Through instant civil revision under Section 115 CPC, the petitioner has called in question the legality and validity of impugned judgment and decree dated 10.03.2010 passed by the Additional District Judge, Jhelum whereby appeal of respondents No.1 to 3 was accepted and framed additional Issues No.1-A and 1-B and remanded the suits to the trial court for rehearing.
2. Briefly stated the facts of the case are that one Abdul Wahid was the owner in possession of the suit property measuring 20 kanals 19 marlas in the revenue estate of village and Tehsil Sohawa, District Jhelum. The said Abdul Wahid gifted the suit property and transferred its possession to one Karamat Hussain vide registered Deed dated 19.02.1994. After the death of Abdul Wahid on 12.11.1996, respondents No.1 to 3 filed a suit for pre-emption on the ground that the property was in fact sold to Karamat Hussain in lieu of Rs.1,50,000/- but due to malafide to defeat the suit for preemption gift deed was prepared. In the said suit, Issue No.2 was framed which is under:- "2. Whether the transaction in dispute is a sale and not gift."
This issue was decided against respondents No.1 to 3 that transaction was gift and not sale.
Respondents No.1 to 3 filed an appeal which was also dismissed vide judgment and decree dated 11.06.1998 by learned Additional District Judge, Jhelum. In the meanwhile, the said Karamat Hussain died on 17.06.1994 and mutation No.3776 dated 28.01.1996 for inheritance was sanctioned in favour of Taj Begum, mother, Basharat Hussain, Tariq Mehmood brothers and Sakina Bibi sister of Karamat Hussain who thereafter sold the inherited land in favour of Nasira Malik (petitioner in this case) vide sale deed dated 08.06.2000 and delivered the possession. Respondents No.1 to 3 filed two suits for declaration along with joint possession and cancellation of registered gift deed dated 19.02.1994 sanctioned in favour of Karamat Hussain and suit for declaration with consequential relief which was contested by the petitioner. The petitioner also filed a suit for perpetual and mandatory injunction. From the divergent pleadings of the parties, the learned trial court framed the following consolidated issues:- i). Whether the registered deed No.41 dated 19.2.1994 and mutation No.3644 dated 5.3.1994 pertaining to impugned land/property is liable to be cancelled on the basis of fraud without consideration and mis-representation? OPP ii). Whether the registered deed No.71 dated 08.06.2000, mutation No.4340 dated 29.6.2000, general power of attorney No.20 dated 6.5.2000, based on fraud, mis-representation and liable to be cancelled if the issue No.1 is proved in favour of the plaintiffs?OPP. iii). Whether the plaintiffs Muhammad Altaf, Muhammad Razzaq, Muhammad Nawaz are entitled to a decree of declaration alongwith permanent injunction and mandatory injunction as prayed in their suits, if the issue No.1 and 2 are decided in their favour?OPP iv). Whether the plaintiff Mst. Nasira Malik is entitled to a decree of permanent injunction as prayed in the suit?OPD v). Whether the present suit is barred by law?OPD vi). Whether the present suit is barred by limitation?OPD vii). Whether the plaintiffs have got no cause of action to file this suit?OPD viii). Whether the present suit filed by Muhammad Nawaz party is based on mis-statement of facts only to usurp the right of the defendants; hence, it is liable to be dismissed with special costs under Section 35-A of CPC?OPD ix). Relief.
Both the parties produced their evidence pro and contra to prove their respective contentions.
Respondent No.3/plaintiff No.3 appeared in the witness box as PW-4 whereas Rabnawaz was examined as PW-1, Ghazanfar Ali as PW-2 and Dr. Muhammad Imtiaz Dar as PW-3. In documentary evidence, the certificate issued by PW-3, Dr. Imtiaz Dar was tendered as Exh.P1, copy of report under Section 173 Cr.P.C. as Exh.P/2, copies of FIR No.313, 240 and 433 respectively as Exh.P/3 to Ex.P/5 respectively, copy of report under Section 173 Cr.P.C. as Exh.P/6, attested copy of gift deed as Exh.P/7, copy of Jamabandi for the years 1992-93 as Exh.P/8, copy of death certificate of Abdul Wahid as Exh.P/9, copy of death certificate of Karamat Hussain as Exh.P/10 and copy of Khasra Girdawari from Rabi 1998 to 2000 as Exh.P/11.
3. Bashir Ahmad Tarar appeared as DW-1 whereas copies of registered deeds by Abdul Wahid deceased in favour of Muhammad Saeed and Muhammad Sajid were tendered as Exh.D/1 to Exh.D/3 respectively, copy of Jamabandi for the years 2004-05 as Exh.D/4 and copy of Jamabandi for the years 2004-05 as Exh.D/5.
4. All the three suits were dismissed by learned trial Court, vide judgment and decree dated 12.02.2008. The respondents No.1 to 3 assailed the same by filing appeal which was accepted by the learned Appellate Court vide impugned judgment and decree dated 10.03.2010, by remanding the case to the learned trial court for its decision afresh, after framing of following additional issues:- 1-A. Whether Karamat Hussain was never delivered possession of the land claimed to have been gifted to him by Abdul Wahid?OPP 1-B. Whether the impugned gift was made in favour of Karamat Hussain without any consideration/reason whatsoever?OPP.
Hence, this civil revision.
5. It is contended by learned counsel for the petitioner that there was no need to frame additional issues as Issue No.1-A and 1-B as these issues had already been decided in suit titled "Altaf Hussain etc. v. Karamat Hussain", therefore, same are hit by principle of res judicata as enshrined in Section 11 CPC. On the other hand, learned counsel for the respondents supported the framing of additional issues.
6. Arguments heard. Record perused.
7. The controversy between the parties revolves around the applicability of Section 11 CPC, therefore, for ease reference said Section is reproduced herein below:- "11. Res Judicata. - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
8. In order to constitute res judicata in the legal sense it has to be established not merely that the decision emanated from a Court in the exercise of its judicial functions but also that the Court was competent to adjudicate in respect of that matter, the matter directly and substantially in issue in the subsequent suit had been directly and substantially in issue in the former suit, the former suit as well as the present suit had and have been between the same parties or between parties under whom they or any of them claim, litigated under the same title in the former suit, the Court trying the former suit had been a Court competent to try the subsequent suit and the suit in which such issue is subsequently raised had been heard and finally decided in the first suit. The framing of additional issues by the learned appellate court is squarely falls within the ambit of Section 11 CPC.
9. It is crystal clear from perusal of record that additional issues framed by learned appellate court had already been decided by the learned Civil Judge, 1st Class, Sohawa vide judgment and decree dated 27.06.1996 in suit for possession through preemption titled as "Altaf Hussain etc. v.
Karamat Hussain". The relevant issue is reproduced herein below:- 2). Whether the transaction in dispute is a sale and not gift?OPP.
This issue was decided by the learned trial court in the following way:- "Burden to prove this issue was upon the plaintiff to prove the fact that transaction in dispute is a sale and not gift and a very convincing evidence was required to prove this issue but plaintiff has miserably failed to prove that actually land has been sold and not gifted. Mutation in dispute has been produced on record. From the perusal of it, it is quite evidence that Hiba mutation was sanctioned and defendant while appearing as DW-1 has supported this document, hence, it can safely be held that suit land was gifted and not sold. Issue is decided against the plaintiff."
10. It is also an established principle of law that findings of fact recorded in the previous suit would be res judicata in the subsequent suit. Reference may be made to the case law titled as "Muhammad Akbar and others v. Mst. Sahib Khatoon and others" (1991 SCM R 1196).
11. It is also an established principle of law that the declaration given by a court is res judicata in respect of the issues that are decided therein. Reference may be made to case law titled as "Pir Bakhsh presented by his Legal Heirs and others v. The Chairman, Allotment Committee and others"
12. The framing of additional issues is hit by principle of res judicata under Section 11 CPC as the judgments and decrees in the preemption suit mentioned above have attained finality, hence, the issue of gift qua Karamat Hussain cannot be re-opened.
14. Sequel to the above, this civil revision is hereby accepted and impugned judgment and decree dated 10.03.2010 of Additional District Judge, Jhelum is set aside. The appeal shall be deemed to be pending before learned Additional District Judge, Jhelum, who shall decide the same afresh on merits after hearing the parties. No order as to costs.