MUHAMMAD FAHIM WALI, J. Impugned herein is the judgment and decree of learned Additional District Judge-I, Bannu dated 18.09.2018, whereby the appeal of petitioner was dismissed and the judgment and order of the learned Civil Judge-X, Bannu dated 29.09.2017 was maintained.
02. Requisite facts of the case are that petitioner/plaintif f instituted a suit for possession through partition along with an application for perpetual/mandatory injunction, in respect of shops and house both situated in Khata No. 64 Khasra Nos: 340 to 342 measuring 06 Kanals and 08 Marlas, out of the same share of petitioner/plaintif f is 845/9216 measuring 11 Marlas and 6-2/3 Sarsais according to the revenue record. It is asserted in the plaint that the parties being joint owners of the property in dispute, which has not been partitioned so far, as such respondents be restrained from raising any construction, making alteration and alienating the suit property; that there is likelihood of dispute between the parties over the suit property which needs to be partitioned. Suit was contested on various legal and factual objections by the respondents/defendants. After recording of evidence, and hearing the parties, it was dismissed by the learned trial court on 29.09.2017. The Judgment and decree of learned trial court was assailed through C.A No. 200/13 by the petitioner/plaintif f which too was dismissed through impugned judgment dated 18.09.2018 by learned Additional District Judge-I, Bannu, hence, the instant petition.
03. Arguments heard, record perused.
04. Perusal of the case file reveals that previously the plaintif f and her brother had filed a civil suit No. 6/1 of 2002 against the present respondents/defendants that was decreed in their favour while during the proceedings of the appeal, by the intervention of the elders of the locality , the parties had entered into a compromise vide compromise deed Ex.PW -4/1 and the appellate court modified the decree of the trial court throu gh its order dated 07.01.2016 in line with the above said compromise deed. The reason why, main argument of the learned counsel for the respondents revolves around the principle of Res-judicata for being applicable to the case of the plaintif f.
05. In order to materially grasp the contr oversy between the parties, it would not be out of place to ascertain the inter-se relationship between the parties. Both the parties are the successors of Amir Taj Ali Khan; Mst.Umer Khitabalpetitioner is the granddaughter of Amir Taj Ali Khan through his predeceased son namely , Sardar Ali Khan while Raham Nawaz Khan/respondent No.1 is the real son of said Amir Taj All Khan. No doubt, the parties had locked horns with each other in earlier litigation, but admittedly the same was regarding the legacy or otherwise of late Amir Taj All Khan, however , the present controversy has arisen after the death of one Abdullah, alias, Fatwarani who died after the compromise so reached between the parties in the previous litigation, referred to above. It is abundantly clear that the deceased Abdullah, alias, Fatwarani was also a plaintif f in the previous suit and also happens to be the brother of Umer Khitaba/petitioner but because he died unmarried and he was only survived by his mother namely , Mst. Dilwar Jana, and petitioner Umer Khitaba, so his legacy according to Sharia also devolved upon respondent Raham Nawaz to the extent of 1/6th share in his legacy . In this regard inheritance mutation No. 996 of the said Abdullah has been attested on 27.05.2013.
06. In view of this new development, the contention of the learned counsel for the petitioner cannot be ignored that the previous litigations between the parties had been materially different from the present lis, insofar as after devolving of the legacy of late Abdullah, allegedly , the share that came within the possession of the said deceased that pertains to two constructed shops, has been forcibly taken into his possession by respondent No. 1. This statement also gets a candid support from the statement of Sher Afghan who appe ared as PW-2 and who happens to be the person who had actually effected a compromise between the parties in the previous litigation had categorically stated in his examination in chief that deceased Abdullah was given 11 Marlas house along with pathway in the residential area while he was also given 03 Marlas along the road side comprising shops. He further stated that the said Abdullah sold his property measuring 10 Marlas in the village and constructed two shops over the aforementioned 03 marlas property which was given into possession of the tenants that he used to receive the rent therefrom. However , according to this witness, the said shops are currently in possession of respondent No.1 .
This portion of the examination in chief remained unrebutted, neither directly nor through any adverse suggestion so put to the witness during the course of his cross examination. This leaves us with an unescapable situation that the subject matter and cause of action in both the suits is materially dif ferent.
07. Both the learned lower courts had failed to advert to this aspect of the case and were probably swayed away by the principle of Res-judicata and this fine distinction had unfortunately skipped their attention, which needs to be rectified.
08. In this view of the matter , the case is remanded back to the learned trial court with the direction to firstly determine the actual ownership of late Abdullah, alias, Fatwarani and thereafter properly assess the shares devolved upon each of the parties in accordance with their shares in his legacy in terms of corresponding area so transferred to each one of them; to ascertain the actual physical possession on the spot of the property so left over by the deceased Abdullah, alias, Fatwara ni and after recording of evidence, to separate share of each legal heir by partition of the property so left in his legacy .
09. For the reasons stated above, this petition is accepted and the judgment and decrees of both the learned courts below are set-aside, and the case is remanded back to the learned trial court to decide the matter afresh after taking stock of the above referred observations.