' SARDAR SHAUKAT HAYAT, J.---Facts narrated in brief are that plaintiff/petitioners filed a suit in the Court of Civil Judge-VII, Nowshera against the defendants/respondents for declaration, possession and perpetual injunction challenging the entry in the revenue record whereby defendant No,1 is entered Khata Sharik owner through exchange, and claiming that the real owners in khasra No, 1846 are the plaintiffs.
2. Defendants were put on appearance by the learned trial Court, who on their appearance without filing written statement, filed an application under Order VII, Rule 11, C.P.C. Stating therein that prior to the institution of present suit an earlier suit between the predecessor of the plaintiff/petitioners and defendant No,1 himself was decided in favour of defendant No,1 in 1982. The appeal and revision by the plaintiff/petitioners were also dismissed and plaintiff/petitioners were declated as khata sharik owners on the basis of exchange in the disputed khasra number.
3. Similarly, the suit of the plaintiff is time barred and is liable to be dismissed. Plaintiffs submitted the reply. The learned trial Court after hearing the parties on the application of the defendants dismissed the suit of the plaintiffs/petitioners under Order VII, Rule 11, C.P.C. On 18-9-2008 on the ground that the suit of the plaintiffs is hit by doctrine of res judicata, the suit is also time barred.
4. Appellate Court also dismissed the appeal of the petitioners vide order dated 13-10-2009. Hence the instant petition.
5. Learned counsel for the petitioners argued that the suit of the petitioners is not hit by the doctrine of res judicata as neither petitioners nor predecessor-in-interest of petitioners were parties in the previous suits, nor there exists any decree passed in favour of respondent No,1 against the petitioners by a competent court of law. He further argued that predecessor-in-interest of petitioners/plaintiffs Nos.1 to 12 Ghulam Habib and predecessor-in-interest of petitioners Nos. 13 to 16 namely, Banaras Khan never remained parties of the previous suits as mentioned by defendant No,
1. And that the learned courts below fell into error by accepting the plea of defendant No,1 merely on the production of certain judgments, from where it cannot be ascertained that predecessor of petitioners was party to the earlier suits. He further argued that neither the written statement was filed by the defendants nor any issue material on the point was framed by the trial Court. Reliance was placed on 2008 SCM R 1037, 2001 M LD 1785 and 2003 SCM R 1284.
6. While on the other hand, counsel for the respondents argued his case only on point of limitation that the suit of plaintiffs is time barred. Learned counsel did not controvert the arguments of the counsel for the petitioners regarding the suit already decided between the parties. Learned counsel argued that according to the revenue record predecessor of the defendants are entered in possession of the suit property since 1928-29 and are owners on the basis of exchange and that the plaintiffs were aware of the long standing entry in the revenue record in favour of respondents, hence the suit of the plaintiffs is time barred. Reliance was placed on AIR 1943 Peshawar 83, 1989 CLC 1571 and PLD 1985 SC 153.
7. Arguments heard. Record perused. From perusal of the plaint, it transpires that a declaratory suit along with permanent injunction and possession is filed by the plaintiffs/petitioners to the effect that petitioners are owners in possession of the suit property. And petitioners or their predecessor have never exchanged their property and entry in the revenue record as such is illegal and liable to correction. On summoning of the defendants/respondents, without filing written statement, they filed an application under Order VII, Rule 11 with a prayer for dismissal of suit. Along with the application, judgments of the earlier suit were attached with the contention that in the earlier suit regarding the same subject matter, predecessor of the petitioners and the defendant No,1 were the parties, which have been decided in favour of the defendant No,
1. The learned trial Court without framing an issue in this regard and without asking for pro and contra evidence to determine the fact that whether the earlier suits were with respect to the same subject matter and also that the parties in earlier and in the present suit are the same, dismissed the suit of the plaintiffs. During arguments before this court, the learned counsel for the respondents also could not controvert the arguments of the learned counsel for the petitioners that there was no sufficient material before the trial Court to determine the fact that in the earlier suit and in the present suit parties were the same. Rather fairly conceding this point, the learned counsel for the petitioners argued his case only on the point of limitation that the suit filed by the plaintiffs is time barred as there is a long standing revenue entry in favour of the defendants, which have been challenged now after lapse of considerable time.
8. So far as the point of limitation is concerned, the courts below have non-suited the plaintiffs on the point of res judicata, and the suit was held time barred. The courts below did not discuss the available record regarding the suit to be time barred, nor framed any issue on this point or asked the parties to adduce pro and contra evidence in this regard. If the learned trial Court was of the view that the case to be decided under res judicata or Order VII, Rule 11, C.P.C. Or on point of limitation, it ought to have framed a preliminary issue in this regard and after the evidence on this point by the parties, decided the dispute.
9. As discussed above, this Court while accepting the instant petition, set aside the impugned judgment of the courts below and the case is remanded back to the trial Court to decide afresh after framing preliminary issues with regard to Order VII, Rule 11, C.P.C., res judicata and limitation.
The parties be also given opportunity to produce their pro and contra evidence. C.M.368 of 2010 also stands disposed of.