' IKRAMULLAH KHAN, J.---Through the instant Revision Petition, petitioners have challenged the impugned Judgment/decree dated 15-2-2005 passed by the Additional District Judge-I, Charsadda in Civil Appeal No.35/13 Neem, whereby the Judgment/decree dated 9-7-1995 passed by the learned Senior Civil Judge, Charsadda was set aside and the suit of the petitioners was dismissed.
2. The briefly stated facts are that the predecessor-in-interest of petitioners, Mst. Abida Begum widow of Habibullah, instituted a civil suit in the court of Senior Civil Judge, Charsadda against respondents, for possession of land measuring 179 Kanals and 11 Marlas, bearing Khasra Nos.1905/145 to 148, 1793/238 to 239, 1780/149 to 154, 1794/240 to 243, Khata Nos.1/419, 1/480 situated in Mauza Bahlola Tehsil and District Charsadda according to Fard Jamabandi of the year 1987/1988. The then plaintiff (now deceased) also prayed for Rs.24,000 as mesne profit of disputed land or in the alternative any other sum, which may be proved by the petitioner, during cause of trial of the suit.
3. The predecessor of the petitioners, late Mst: Abida Begum claimed thereof that the suit-land was in her ownership and possession; that on the demise of her husband, as there was no major male member of the family to look after the suit land and to cultivate the suit-land personally, the possession was given to respondents Abdul (Mani being the tenant.
4. That after some years, respondent Abdul Ghani, refused to pay the produce to predecessor in interest of petitioners on the pretext of some forged documents of agreement to sell allegedly executed by late Habibullah in favour of respondents No.l.
5. Respondents Nos.1 and 3 filed a joint written statement in response to the plaint, while respondent No.2 filed cognovit in favour of petitioners. Respondents Nos. 1 and 3, thereof in their written statement raised numerous legal and factual objections to the maintainability of the suit and also claimed that out of the suit property, they were owners to the extent of 148 Kanals through Mutation No.3598 attested on 6-2-1988 and also claimed ownership over the suit property to the extent of 72 Kanals through agreement to sell dated 3-3-1988, whereof partial payment of sale consideration was made to late Habibullah and for payment of the remaining amount time was extended through deed 6-7-1988, 29-9-1988 and 31-10-1988. The deceased Habibullah, predecessor-in-interest of petitioners received Rs.400,000 and 30-4-1989 was fixed for transfer of land and payment of the remaining sale consideration of Rs.3,30,000 but prior to mutation of the land and payment of the balance amount, the vendor Habibullah died and the said agreement to sell was never transposed to sale-deed. A notice was served on predecessor of petitioners, whereby an offer of payment of the remaining balance amount was made and it was demanded that the suit land be transferred in the name of respondents Nos.1 and 3, but she was reluctant to honour the agreement to sell, as such respondents were constrained to instituted a suit for speccific performance against the petitioners, before the Senior Civil Judge, Charsadda, which had been decided in their favour up to the Apex Court.
6. The learned Senior Civil Judge, Charsadda, framed as much as 12 issues, including the relief out of the divergents pleadings of the parties thereto the suit.
7. On conclusions of evidence. Adduced thereof by both the parties, the learned Senior Civil Judge, decreed the suit in favour of Mst. Abida Begum vide its Judgment dated 19-7-1995. Respondents constrained to prefer an appeal against the Judgment dated 19-7-1995 before the District Judge, Charsadda, which was entrusted to the learned Additional District Judge, who allowed the appeal of the respondents by rendering its Judgment dated 15-2-2005, whereby the suit filed by predecessor of petitioners was dismissed. Hence, the instant Revision Petition being filed thereunder the provisions of section 115 CP before this court by the petitioners, being the legal heirs of late Mst. Abida Begum.
8. The learned counsel for the petitioners contended thereof, that the impugned Judgment is perverse, extraneous and based on incorrect appraisal of evidence, insofar as the provisions. Of section 11 C.P.C. Is concerned; that the lower appellate court has misinterpreted the provisions of section 11 C.P.C; that the previously instituted suit by the respondents was in regard to specific performance of an agreement to sell, though it was decreed in favour of respondents thereto the Apex Court, but the respondents just right from the first decree dated 2-12-2002 passed in their favour by this court, never deposited the balance amount, mentioned therein the Judgment of this court dated 2-12-2002, and as such the issue involved and to be adjudicated was that of mesne profit and not the ownership; he further argued that in so far as, the decreed amount was not paid, respondents could not be treated as owners and are bound to pay back, the shares of petitioners in produce in regard to the suit property.
9. The learned counsel made respectful submissions, that the 'ewer appellate court had misread the evidence on record as the suit of the petitioners was in regard to 179 Kanals, while respondents ' claimed 72 Kanals through agreement to sell, which though decreed in their favour but to the extent of 72 Kanals, but the learned Additional District Jude, failed to gis,e any finding in regard to the rest of the suit property, while concluding its alga) &lents submitted the impugned Judgment may be set aside and that of the Civil Judge be restored.
10. On the other hand, the learned counsel for respondents, vehemently supported the impugned Judgment, whereby raised the plea that petitioners had remained unsuccessful in substainting their plea raiaed therein their pleading of ownership, which had been decided in favour of respondents 'up to final court and as such the issue of ownership is decided by a competent court of law in this regard, where the parties, suit-land and title claimed thereof was the same aa in this subsequently instituted suit, squarely falls in the ambit of the provisions of section 11 of C.P.C; and the impugned Judgment is legal one.
11.. Arguments heard and scrupulously and carefully the whole available record was perused. The Revenue Record duly exhibited by the Halqa Patwari for the year 1987/1988, pertaining to the suit property reveals that deceased Habibullah Khan was shown in the column of cultivation to the extent of 42 shares in Khasra No.1807/591 to 594 as vendor, while deceased Mst. Abida Begum was shown in the column of cultivation ' as vendee in Khasra Nos.1905/145 to 148, 1780/149 to 154 and 1294/240 to 247 to the extent of 1684 shares, and respondents Nos. 1 and 3 were also shown in possession of the suit-land to the extent of 552 shares collectively apart from theia 3rd blotter Ghtitant Haider to the extent of 414 shares.
12. The Revenue Record and Mutation No,1799 attested on 21-2-1974 reveals that late Habibullah had gifted 270 kanals and 1 Marla land to his wife Mat. Abida Begum, in presence of witnesses.
Including respondents No.1 Abdul Gliani. In spite of this fact respondents Nos.1 and his real brattier respondent No.3, purchased 72 kanals of land from late Habibuliali through an agreement to sell dated 3-3-2008. Whether the land purchased in the joint Khata, by respondents whereas both late Habibullah and deceased Abida Begum were shown as co-sharer, could effect the proprietary right of Mst. Abida Begun is a question to be answered but as this court had already passed a decree in this regard, which precluded me to reopen the already decided issue in this regard.
13. The learned Additional District Judge has non-suited the petitioners on the sole ground of res judicata, as this court vide its judgment dated 2-12-2002, had deereed 72 kanals of land in favour of respondents 1 and 3, subject to payment of Rs.320,000 being balance consideration of agreement to sell dated 3-3-1988.
14. Prior to resolve, the controversy, of res judicata, which would be the only crucial point for determination of the case, would like to give a reference at this juncture to the case of Muhammad Saleem Ullah v. Additional Distrtt Gujranwala and others reported as PLD 2005 SC 511, wherein it was held by the apex Court as:-- "Section 11 Res judicata, principle of ... Applicability Essential conditions required to be fulfilled to establish the plea of res judicata.
' The provisions of section 11, C.P.C. Are clear and definite, therefore, subject to conditions contained therein, the Court in which the suit is filed, may proceed with it in certain specified circumstances and mere fact that an issue in the suit, directly or indirectly was connected with the dispute in the earlier litigation would not be sufficient to prevent the subsequent adjudication of such issue.
' The rule of res judicata is based on the consideration that same cause should not be tried for the second time between the same parties and there must be an end to the litigation between the parties. The principle is that since the cause of action in a suit merges in the judgment, therefore, no second suit can be filed on the basis of same cause of action unless it is shown' that it was recurring in nature, thus, the essential condition required to be fulfilled to establish the plea of res judicata would be that the matter in issue and the material point in dispute between the parties in the eariier litigation was directly and substantially in issue in the subsequent litigation. If matter in issue in the subsequent litigation was not substantially decided in the earlier litigation, it would not be res judicata actually or constructively because for res judicata, it is essential, to show that earlier decision in the matter was based on proper adjudication on the relevant issue either of law or fact or mixed issue of law and fact. The decision on an issue of fact based on evidence and decision on issue of law on the basis of set of facts, directly and substantially by a competent Court, is certainly res judicata and the verdict given by the superior Courts in constitutional jurisdiction, on a point of law or on a question of fact based on proved facts and admissible evidence would operate as res judicata inter se parties but decision on a disputed question of fact in constitutional jurisdiction, without any evidence would not operate as res judicata to the adjudication 'of such question of fact in the subsequent litigation. In nutshell, the adjudication on question of law or fact or mixed question of law and fact on the basis of established set of facts and the determination of such questions in the judgment, would essentially be res judicata if the facts were found to have satisfied the requirement of law but the finding or mere observation on a question of fact without proper adjudication and any evidence, would not operate as res judicata.
In the light of this rule, even in the matter of application of general principle of res judicata, at least the condition of final decision on merits of the ispute between the parties must exist."
15. Keeping in view, the principle as laid down by the apex. Court in the above mentioned Judgment and, when applied hereto the instant case cause of action, between the contesting parties in the previous instituted case was not the same as in the subsequently instituted case by the petitioner as the previous suit was in regard to the specific performance of the agreement to sell dated 3-3- 1988, while the present suit/controversy between the parties is in regard to the mesne profit, received thereof by the respondents out of the usufruct of the suit property which could not be termed insofar as the instant cause of action in the suit is concerned to be a decided issue.
16. In the previous instituted suit, no issue was framed in regard to the usufruct, received by the respondents out of the suit property, no any evidence in this regard was produced by both the parties.
17. The previous instituted suit between the parties was in regard to 72 Kanals of land while the instant suit is in regard to 179 Kanals of land.
18. By no stretch of imagination, it would be held that the issue pending thereunder adjudication falls within the ambit of the provisions of section 11 C.P.C.
19. Though, a decree of specific performance had been passed in favour of respondents Nos.1 and 3 to the extent of 72 Kanals against the petitioners, but, no court had adjudicated upon the issue, that what would be the fate of rest of the property, owned by the petitioners, being in the possession of respondents Nos.1 to 3, as per the averment of the petitioners, raised D there in their pleadings.
20. The learned Additional District. Judge was under its bounded duty to give finding in regard to the rest of the suit property as claimed by the petitioners and was decreed in their favour to the extent of 179 Kanals by the learned Trial Judge.
21. The learned appellate court railed to frame issue in regard to the plea of judicata, which was raised during arguments in the lower appellate Court. The second crucial point, necessary to resolve the present controversy among the parties hereto is that whether, without payment of the balance amount of Rs.320,000 as mentioned therein the Judgment of this Court dated 2-12-2002, the respondents would be not bound to pay back the share in produce of the suit property to petitioners till the realization of the balance amount. The value of Ks.320,000 in the year 1989 as compared to in the year 2013, has been devalued due to inflation of Pakistani currency. Whether in the past 24 years, respondents ever tried to deposit the balance amount laterally in the trial Court for payment onward to the petitioners as the decree passed in favour of respondents was not absolute but was subject to condition of payment of the balance amount.
22. However all these questions would be open to petitioners to be agitated during course of execution of the decree dated 2-12-2002 passed by this court and upheld by the Apex Court but a prudent mind could not be convinced that respondents would be not liable to pay the produce for the suit property which lies thereunder their possession, would be treated in the ownership of petitioners, till payment of the balance amount by the respondents. However, the proportionate shares in the suit-land for which the respondents had already been paid Rs.4,00,000 be deemed to be in their ownership, but, the rest of the land for which they had not deposited the balance amount, could not be considered to be in the ownership of the respondents Nos.1 and 3. They are bound to pay back, all the mesne profit received therefrom the usufruct of the suit property.
Therefore this Civil Revision is partially allowed and the impugned Judgment dated 15-12-2005 is set aside and the case is remanded back to the District Judge, concerned, to decide and rewrite the Judgment after recasting or framing additional issue in regard to the mesne profit received by the respondent to the extent of land for which they have not so far paid the amount as mentioned therein the Judgment of this Court dated 2-12-2002, which is still outstanding against the respondents.
23. The learned District Judge has also to decide, that whether, petitioners are left with ownership of any shares in the suit property excluding the 72 Kanals already decreed in favour of respondents Nos.1 to 3.
24. When it is proved that respondents Nos.1 and 3 are also in possession of the land owned by petitioners, apart from 72 Kanals decreed in their favour then, the learned Judge has also to decide that very issue, but strictly in accordance with the law in this regard.