' MAZHAR ALAM KHAN MIANKHEL, J.--- The present petitioners being the legal heirs of one Mulla Jan and Shahi Muhammad Khan, being defendants in a suit for declaration filed by respondents, have questioned the concurrent findings of the two Courts below whereby suit of the plaintiff/respondents was decreed in their favour by Senior Civil Judge/A'ala Illaqa Qazi, Dir at Timargara vide his judgment and decree dated 23-4-1998. The appeal of defendant/petitioners against the same was dismissed by learned Additional District Judge/Izafi Zilla Qazi, Dir Bala Camp Court Warri, vide his judgment and decree dated 10-4-2000. Hence, instant revision petition.
2. The learned counsel for the petitioners submitted that the sale in their favour vide registered sale-deed dated 29-8-1969 was established on the record but the two courts below have unlawfully granted a decree in favour of plaintiff/respondents. He further argued that the present suit, being hit by principle of res judicata, is not maintainable, as the subject-matter of the present suit was already decided by the competent court of law between the same parties. His next argument was that the principle of estoppel is also in the way of plaintiff/respondents, as in the earlier round of litigation of pre-emption they had admitted the sale in question in favour of present petitioners. The learned counsel for petitioners further submitted that plaintiffs Nos.2 and 4 through their separate applications had withdrawn their claim against the present petitioners which in fact is admission on their part so after such withdrawal, at least their share should not have been decreed in favour of remaining ' plaintiffs. His last leg of argument was that the above- said admission in the shape of withdrawal of their claim was also binding on the other co-plaintiffs 'and submitted that the findings of the two courts below suffering from gross illegalities and irregularities, are liable to be set-aside. The learned counsel for petitioners relied on 1983 SCM R 1109,. "Ch. Rehmat Ali v. Haji Jan Muhammad and others" (PLD 1983 Supreme Court 46), "Asif Jah Siddiqi v. Government of Sindh and others" (PLD 1982 SC 146), "Abdul Majid and others v: Abdul Ghafoor Khan and others" (1990 'CLC 1609 [Peshawar]) "H. Gharibullah v: Mst. Mumtaz Begum and others", (2009 SCM R 589)."Gul Rehman v: Gul Nawaz Khan".
' As against that, the learned counsel for plaintiff/respondents submitted that the plaintiff/respondents are the residents of village Kaman Gara and belong 'to Tall Hassan Khel, whereas the alleged vendors of the present petitioners are admittedly residents of Nagrai Payn and belong to Tall Jalal Khel, who owned no property in their village and the alleged sale in favour of defendant/petitioners by the residents of Nagrai Payn is fake, frivolous and fictitious and the same was rightly turned down by the courts below. While replying to the arguments of learned counsel for petitioners regarding res judicata and estoppel, the learned counsel submitted that the question of res judicata and estoppel does not arise in this case and if any, has already been decided by the apex Court of the country in an appeal filed by the present petitioners vide its judgment dated 18-6-1995. The reply of the learned counsel regarding withdrawal of claim of some of the plaintiffs was that the suit in hand was a representative suit and withdrawal of some of the representatives cannot affect the rights of the entire tribe/village. He further argued that just after their withdrawal from their claim, they were, accordingly transposed as defendants, but during the trial they failed to appear as witness to support the version given in their respective applications and requested for dismissal of instant revision petition.
3. The learned counsel for the parties were heard and record of the case was perused.
4. This case has a chequered history starting from the alleged sale dated 29-84969 in favour of present petitioners. Since at the time of sale, customs and usages had the status of law in the region, so the plaintiff/respondents through their application dated 29-1-1970 to the Tehsildar Timargra under their local law/Riwaj, expressed their concern regarding a sale in favour of Mulla Jan, predecessor of petitioners Nos.1 to 7 and in alternate exercised their right of pre-emption against the sale. By this time they had no details of sale and the property sold. For ready reference, the application of the plaintiff/respondents is reproduced below:--- {{URDU TEXT}} ' This application of the plaintiff/respondents was considered as suit for pre-emption and was sent to. Assistant Commissioner for trial who vide his judgment dated 24-4-1973 dismissed the same but in appeal the case was sent back to the court i,e, Deputy Commissioner, Dir vide his order dated 20-4-1974.
The moot question for the remand was whether the alleged vendors of the present petitioners, residents of Nagrai Payn, Tall Jalal Khel were having any landed property in village Kaman Gara Tall Hassan. Khel or not, but this moot question involved in the case was never decided by any competent forum and the suit was dismissed on A technical ground of non-affixation of court-fee and non-payment of costs. These findings were upheld in that hierarchy. The plaintiff/respondents, in this view of the matter, were compelled to file a proper suit for declaration by challenging the alleged sale dated 29-8-1969 regarding their land situated in village Kaman Gara, Tall Hassan Khel, on the plea that the residents of village Nagrai Payn Tall Jalal Khel being the vendors of the present petitioners have no landed property in their village and sale in favour of present petitioners is thus illegal, unlawful, void ab initio. In this suit, the alleged vendors of the present petitioners were also arrayed as defendants besides the present petitioners who had filed their written statement in the case but strange enough that they had denied the factum of sale in favour of present petitioners.
' The trial Court after recording of pro and contra evidence, granted a decree in favour of plaintiff/respondents vide his judgment and decree dated 3-4-1984 but the Appellate Court while allowing the appeal of present petitioners dismissed the suit of plaintiff/respondents vide its judgment dated 17-1-1985. The plaintiff-respondents then filed Civil Revision No,238 of 1985 in this court which was allowed and judgment and decrees of both the courts were set aside and the case was sent back to the trial Court with certain observations vide its judgment dated 22-7-1992: The present petitioners then preferred appeal before the apex Court but their appeal was dismissed by the Supreme Court of Pakistan vide its judgment dated 18-6-1995 and maintained the decision of this Court in the above noted civil revision.
' The Senior Civil Judge/A'ala Illaqa Qazi, Dir at Timargara, after remand once again decreed the suit of plaintiff/respondents and appeal of the defendant/petitioners there against was also dismissed by learned Additional District Judge/Izafi Zilla Qazi. Hence, present revision petition.
5. The argument of learned counsel for petitioners that the instant suit of the plaintiff/respondents-, is barred by principle of res judicata, in my opinion, would have no force, as the same issue was also discussed and decided by the apex Court ih C.P.L.A. No,795 of 1992, vide its judgment dated 18- 6-1995. Besides, to further elaborate this issue, we have to go for the sale-deed which itself is ambiguous nor refer to any specific property. The payment of sale consideration mentioned in the said deed has not been proved on the record. Similarly, nothing of the sort has been brought on the record that the vendors of the present petitioners who belong to Tall Jalal Khel, residents of village Nagrai, have any landed property in village Kaman Gara, which is the sole ownership of the residents of the village Kaman Gara who belong to Tall Hassan Khel. The plaintiff/respondents as were not in knowledge of vendors, property sold and the sale consideration, so had moved the Tehsildar through the above said application dated 294-1970 and in alternate they also expressed their, intention to exercise their right of preemption against the said sale.
This application as discussed above was treated as the preemption suit and was dismissed merely on technical grounds. No specific decision regarding the factum of sale and any share of the vendors of the present petitioners in the lands of village Kaman Gara was ever made by the then hierarchy.
' The plaintiff/respondents, thus were compelled to file instant civil suit, so the earlier decisions cannot be held to have been based on merits of the case and thus the same cannot be held as , a res judicata.
' Similarly the question of estoppel also cannot arise. The other argument of the learned counsel for the petitioners that plaintiffs Nos.2 and 4 had 'admitted the claim of petitioners, too would have no force at all, as the applications moved by two plaintiffs were only with regard to simple withdrawal of their claim. The argument to the extent of plaintiffs Nos.2 and 4 that the suit should not have been decreed in favour of plaintiff/respondents also appears to be misconceived, as there was nothing on the record to prove that the vendors of petitioners had any landed property in village Kaman Gara. Even the alleged vendors of the petitioners who were made party to the instant suit have denied the factum of sale and receipt of sale consideration. Furthermore, it was a representative suit and mere withdrawal as a representative would not D affect the rights of entire tribe/village and their withdrawal in the circumstances, would not affect the rights of other people.
The case-law referred and relied upon by the counsel for petitioners, in the circumstances, was not applicable and was distinguishable.
' The defendant/petitioners bitterly failed to establish their stance. They have failed even to refer/point out any piece of evidence which could be said to have been misread or non-read by the Courts below: The findings of the Courts below are within their legal competence and no jurisdictional defect was there to make a room for interference.
' So, in this view of the matter, the instant civil revision being meritless and having no force is dismissed as such with no order as to costs.