forming part of the residential portion, was not transferred to Ghulam Muhammad and Kaka (predecessors of the respondent/ plaintiff). Possession of the shop and construction on its roof by Abdul Rahman having been conclusively established for the reasons discussed above, it follows that the respondent/plaintiff, as successor-in-interest of Ghulam Muhammad and Kaka, could assert no claim over the roof of the shop.
9. In the above circumstances, the impugned decree is set aside and, as a consequence, the suit of the respondent/plaintiff is dismissed with costs throughout.