1. This judgment shall also dispose of Civil Revision No. 470/2009 both arising out of a common judgment dated 12.1.2009 in two appeals Bearing No. 81/13 of 2007 and 50/13 of 2007, both dismissed by Additional District Judge, Karak at Takht-i-Nasrati.
2. Brief facts of the case are that:-- Liaqat Ali sought the decree for declaration and perpetual injunction in respect of a vacant site, fully described in the plaint and comprising Khasras No. 2002, 2005 and 2006 claiming its ownership and restraining the respondents Jabbar Khan and others from raising any construction over the same without the consent of plaintiffs/petitioners. Similarly, the respondents Jabbar Khan and others also filed a suit against said Liaqat Ali, plaintiff/petitioner that they are the owners in possession of Kliasra No. 2002 (previous Khasra No. 483) and the present petitioner Liaqat Ali has no rights whatsoever in the houses already constructed, as Sher Muhammad, the predecessor of said petitioner (Liaqat Ali) had surrendered his rights of ownership in favour of Jabbar Khan and others respondents and same is in their ownership and possession as per compromise in Suit No. 412/1 decided on 12.10.1971.
3. In the first round on dismissal of both the suits the appeals were preferred, which were accepted and the cases were remanded back for consolidating both the suits, and deciding afresh. On retrial Suit No. 364/1 of Liaqat Ali petitioner was dismissed while Suit No. 365/1 of Aziz-ur-Rehman was decreed vide judgment dated 26.1.2007.
4. Two appeals Bearing No. 50/13 of 2007 Liaqat All versus Azizur-Rehman and others and No. 81/13 of 2007 Baghdad Khan versus Jabbar Khan and others against the said judgment and decree were dismissed through the impugned judgment dated 12.1.2009.
5. Bughdad Khan, petitioner was impleaded as Defendant No. 10 in Suit No. 365/1 who has challenged the judgment and decree of the learned appellate Court claiming that vide judgment and decree passed by Civil Judge, Kohat on 12.10.1971 the matter in issue amongst the parties was the extra "Jai Safaid" belonging to the petitioners/plaintiffs and occupied by the defendants/respondents beside their house constructed therein over the 5/6 marlas of land of the petitioner/plaintiff duly agreed upon between the predecessor of the petitioner/plaintiff and the respondents/defendants therefore, the lower forum erred in holding all the suit land, admittedly belonging to the ownership of the petitioner/plaintiff, by dismissing the suit of the petitioner/plaintiff and admitting the unjustified and unlawful excess claim of the respondent/defendant by accepting their claim made in the suit. As such it is alleged that lower forums have misread the oral and documentary evidence on record by exercising illegal and unlawful objection therein". In fact the grievances of Bughdad Khan are akin to those of Liaqat Ali, petitioner, he has claimed nothing as of his personal right.
6. The litigation between the parties commenced in the yeas, 1971 whereby a Suit No. 412/1 filed on 7.6.1971 by Sher Muhammad against Jabbar and others Plaintiffs/Respondents No. 1 to 3 seeking the decree for recovery of possession of a house and "Jai Safaid" comprised in old Khasra No. 483 (present Khasra No. 2002). He contended that initially when construction was being carried out, they were asked not to raise the construction but they paid no heed. During the pendency of the said suit, a compromise was effected between the parties, same was reduced into writing. As per terms and conditions of compromise, it was agreed upon "that the house consisting of four Kothas, Dewery / Courtyard situated within boundary wall and specified in the compromise deed, surrendered in favour of Jabbar and others respondents and about "Jai Safaid", it was agreed upon that it will remain with the plaintiff (Sher Muhammad) the predecessor of the present petitioner and Jabbar and others defendants would have no concern with the "Jai Safaid". In these terms the suit was decided on 12.10.1971. To this effect, statement was recorded and the suit was dismissed as withdrawn in view of the terms and conditions mentioned in the compromise deed.
7. Arguments of learned counsel appearing on behalf of the parties heard and record perused.
8. There is a tug of war over a small strip of land persisting since 1971 and first phase was laid at rest in the same year, but again subjected to litigation in between successor of Sher Muhammad and Defendants/Respondents No. 1 to 3, thereafter, both the parties agreed that matter be decided by Maulana Shaheed Ahmad, as a result of his decision, Respondents No. 1 to-3 were directed to pay a sum of Rs. 450/- to Sher Muhammad the predecessor of the petitioner, Liaqat Ali, the matter was thus finally concluded in between the parties. In this respect Maulana Shaheed Ahmed entered in witness box as DW-1 at the instance of the present Respondents No. 1 to 3, he testified about the facts mentioned above, moreover, during the trial of suit, a local commission was appointed for the spot inspection who had prepared the report Ex.CW-1/1, the local commission was examined as CW-1 his report was confirmed on 29.4.1999 after rejecting the objection of the present petitioner. It is, admitted before the local commission that controversy is relating to Khasra No. 2002. Alongwith report, site plan and statement of the parties had also been appended, which confirmed that house of the present Respondents No. 1 to 3 is situated in Khasra No. 2002 on an area around 3 kanals whereas, on the remaining area houses of Sher Wali are constructed besides a mosque, that presently there is no vacant site on the spot. Houses of Respondents No. 1 to 3 situated in two portions old one was dismantled and over the same area the new construction had been raised after year, 1971. Both the parties admitted as correct the compromise reached in between the parties in the year, 1971, as evident from the perusal of their statement. Eversince, no fresh dispute seems to have been brought for the consideration and adjudication of the Court, however, same facts and circumstances have been made the basis of dispute by the present petitioner/plaintiff.
9. On the other hand, the Defendants No. 1 to 3 had also filed a suit seeking the decree of declaration in view of the terms and conditions of compromise which culminated into decree passed in Suit No. 412/1 ibid. It is worth mentioning that policy of the law is that the litigation must be concluded forever in between the parties to the suit, so that it may bring maintenance of public order and to prove both against the unnecessary and superfluous litigation to maintain the public tranquility amongst the people, eventually to accord the conclusive effect to a lis, decided on its merits. If such safeguard or the flow of such litigation, would have not been checked and dealt with under the law, the burden of litigation cannot be reduced to overcome this anomaly, the finality attached to the litigation under various provisions of law. It is worth mentioning that the people hailing from backward areas always have been victimized through frivolous and unnecessary litigation even this phenomenon has also become popular spreading its routes even in big cities, such situation eventually creates chaos and confusion amongst the people and destabilize the state pillars. This was the reason that certain legal provisions have been introduced in the procedural law whereby attempt has been made to plug the flow of such like litigation, therefore, those provisions of law must be adhered to so as to provide safety and security to the people, who have suffered and are still suffering this tiresome process. Above all, this is the requirement of law that what has been finally and conclusively determined by a competent Court/tribunal shall be followed as irrefragable legal truth Law does not provide liberty to either party to reopen a matter at any time after it has been finally decided by a Court of law, as the rationale behind the law referred to above is that at some stage the litigation must be brought to its logical end. In this regard a reference can be made to the ratio laid down in case. 'Fir Bakhsh represented by his legal heirs and others versus The Chairman, Allotment Committee and others" reported in PLD 1987 SC 145, which is reproduced as under:--
(c) Stare decisis-- "--Res-judicata--Doctrine of stare decisis--Flexible in application and rigid adherence to doctrine excepted--Rationale behind doctrine of stare decisis is the need to promote certainty, stability and predictability of law, in criminal, fiscal and constitutional matters, for, law cannot stand still nor can Courts become mere slaves of precedents.-- What Court decides generally is the ratio decidendi or rule of law for which it is authority; what it decides between the parties includes far more than just this. Since it would be obviously impracticable if there were nO end to litigation and if either party to a legal dispute were at liberty to reopen the dispute at any time, the law provides that once a case has been heard and all appeals have been taken (or the time for appeal has gone by) all parties to the dispute and their successors are bound by the Court's findings on the issues raised between then and on questions of fact and law necessary to the decision of such issues. According to this principle these matters are now resjudicata between them and cannot be the subject of further dispute. But the. Court's findings will not be conclusive case, however, will not be bound, nor will either of the original parties be bound in a subsequent dispute with a third party"
10. Besides the provisions provided in Civil Procedure Code of 1908, there is another provision of law contained in Article 114 of the Qanun-e-Shahadat Order, 1984, the same also creates estoppel against such sort of litigation as it prevents a litigant again to come with a fresh lis in the Court of law and ask for decree in his favour, which has already been finally decided, once again inconsistent plea cannot be permitted to be raised in the subsequently instituted proceedings and does not permit to contradict his own previous act. In this view of the matter, the proceedings launched by the present petitioner not enjoying the blessing of any law as the father of the plaintiff/petitioner had already reaped the fruit of the litigation, because similar claim was dismissed as withdrawn on the basis of the compromise in between the predecessor of the petitioner and the present Respondents No. 1 to 3. During the hearing of the petition in response to a query to the counsel appearing on behalf of the petitioner he has candidly admitted that the petitioner is bound by the compromise ibid, as a result of such compromise "Jai Safaid" was declared as the ownership of the predecessor of the petitioner whereas the built up houses in Khasra No. 2002 were admitted to be the ownership of Respondents No. 1 to 3. Likewise, similar query put to Respondents No. 1 to 3, they have also agreed that they have no concern with "Jai Sufaid" as in view of the terms and conditions mentioned in the compromise ibid. In such, circumstances, when both the parties are in agreement to abide by the terms and conditions of previous compromise, therefore, it cannot be disputed or can be questioned in any manner. In this aspect of the matter, reliance can be placed on the judgment titled 'Mir Zaman versus Mst. Begum Jan and 11 others" reported as PLD1983 Peshawar 100.
11. (a)--XXIII, R. 1 read with S. 11--Withdrawal of suit--Res Judicate--Order of withdrawal based on statements of parties-- Courts, in such circumstances, bound to look into such statements in interpreting order of withdrawal or dismissal of suit in light thereof--Earlier suit withdrawn on admission and representation of plaintiff--Held, amounts to an estoppel and is binding on him".
12. Another judgment titled 'Muhammad Sama Mondal versus Muhammad Ahmad Sheikh and others" reported as PLD 1963 Dacca 816.
13. (a)--Decree--Compromise decree--Binding on parties and operates as estoppel--Civil Procedure Code (V of 1908), R. 3"
14. Not only certain actions, omissions and commissions are having binding effect as far as predecessor is concerned but the successor step into shows of his propitious is also bound to honor the commitments/ obligations of his predecessor rather he is legally bound being the beneficiary to make some result oriented efforts and to abide by the promises and the agreements made by the predecessor in his life time, keeping in view this principle of law Liaqat Ali son of Sher Muhammad, who has brought the instant suit, is under legal obligation to admit all those covenants and terms of compromise and any other legal obligation of his father as now it is a past and closed transaction. Probably this was the reason that none of the successors/heirs of Sher Muhammad Khan have come forward to question the settlement reached in between their father and respondents, they have not impleaded as party to the suit filed by Liaqat Ali plaintiff/petitioner.
15. It further lend support to the fact that they have not consented to indulge themselves in the present proceedings launched by the present plaintiff/petitioner against the settlement ibid. In above scenario, it can also be pressed into service none impleadment of necessary party is a legal defect, no explanation/reason put forward by the plaintiff/ petitioner for none impleadment of necessary parties as their absence from arena of litigation speaks of many things, however, the suit of plaintiff/petitioner is hit by none impleadment of necessary parties and whatever the reason may be is fatal for the suit of the plaintiff/ petitioner.
16. It is also to be seen as to whether the suit of the petitioner is well in time as the matter has already been concluded in the year, 1971 and it cannot be re-opened in the year, 1988 after the passage of seventeen years. It is important to note that Sher Muhammad was alive till 1975 but he has never challenged the judgment and decree passed in Suit No. 412 ibid, therefore, his successors have no legal right to challenge the same after his death operates as estoppel by judgment.
17. The two- Courts below have on proper appraisal of evidence and application of correct law non- suited Liaqat Ali plaintiff/petitioner and in the exercise of my revisional jurisdiction, I see no reason to disturb the concurrent judgments and decrees impugned herein. The same neither suffering from any irregularity, illegality nor any jurisdictional defect and are accordingly maintained.
18. Both the revision petitions are thus dismissed being without any substance and lacking any legal force, leaving the parties to bear their own costs.