' MOHAMMAD AZAM KHAN, J.---This appeal, by leave of the Court, arises out of the judgment and decree of Azad Jammu and Kashmir High Court dated 16th March, 2001, whereby second appeal filed by the appellants has been dismissed.
2. The facts necessary for the disposal of the appeal are that the appellants brought a declaratory suit against the defendants in respect, of Shamlat Deh' land measuring 52 kanals 10 marlas situate in village Sahalia, Tehsil Dadyal, District Mirpur, in the Court of Sub-Judge Dadyal on 25th May, 1989, claiming therein that they are owners and in possession of the suit land according to the family partition. Mutation No, 554 was attested in their favour on this basis. They claimed that Abdul Karim and Fazal Karim filed a suit against them and pro forma defendants in the Court of Civil Judge, Dadyal, which was decided in their favour and the decision remained intact up to the High Court.
They alleged that Mst. Iqbal Begum and others filed an application for partition and obtained an ex parte decree from the Revenue Assistant. On the basis of said partition deed, they have got the entry of possession recorded in the Khasra Girdawari' pertaining to year 1988 in their names. This entry is based on fraud and against the true facts and is inoperative on their rights as well as on the rights of pro forma defendants.. The defendants claimed in the written statement that the matter has attained finality in revenue proceedings up to the High Court and the suit is not maintainable on the ground of res judicata. The plaintiffs have no cause of action. After necessary proceedings, the trial Court dismissed the suit and appeal before the District Judge also failed. The second appeal before the High Court was dismissed .Vide impugned judgment on 16th March, 2001.
3. Ch. Lal Hussain, counsel for the appellants, argued that the judgment and decree passed by the High Court is against law. The appellants had challenged the proceedings of delivery of possession to the respondents of the land which is in their continuous possession. The possession was delivered by the Girdawar. There is no finding of the Revenue Authorities. No warrant of possession was issued by the Revenue Assistant, as such the possession could not be delivered. He contended that under section 146 of Land Revenue Act, 1967, the possession can be delivered within a period of three years of issuance of partition proceedings but the possession was delivered later than three years, as such, it is violative of section 146 of Land Revenue Act and is not valid. He further argued that Abdul Karim and Fazal Karim filed a suit in the Civil Court which was dismissed by the Sub- Judge Dadyal on 30th March,, 1983. He argued that the land was not allotted to the respondent at any time. In Mutation No, 554 sanctioned on 7th November, 1984, in respect of the same land, the possession of the appellants is clearly entered. He referred to the cases titled Abdul Ghani Farooqi v. Chairman, AJ&K Council and 2 others 1999 PLC (C.S.) 1527. And Sardar Muhammad Naseem Khan v. Brig. (R) Muhammad 'Akbar Khan and 7 others (2007 SCR 142(sic)).
4. While controverting the arguments, Ch. Muhammad Sabir, counsel for respondents Nos. 1 to 9, argued that there is concurrent findings of two Courts below and the High Court has affirmed the concurrent findings of the facts, therefore, the appeal is liable to be dismissed on this sole ground.
He argued that the respondents filed an application for partition of the land. The appellants participated in the proceedings and appeals from partition order failed whereby the revision petitions were brought before the Commissioner and Financial Commissioner which were also dismissed. A review petition before the Financial Commissioner also failed. The appellants filed a writ petition against the orders of the Revenue Authorities which also failed. The judgments of the Revenue Authorities in respect of the same land constitute res judicata and the suit in the presence of the said decisions is hit by the doctrine of res judicata and the High Court has correctly resolved the point. He referred to the cases titled Azad Government of the State of Jammu and Kashmir and another v. Kashmir Timber Corporation (PLD 1979 SC (AJ&K) 139), Shaikh Abdul Aziz v. Mirza and 3 others (PLD 1989 SC (AJ&K) 78) and Abdul Rahman and others v. Abdul Qadir and others (1998 CLC 401).
5. Ch. Muhammad Siddique, counsel for respondent No,10, argued that the judgments of the Revenue Authorities constitute res judicata. The appellants are barred from filing the suit on this point. He argued that the point, that under section 146 of the Land Revenue Act, the possession has to be delivered within three years, was not taken in the petition for leave to appeal nor in the concise statement, therefore, this argument is not available to the appellants and cannot be allowed to be raised. There are concurrent findings of the facts of two Courts below and the High Court affirmed the same. The judgment of the High. Court is perfectly legal on all counts.
6. We have heard the learned counsel for the parties and perused the record. The record reveals that the dispute of land between the parties is in respect of Shamlat Deh' land measuring 52 kanals 10 marlas, situate in village Sahalia, Tehsil Dadyal. Fazal Karim, the predecessor-in-interest of respondents Nos.1 to 9 and his brother, Abdul Karim, filed a suit for perpetual injunction against the appellants. The suit was dismissed on 30th March, 1983 and appeals before the District Judge and the High Court also failed. They also filed an application for partition before the Revenue Assistant, Mirpur, on 4th October, 1980. The application was accepted and the Revenue Assistant ordered for partition of the land on 28th October, 1981. The appellants resorted the remedy of appeal, 'revision and finally the writ petition in. The High Court which was dismissed. After completion of the partition proceedings partition deed 'sanad nama' was issued and the Revenue Assistant issued warrant of delivery of possession on 4th March, 1989 and in compliance of order, the Girdawar with the help of Police delivered the possession to the respondents. Respondents Nos.2 to 5 executed an agreement-to-sell in favour of respondent No,10. The appellants challenged this agreement-to-sell on 3rd May, 1989, and again filed a suit on 25th August, 1989, challenging the entries of possession.
The trial Court consolidated both the suits on 10th February, 1992 which were dismissed.
7. As is evident from the record that the respondents filed an application for partition which was accepted. The appellants resorted to remedy of appeal and revision. The order of partition attained finality up to the Financial Commissioner and ultimately the writ petition in the High Court was dismissed. The High Court and the lower Courts reached to the conclusion that in presence of decision of the Revenue Authorities in respect of the same land between. The same parties, the principle of res judicata is attracted in the case and the suit of the appellants was hit by the principle of res judicata. It was argued by the counsel for the appellants that the principle of res judicata does not apply to the suit if it was previously decided by a Tribunal or Revenue Authorities.
The principle is only applicable if the matter has been finally decided in a previous suit by the civil Court: We respectfully disagree with the contention of the learned counsel for the appellants. It is celebrated principle of law that the principle of res judicata is fully applicable to the proceedings other than the civil suits, such as the proceedings before the Revenue Authorities. The proposition came under consideration of this Court in a case titled Shaikh Abdul Aziz v. Mirza and 3 others (PLD 1989 SC (AJ&K) 78). The Court observed as under:- ' . As already observed the question whether the property in dispute was evacuee or not was subject-matter of previous litigation between the parties in which it was decided that the property in dispute is evacuee in nature. This finding is binding on both the parties and cannot be re- opened. If this point is allowed to be raised in this proceeding it would lead to anomalous situation.
When Abdul Aziz moved an application that the property in dispute was not evacuee the other party successfully raised the plea that the property was evacuee and now when he has made an application under section 23 of the Act that the property, being evacuee, may be restored to him the same party has come up with the plea that the property is not evacuee. This is not allowed by law. The issue whether the property in dispute is evacuee or otherwise directly and substantially was in issue in former proceedings and the parties were also the same. Finding on this point has resulted in a particular order. Thus, all the conditions necessary for the applicability of principle of res judiciata are present in the situation and the finding of evacuee nature of the property has the force of res. Judicata."
' In another case titled Azad Government of the State of Jammu and Kashmir and another v.
Kashmir Timber Corporation (PLD 1979 SC (AJ&K) 139), it was observed as under:-- "What is res judicata? A final judicial decision of a Court of competent jurisdiction, once pronounced between parties litigant, cannot be contradicted by any one, as against any other of such parties, in any subsequent litigation between the same parties, respecting the same subject- matter. It is founded on the principle that there should be an end to the litigation as to any issue between the same parties when once that issue has been directly and substantially determined between them by a Court of competent jurisdiction. It bars fresh litigation at the outset. Res judicata not only ousts the jurisdiction of the Court, but a person cannot be heard to say the same thing twice over, the reason being that a person cannot be harassed again and again upon the same question. A judgment delivered by a Court of competent jurisdiction operates as a bar as regards all findings which are essential to sustain the judgment."
8. The partition proceedings initiated by the respondents attained finality from the Court of Revenue Assistant to the Financial Commissioner and then in writ petition in respect of the same land between the same parties which is the subject-matter of the present suit. The suit is hit by the principle of res judicata and validly dismissed by the Courts below and maintained by the High Court on this ground.
9. The argument of the counsel for the appellants that under section 146 of the Land Revenue Act, the possession has to be delivered within a period of three years after issuance of partition deed.
The partition deed was issued on 30th December, 1982 and the warrant for possession was issued on 4th March, 1989, therefore, under section 146 of the Land Revenue Act, the possession cannot validly be delivered. On the other side, the counsel for the respondents argued that this point was not taken in the plaint, in the first appeal and in the High Court nor it has been raised in the petition for leave to appeal as well as in the concise statement, therefore, it cannot be allowed to be raised at the time of arguments. We agree with the contention of the learned counsel for the parties that a point which was not raised in the trial Court and in the appellate Courts, cannot be allowed to be raised for the first time in this Court. This Court in a number of cases has held that if a point was not taken in the lower Courts or the High Court and it involves inquiry into the facts, it cannot be allowed to be raised for the first time in this Court. In a case titled Abdul Rahman and others v.
Abdul Qadir and others (1998 CLC 401) relied upon by the counsel for the respondents, it was observed as under:-- " The point of the jurisdiction of civil Court was not taken in the written statement, or in any of the Courts below during the arguments. Thus, there is no finding on the point. Therefore, the learned counsel for the defendants cannot be heard saying at this stage that the civil Court had no jurisdiction, especially so when the defendants have submitted themselves to the jurisdiction of the civil Courts and contested the case throughout."
' In cases titled Abdul Ghani Farooqi v. Chairman, AJ&K Council and 2 others 1999 PLC (C.S.) 1527 and Sardar Muhammad Naseem Khan v. Brig. (R) Muhammad Akbar Khan and 7 others (2003 SCR 142], relied upon by the counsel for the appellants, it was held that a pure legal question can be allowed to be argued for the first time in this Court even if the same has not been raised in the written statement nor before the High Court. The question raised by the counsel for the appellants is not a pure question of law and it requires inquiry into the facts. The application for partition was accepted on 28th October, 1981 and 'sanad nama' was issued on 30th December, 1982. Admittedly the warrant for possession was issued by the Revenue Assistant on 4th March, 1989. The counsel for the respondents argued that the appellants challenged the partition proceedings through appeal before the Collector then the revision petitions before the Commissioner and Financial Commissioner, and review petition before the Financial Commissioner was ultimately decided on 16th November, 1988 and application for warrant was moved before the Revenue Assistant on 4th March, 1989. This all involves a complicated inquiry into the question of facts that on which date the partition proceedings ended and whether the application of issuance of warrant of possession was filed within limitation or not, therefore, this question cannot be allowed to be argued for the first time in this Court.
' The result of the above discussion is that finding no force in this ID appeal, it is hereby dismissed with no order as to the costs.