1. MUSARRAT HILALI, J.--- Impugned herein is the judgment of learned Additional District Judge-V, Peshawar dated 23-4-2010 whereby appeal of the petitioners against the order of learned Civil Judge-VII, Peshawar dated 18-12-2008 has been dismissed.
2. 2.Briefly, facts of the case are that petitioners filed a suit against the respondents for possession through partition of the property bearing Khasra No.166-167 in Khata No.24/75 measuring 9 kanals, 2 marlas out of which 7/12 share i.e. 7 kanals and 6 marlas situated at Shahi Payan Peshawar. The petitioners also sought permanent injunction to restrain the respondents from alienation or to improve the status of the suit property till the case is finally decided.
3. The respondents were put on notice, who appeared and filed an application under Order VII, Rule 11, C.P.C. for rejection of the plaint, whichwasallowedandtheplaintwasrejectedbylearnedCivilJudge-VII, Peshawar vide order dated 18-12-2008 being hit by law of res judicata. Feeling aggrieved, the petitioners filed appeal but the same also did not find favour with the learned lower appellate court and was dismissedbylearnedAdditionalDistrictJudge-V,Peshawaron23-4-2010, hence the revision petition in hand.
4. 3.Learned counsel for petitioners contended that the learned courts below misread and non-read the record, wherein, the petitioners have been shown owners; that on the basis of Mutation No.499 attested on26-5-1980 only one kanal and 14 marlas have been transferred whereas on the strength of Mutation No.699 land measuring 4 marlas was attested on 15-9-2007 in the disputed Khasra No.166-167 and the remaining property is the ownership of the petitioners; that in the previous suit the rights of respondents were confirmed up to the extent of 1 kanal and 14 Marlas only on the basis of Mutation No.499 attested on 26-5-1980 in Khata No.166-167 and there remains much share to which the petitioners are entitled. Learned counsel urged that the instant revision petition be accepted and the matter be remanded back to the trial Court for decision on merits.
5. 4.On the contrary, learned counsel for respondents contended that the petitioners have caused abuse of Order VII, Rule 11, C.P.C.; that the matter has already been decided by the courts having proper jurisdiction; that petitioners are seeking partition of the property to which declaration has already been refused by the courts below, therefore, prayed for dismissal of revision petition on the above grounds.
6. Arguments heard and record perused.
7. 5.In order to fully understand the matter, it is necessary to give some details of the previous case, which became the reason of dismissal of the suit in hand. The previous suit filed by the petitioners against the respondents was for declaration and permanent injunction to the effect that the registered gift-deed dated 23-4-1980 and Mutation No.499 attested on 26-5-1980 in the name of respondents the predecessor of petitioners and Mutation No.630 attested on 19-8-2000 from respondents 1 to 4 to respondents 5 and 6 were illegal and ineffective upon the rights of petitioners and were liable to be cancelled.
8. 6.The petitioners, however, in para-2 and 3 of their plaint admitted thattheyhadtheknowledgethesaidregisteredgift-deedsince23-4-1980, thus, relying on their admission, the plaint was rejected. by learned trial Court vide its order dated 8-2-2003 being hit by Article 120 of Limitation Act. This order attained finality as no appeal was filed against it.
9. 7.The present revision petitionhasbeenfiledbypetitionerson9-7-2010 for possession through partition of their share in Khasra No.166-167 Khata No.24/75 situated at Shahi Payan Peshawar. The respondents after service contested the case by filing application under Order VII, Rule 11(d), C.P.C., wherein, they took plea of res judicata in their defence. The learned trial Court after hearing both the parties on the issue, allowed the application vide its order dated 18-12-2008. The appeal filed against the same was also dismissed.
10. 8.The legal concept of res judicata is that once a judgment is handed down in a law suit, which is no longer subject to an appeal or revision, than the matter cannot be raised again between the same parties overthesamecauseofaction.Theconceptoftheenactmentof Order VII, Rule 11, C.P.C. is to prevent the multiplicity of litigation on thesamecauseofaction.ForthepurposeofinvokingOrderVII, Rule 11(d) of the Code, no amount of evidence can be looked into as conclusion has to be drawn from the averments made in the plaint, however, the learned trial Court in order to judge the matter properly examined Patwari Halqa, who negated the plea raised by the petitioners arc, deposed before the learned trial Court that the petitioners have absolutely no shares left in the said Khasra.
11. 9.The present revision petition has been filed on the same cause of action but with a slight twist just to mislead the court. When previously the case of the petitioners with regard to declaration has been dismissed, then how can they seek possession through partition of the same property to which declaration has been refused by a competent court.
12. 10.The learned trial Court being satisfied that there was no chance of suit to succeed as the matter had already been tried and decided earlier against the petitioners. The learned trial Court by invoking the provisions of Order VII, Rule 11, C.P.C. rejecter the plaint, which was affirmed in appeal by the learned lower appellate court. The findings arrived at by the courts below are well founded and no case for interference therein is made out.
13. Accordingly, for the aforementioned reasons, this revision petition has no legal substance, which is hereby dismissed with no order as to cost.