' ROOH-UL-AMIN KHAN, J.---This common judgment shall dispose of the instant civil revision petition as well as connected C.R. No,12-B/2008, titled, "Shahid Khan and others v. Sardaraz Khan and others" as both have arisen from one and the same judgment and decree passed by the learned Additional District Judge-III, Bannu dated 20-5-2008, whereby appeals of the petitioners were dismissed and the judgment and decree of the trial Court was maintained.
2. This case has a chequered history as it has twice been remanded by this Court to the trial Court with certain observations and directions. However, facts in brief forming the background of the instant two revision petitions are that plaintiffs Sardaraz Khan and 04 others (respondents herein) filed a suit against defendants Abdul Hamid Khan and others (petitioners herein) for possession of the vacant Plot No,107, measuring 12 marals, situated within the Revenue Estate of Tota Killa Tehsil and District Bannu, fully described in the preamble of the plaint alleging therein that the defendants have amalgamated the aforesaid plot with their adjacent property bearing Khasra Nos. 170 and 171, wherein they have raised construction. The petitioners were allegedly restrained from raising construction and asked to deliver the possession thereof to the respondents, but they refused. As per averments in the plaint, earlier the respondents had filed a suit for permanent injunction, which was dismissed, however, in appeal the learned Appellate Court, by accepting their application, allowed them to file a fresh suit, hence, this suit.
3. The petitioners were summoned, out of whom only petitioner Abdul Hamid, contested the suit by filing written statement raising therein verity of objections, factual as well as legal while rest of the petitioners were proceeded exparte. From the divergent pleadings of the parties, issues were framed, on which the parties were invited to lead their respective evidence, which they did. On conclusion of trial, the learned trial Court dismissed the suit of the respondents vide judgment and decree dated 30-7-1991, against which, the respondents filed appeal, which met the same fate vide judgment and decree dated 16-1-1994. The respondents being discontented with the findings of the learned Appellate Court, assailed the same before D.I. Bench of this Court by filing a revision petition, which was accepted on 1-11-1999, and consequently, the case was remanded to the learned trial Court for decision afresh with the direction to appoint local commission to visit the spot and find out the alleged encroachment made by the petitioners over an area owned by the respondents by amalgamating the same in their property in Khasra Nos. 170 and 171, and if so, to what extent, and thereafter' to decide the case in accordance with law. After remand, on receipt of the case file by the trial Court, one. Ahmed Khan Tehsildar Bannu, was appointed as local commission to visit the spot and to furnish commission report in light of the direction of this Court.
The spot was visited by the commission, who submitted his report which was objected, hence, he was again directed to re-visit the spot in association with the revenue officials and to re-submit his report. Consequently, the second report of the commission was approved by the learned trial Court, as a consequence whereof, the respondents were held entitled to the decree to the extent of 4 marlas and 6 Sarsai land vide judgment and decree dated 27-5-2003, against which, both the parties preferred appeals before the learned District Judge, who vide judgment and decree date 6-12-2004, dismissed the appeals and maintained the judgment and decree of the trial Court. The judgment and decree of both the Courts below were impugned before D.I. Khan Bench of this Court by both the parties by filing revision petitions, which were allowed and consequently, the case was again remanded to the trial Court for decision afresh in accordance with law after appointing fresh commission for proper demarcation of the suit land.
4. On receipt of the record, after remand, on the second occasion, the learned trial Court while following the direction of this Court, appointed one Raqibaz Khan District Kanoongo Bannu as local commission, but on his application, he was relieved and one Mr. Abdul Latif Khan Deputy District Officer (Revenue) was appointed as commission, who visited the spot and submitted his report, which was rejected on the mutual agreement of both the parties that he had not demarcated the land in dispute in light of direction of this Court. Eventually, Mr. Haq Dad Khan ADK Bannu was appointed as commission for demarcation of the suit land, who visited the spot, conducted demarcation and submitted his report. Both the parties, raised objection over his report, hence, the same was turned down by the learned trial Court. Hence, Mr. Gul Diaz Khan, advocate, was appointed as commission, but he was substituted with Mr. Afsar Ali Khan Mita Khel, advocate, on the application of the petitioners. The commission report prepared by Mr. Afsar Ali Khan Mita Khel, advocate, was also objected by the parties. However, during the course of arguments on the report commission, on the request of the learned counsel for the respondents, the learned trial Judge under Order XVIII Rule 18, C.P.C., inspected the spot in presence of the parties and their counsel, where after, he after hearing the learned counsel for the parties, decreed the suit of the respondents as prayed for in their favour, vide judgment dated 26-2-2007. Being aggrieved from the aforesaid judgment and decree of the trial Court, the petitioners filed appeals before the learned Appellate Court, which met the same fate vide judgment and decree dated 20-5-2008, hence, these revision petitions.
5. I have considered the respective submissions of the learned counsel for the parties and have gone through the record with their valuable assistance.
6. The controversy inter-se the parties, is with regard to a plot measuring 12 Marlas, which according to the respondents, have been amalgamated by the petitioners with their adjacent property bearing Khasra Nos.170 and 171. It appears from the record that the suit property was a bandobasti home which was mortgaged to one Khan Chand and Roup Chand (the non-Muslims).
However, it was redeemed by the predecessor of the respondents namely Muzafar Khan through Court decree passed by the learned Senior Civil Judge Bannu in suit No,337/1 of 1963 (Exh.P.W.3/1).
Perusal of the written statement of the petitioner Abdul Hamid depicts that he has not specifically denied the ownership of the respondents over the suit property i,e, Khana Shumari No,107, however, it has been asserted that the parties had been given their respective shares, in consequence of a previous partition, proceeding and the parties have become owners in possession of their respective shares.
7. To prove their claim, the respondents produced Yousaf Khan ADK as (P.W.1), who produced copy of Khana Shumari in dispute (Exh P. W.1/1), according to which Muzafar Khan, their predecessor, has been shown as owner of the suit property. He also produced Pedigree table (Exh . P. W.1/3), which manifest the respondents to be the successors of said Muzafar Khan. The petitioners have categorically denied their possession and alleged encroachment on their part over the suit property. Petitioner Abdul Hamid in his statement stated that the respondents are in possession of Khana Shumari in dispute, but none of the local commission has shown their possession despite their right of ownership over the suit-land. It appears from the record that exact measurement of Khana Sumari No,107, has not been given anywhere in the revenue record, brought on record during trial, however, Fard Jamabandi (Exh.P.W.2/3), reflects the petitioners to be the owners of 13 marlas in Khasra Nos.170 and 171 while 08 marals land has been shown to have been given to them as a result of execution of a partition suit in the year 1939. In this way, their ownership comes to 21 marlas.
8. As stated earlier, the instant case has been remanded twice by this Court to the trial Court with the direction of appointment of local commission. In compliance of this Court orders, each time, commission was appointed who visited the spot and submitted their reports which are available on file. Last time, on the mutual consent of the parties, Mr. Afsar Ali Khan Mitha Khel, advocate, was appointed as Local commission vide order sheet No,72, dated 4-1-2007, with the direction to visit the spot and conduct commission in terms of order sheet No, 71 dated 21-12-2006 viz "To inspect the spot in presence of the parties, Patwari Halqa and ADK Bannu.
' The learned commission is directed to:-
(1) Properly demarcate the property in dispute.
(2) Measure the total covered and uncovered area of the market in dispute constructed by the defendants."
' In compliance of the above direction, the Local commission visited the spot along with ADK Bannu, Patwari Halqa and Moharrir with record of the case file and demarcated the property, in presence of the parties. An extensive and exhaustive report was submitted before the trial Court. According to report of the Local Commission (Exh C W .3/1), total covered area of the constructed market was 01 Kanal 16 marlas and 08 Sersai, out of which Khana Shumari Nos. 104, 106, 107 and 108, are consist of 19 Marlas while Khasra Nos.170, 171, 172 and 163; measuring 7, 6, 3 and 1 marlas, respectively (total 17 marlas). The above mentioned area dugout by the learned Commissioner has been admitted by all the parties as constructed market. DW.1, during his statement before the Court has also admitted that total area of the constructed market is one Kanal 16 marlas and 8 Sersai. Perusal of the record statement of DW.1 and (Exh.P.W.2/D-1 Khasra Girdawari) from Kharif 1983-90 and (Exh.P.W.2-D/2) Fard Jamabandi for the year 1981- 82, it is manifest that neither defendant (DW.1), is owner of the property consisting Khasra Nos.163 and 172, measuring one marlas and three marlas, respectively nor he produced an iota of evidence in respect of his possession over the said property. It is also evident from the pleadings of the parties that the above mentioned 04 marlas land is not the part of the constructed market. It is borne out from the record that on the mutual request of the learned-counsel for the parties, the spot was also inspected in terms of Order XVIII Rule 18, C.P.C., by the learned trial Judge, who found Khana Shumari No,106, being a vacant plot, towards West of the constructed market. From the above discussion, it is clear than crystal that the market is constructed on an area of 01 Kanal, 16 marlas and 08 Sersai, comprising Khana Shumari Nos.104, 107 and 108 as well as Khasra Nos.170, and 171. The report of the local commission together with the evidence recorded by him, are the conclusive evidence and the same ought to be considered for arrival at just and proper conclusion of the case and may not be thrown away. Thus, the report of local commission is based on facts and rightly been accepted by the two Courts below.
9. Now coming to the evidence of the parties produced before the trial Court, according to which, Khana Shumari No,107 is, owned by the predecessor of the plaintiffs, namely Muzafar Khan. Patwari Halqa, also affirmed that predecessor of the plaintiffs was owner of Khana Shumari No,107.
According to statement of Patwari Halqa (P.W.2), defendant No,1 is owner of 13 marlas, comprising Khasra Nos.170 and 171. Plaintiff No,1 himself appeared before the Court as (P.W.3) and supported his claim through Exh.P.W.3/1 i,e, copy of the order dated 10-3-1964, passed by the then Senior Civil Judge Bannu, in suit No,337/1, whereby his predecessor redeemed the disputed house/Khana Shumari No,107. He deposed that Khana Shumari No,108, had been partitioned inter se the parties in the year 1939, through Court, as a consequence whereof, an area of 04 marlas each, had been given to the parties and 8 shops situated in Khana Shumari No,108, had also been partitioned in the same ratio. He further stated that Khasra Nos.170 and 171, owned by petitioner Abdul Hamid, is contiguous to Khana Shumari No,107; which the petitioners have amalgamated with their land bearing Khasra Nos.170 and 171 and plot No,108. On the other hand, attorney for the petitioners appeared as DW.1. He deposed that after partition suit in the year 1939, the parties are enjoying the possession of their respective share and that petitioners have not encroached upon the disputed plot and that the market constructed by petitioner Abdul Hamid is over an area owned by him. In his cross-examination he admitted the partition suit to be in respect of Khana Shumari No,108. He further admitted the ownership of the respondents over disputed Khana Shumari No,107 and possession thereof. One Amirullah Khan has been examined as DW.2. According to him, as a result of a partition suit in the year 1939, the parties are in possession of their respective shares and the petitioners have not encroached upon the suit land. He admitted receipt of 8 marlas land by the petitioners in the year 1939, and that similar area was also given to the respondents. He deposed that the total land which was the subject matter of the partition suit in the year 1939, was 16 marlas.
10. From the written statement of the petitioners as well as their evidence, the ownership of the respondents, over the disputed Khana Shumari No,107, has not been questioned. It divulges from the Revenue record that Khana Shumari No,108, is adjacent to the main road while Khana Shumari No,107, is lying on its back. According to Aks Shajra Kishtwar (Exh.P.W.2/1), Khasra Nos.170 and 171, are lying at some distance from the main road. In this way, Khana Shumari No,107, is lying inter se Khana Shumari No,108 and Khasra Nos.170 and 171. As per commission report Exh.CW.3/1, the total area of the construction raised by petitioner Abdul Haimd is 01 Kanal 16 marlas and 08 Sersai. The aforesaid fact is not denied by petitioner Abdul Hamid in his statement wherein he has stated that the area of the market in their possession is 01 Kanal and 16 marlas. The revenue record manifests the ownership of the petitioners over an area of 13 marlas in Khasra Nos.170 and 171, while according to the petitioners, 08 marlas land had been given to Abdul Hamid in pursuance of partition suit in the year 1939. In this way, the total area which falls within the ownership of the petitioner Abdul Hamid, comes out to be 21 marlas, while the construction raised by him and found on the spot by the commission, is over an area of 01 Kanal and 16 marlas and 08 Sersai, i,e, in excess of his share.
This fact is also proved from the commission report Exh.P.W.3/1. Thus, area measuring 15 marals and 08 Sersai has been proved to have been encroached upon by the petitioners, out of which, area of 12 marlas, is that of the disputed Khana Shumari No,107, belonging to the respondents while the rest 3 marals and 8 Sersai, is the portion of the path bearing Khana Shumari No,104, lying inter se Khana Shumari Nos.108 and 107, on one side, and Khana Shumari No,106, on the other, as per.
Exh.P.W.1/4. In light of the documentary evidence, the respondents have fully established their claim and they have proved encroachment of the petitioners over their property. Moreso, Afsar Khan Mitha Khel, advocate, who conducted commission in presence of Patwari Halqa and ADK, admitted the factum of merging the land bearing Khana Shumari No,107 by the petitioners in their market.
The factum of encroachment of aforesaid area is also established from the commission report of Afsar Khan Mitha Khel, advocate. According to his report (Exh.P.W.1/3), the petitioners have raised construction of the market over an area of 01 Kanal, 16 marlas and 08 Sersai, including khana Shumari. No,107. The factum of measurement of the market to be over an area of 01 Kanal, 16 Marlas and 08 Sersai, has also not been denied by Taj Faizullah who appeared as DW.1. As stated earlier and manifest from the Revenue record as well as admissions of the petitioners that they are the owners of only 21 marlas land, however, while the construction found in their possession is over an area of 01 Kanal, 16 marlas and 08 Sersai i,e, making the total area of 36 marals and 08 Sersai, which proves the encroachment of area of 15 marlas, in which the area of 12 marlas is that of Khana Shumari No,107.
11. Record depicts that respondents have proved their ownership over Khana Shumari No,107 measuring 12 marlas, and the encroachment of the petitioners over the same, through cogent, trustworthy and confidence inspiring documentary as well as oral evidence. Both the Courts below have properly appreciated the entire evidence and the revenue record and have reached to a just and right conclusion by decreeing the suit of the respondents.
12. The learned counsel for the petitioner vehemently argued that during pendency of the appeal before the learned Appellate Court, the respondents had submitted an application on 7-12-1989, for withdrawal of the suit with permission to file a fresh one wherein plea of declaration in the suit has categorically been prayed. He further argued that the above said application was accepted by the learned Appellate Court and the plaintiffs were allowed to withdraw the suit with permission to file a fresh one but the fresh , suit has been filed in derogation of order dated 7-12-1989, therefore, being beyond the permission of the Court, is not tenable. In my humble view, the arguments of the learned counsel for the petitioners are unpersuasive for the reason that at earlier stage the plaintiffs had filed an application for withdrawal of suit No,264 with permission to file a fresh one. I deem it appropriate to re-produce the order of the learned Appellate Court dated 7-12-1989, below:-- "Counsel for the parties present. The learned counsel for the appellants submitted an application for withdrawal of the case under Order XXIII, Rule 1 of the C.P.C. With a permission to sue a fresh one the same cause of action. The learned counsel for the respondent has got no objection on the acceptance of this petition. As such the application for the withdrawal of the case under Order XXIII, Rule 1, C.P.C. Is accepted with permission to sue a fresh on the same cause of action on cost of Rs,500. Costs not paid. File be consigned to Record room".
A glance over the aforesaid order would make it clear then crystal that the learned Appellate Court while allowing the plaintiffs-respondents to withdraw the suit to bring a fresh one, has not imposed any condition except cost of Rs,500. Under Order XXIII, Rule 1, Civil Procedure Code, where a suit is allowed to be withdrawn with liberty to bring a fresh suit, it should be regarded as previous suit has never been brought, and if at the time of withdrawal, no condition is imposed by the Court, the plaintiff would be at liberty to file fresh suit follow from the withdrawal so permitted. Thus, the suit of the plaintiffs is in accordance with the order of the Appellate Court dated 7-12-1989.
13. So far as question of res judicata is concerned, I searched the entire record with the assistance of the learned counsel for the petitioners, but could not find an iota of evidence that on the same subject matter, inter se the same parties, earlier any suit has been decided. Suit No,80 decided in the year 1937-39, qua partition of the property is in respect of house bearing Khana Shumari No,108.
The piece of land disputed in the instant suit is bearing Khana Shumari No,107, which has never remained disputed between the parties in the earlier partition suit. The essential condition required to be fulfilled to establish the plea of res judicata would be that the matter in issue and the material points in dispute between the parties in the earlier litigation were 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. Similarly, the principles of res judicata are not applicable where the subject matter in the previous and subsequent proceedings, is entirely different. Earlier suit between the parties was in respect of partition of Khana Shumari No, 108 while the present suit has been filed for possession of Khana Shumari No,107. Thus, in the instant case, bar of suit under the principle of res judicata is not applicable.
14. The scope of revisional jurisdiction is very limited in which the Court cannot set aside the concurrent findings of facts recorded by Courts of competent jurisdiction nor it can upset the same, even if, on appreciation of evidence a different view can be formed, unless these findings are shown patently illegal, without jurisdiction or the result of bare misreading and non- reading of material evidence, based on conjectural presumptions or erroneous assumption. No such infirmity has been pointed out by learned counsel for the petitioner in the impugned judgments, which may warrant interference of this Court in its revisional jurisdiction. In this regard reference can be made to cases titled, "Haji Muhammad Din v. Malik Muhammad Abdullah" (PLD 1994 SC 291), and "Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others" (2000 SCM R 346). The same, view has been reiterated by the august Supreme Court in cases titled, "Muhammad Rashid Ahmed v. Muhammad Siddique" (PLD 2002 SC 293) and "Muhammad Idrees and others v. Muhammad Pervaiz and others"
(2010 SCM R 5).
15. For what has been discussed above, both the revision petitions being without any substance, stands dismissed.