JUDGMENT AMIN-UD-DIN KHAN, J. --Raja Muhammad Sohail Iftikhar, Advocate stated that he is only appearing on behalf of petitioner No.3. No one appeared on behalf of other petitioners which are 108 in numbers.
2. This civil revision has been filed against the judgment and decree passed by the learned Additional District Judge, Rahimyar Khan dated 3-4-1994, whereby he accepted the appeal and set aside the judgment and decree passed by the learned Civil Judge, Rahimyar Khan dated 20-11- 1986, whereby suit of the petitioners was decreed. The petitioners filed a suit on 11-7-1980 for declaration that they be declared owners of the suit property. The suit was contested and after full trial the learned Civil Judge decreed the suit but in appeal the learned Additional District Judge reversed the findings of the learned trial court on Issues Nos.1, 4-A and 5.
3. Heard. Record perused.
4. The learned Additional District Judge noted, that Exh.D-1 certified copies of the plaint instituted by some of the plaintiffs of the present suit against the defendants for present suit in which judgment and decree was passed on 30-7-1960 and the learned Civil Judge, Rahimyarkhan framed the following three main issues:- "Issue No.2.---Whether the sale of land comprising specific number on behalf of the defendant No.1 in favour of the defendants Nos.12 to 21 is illegal as the land is in undivided Khata?.
Issue No.3.---In case Issue No.2 is proved in favour of the defendants Nos.2 to 4 whether' the defendants Nos.12 to 21 were not owners of the land and as such the sale of land in favour of the plaintiff is inoperative and illegal?
Issue No.4.---Whether the plaintiffs are owners of the land in dispute? "
5. The learned Additional District Judge noted in Issue No.2 supra the sale of specific numbers on behalf of Abdul Aziz in favour of Khushi Muhammad and others and also their re-transfer in favour of the then plaintiffs was otherwise valid and that those transactions did not exclude the defendants right for adjustment at the time of partition. The above quoted Issue No.3 was decided by the learned Senior Civil Judge Rahimyarkhan against the defendants. The learned Additional District Judge also noted that Issue No.4 quoted above, the learned Senior Civil Judge explicitly held that those plaintiffs were co-owners in the joint holding containing the subject matter of that suit and those plaintiffs will be deemed to be in joint possession of the subject matter of that suit.
The subject matter of the suit was the same land which was the subject matter of this suit. In this way Issue No.4-A already stood decided in the findings that had been entered by the then learned Senior Civil Judge relating to the above quoted Issues Nos.2 to I 4, therefore, the learned Additional District Judge has ordered that those findings. Will operate as res judicata between the parties to the present suit The learned Additional District Judge has rightly observed in the light of PLD 1972 Peshawar 115 that it is not necessary that bar of res judicata must be pleaded by the defendant. It is well settled law that the court itself has the power and duty to implement and apply correct law in the proceedings. The findings of the learned first appellate court that Issue No.4-A became redundant in the light of section 11, C.P.C. As this cause of action previously between the same parties has been decided on merit. Therefore findings of learned first appellate court are affirmed in this issue. The claim of plaintiffs/petitioners is self-contradictory. In the first breath they claimed ownership of the property and in the next breath they claimed that due to the hostile possession for more than 12 years they have become owners on the basis of adverse possession, even the shelter of section 53-A of Transfer of Property Act is not available to the plaintiff, this weapon can be used in defence only. As I noted above, it is a contradictory plea, therefore, it is not permissible under the law. Even otherwise when plaintiffs/petitioners have claimed the ownership of the land they are restrained from claiming the disputed property on the basis of the adverse possession, when the findings on Issues Nos.4-A and 5 are recorded against the plaintiffs. In the light of these findings the suit filed by the plaintiffs is clearly time barred. The plaintiffs have filed this suit with regard to the cause of action which shows that after 40 years of the cause of action the suit has been filed in the year 1980. This suit was clearly time-barred. Learned counsel for the petitioners has failed to show any misreading or non-reading of evidence and jurisdictional defect in the judgment of the first appellate court. I have seen no illegality or irregularity or jurisdictional defect in the impugned judgment and decree passed by the first appellate court dated 3-4-1994.
For what has been discussed above, this civil revision having no merit is dismissed..