' JAWWAD S. KHAWAJA, J.---The petitioners-plaintiffs Sardar Masih and Sohan Masih impugn the concurrent decrees of the learned trial Court dated 24-5-2005 and the learned appellate Court dated 12-7-2006 whereby a suit filed by them seeking permanent injunction to restrain the respondents from interfering in their possession over the suit-land has been dismissed.
2. Learned counsel for the petitioners has taken me through the record which shows that the parties were earlier also engaged in litigation through two consolidated suits. One was filed by the petitioners seeking an injunction to protect their possession while other suit was filed by the respondents claiming declaration of title to the suit-land and possession thereof. Both earlier suits, however, were dismissed by the trial Court and appeals filed by the parties were also dismissed by the learned Additional District Judge on 2-12-1999. The said decrees have thus attained finality:
3. Learned counsel argued that thereafter the respondents once again attempted to dispossess the petitioners-plaintiffs. This gave a fresh cause of action to them. They therefore, filed a suit out of which the present petition has arisen. The learned trial Court framed issues including that of relief.
The onus of proving all relevant issues was placed on the respondents-defendants. Both parties led evidence. The petitioners have been non-suited by the learned Courts below on the short ground that they had failed to prove their title in the suit-land and, therefore, they were illegal occupants. Learned counsel argued that the evidence was not even discussed by the learned Courts below.
4. It was contended on behalf of the petitioners that in view of their admitted possession, they were entitled to the injunction sought by them while the respondents having failed in the earlier litigation to establish title, had no locus standi to resist the suit. On this basis it was argued that the learned Courts below have committed illegality and material irregularity in the exercise of their jurisdiction and as such their decrees are liable to be set aside.
5. Learned counsel appearing fpr the respondents-defendants could not advance argurrients in reply to "the above submissions. He did, however, argue that the earlier dismissal of the suit filed by the petitioners constituted res judicata. This submission was made on the basis that it was held in the earlier litigation that the petitioners had not approached the Court with clean hands, and were, therefore, not entitled to discretionary relief by way of permanent injunction.
6. Learned counsel for the petitioners, however, drew the attention of the Court to the fact that Issues Nos.5 and 13, in the earlier litigation, had been decided by the learned trial Court together.
These issues were framed in the following terms:-- "5. Whether plaintiffs are owners in possession of the disputed property and thus entitled to a decree for declaration as claimed in the main suit? OPP.
13. Whether plaintiffs have illegally occupied the disputed property? OPD 1 to 6".
7. Both learned counsel agree that Issue No.5 was decided against the petitioners (who were referred to as plaintiffs in the above issues and the judgment). Likewise, it is not in dispute that Issues No.13 was decided against the respondents on the ground that they had failed to prove that the plaintiffs had illegally occupied the disputed property in these circumstances, it was rightly contended on behalf of the petitioners that there was no finding recorded in the earlier litigation that the petitioners had illegally occupied the disputed property. Considering the finding recorded against the respondents on Issue No.13 in the previous, suit, it cannot be held that the petitioners were in illegal occupation of the suit property. In this view of the matter, and also bearing in mind that a fresh cause . Of action has accrued in favour of the petitioners as a result of the respondents' threat to dispossess them, it cannot be said that the judgments and decrees in the previous suits operated res judjcata in the present case.
8. In the light of the foregoing discussion, I find that the impugned, judgments and decrees are not legally sustainable. The same are, therefore, set aside and the suit filed by the petitioners-plaintiffs is decreed. The respondents, as a consequence, are restrained from interfering in the possession of the petitioners.
9. The petitioners shall also be entitled to their costs.