1. ANWARUL HAQ, J.-This petition for special leave to appeal is directed against the judgment and decree dated the 9th of March 1971, passed by a learned Single Judge of the Peshawar High Court, accepting the revision petition filed by the respon--dents and thereby setting aside the judgment and decree of the first appellate Court and restoring those of the trial Court in respect of 581 kanals and 18 marlas of land comprising Khasra Nos. 785, 786, 816 and 817, situate in village Shahi Bala, in Peshawar tehsil.
2. There is a history of prolonged litigation between the parties regarding the land comprising Shamilat Deh in the three Kandis of the village in question. The Kandies are called Kandi Bahadur Shah, Kandi Mohammad Shah and Kandi Azim Khan. On the basis of a decision dated the 31st of January 1899, Mutation No. 1611 was attested on 31-7-1929, in respect of Khasra Nos. 823 and 864 measuring 421 kanals and 13 marlas showing that 5/6th share of this land, which was previously entered as Shamilat in the revenue records, was the property of Mst. Amira and other owners of Kandi Azim Khan.
3. On 12-8-1935, the correctness of the said mutation No. 1611 was challenged by way of a civil suit by 23 co-sharers, and it was contended that the land in question was Shamilat land of all the three Kandis of the village. The suit was ultimately dismissed by the trial Court on 28-10-1938.
4. Two of the plaintiff's filed an appeal in the Court of the District Judge, and during the pendency of the appeal the parties agreed to refer the dispute to arbitration of one Maulvi Mohammad Sharif.
5. According to the award given by this arbitrator on 17-3-1940, it was held that the partition of the Shamilat Banjar land of the village had been wrongly carried out and accordingly the whole of the Shamilat Banjar land, including the two Khasra numbers in dispute, should be partitioned again in equal shares between the three Kandis, irrespective of any previous partition in this behalf. The learned District Judge passed a decree in terms of the award on 26-3-1940, as none of the parties objected to the same.
6. Some of the defendants filed an appeal in the Court of the Judicial Commissioner who, by his order dated 5-3-1941, partly modified the decree so as to bring it strictly in accordance with the terms of the award of the arbitrator.
7. Thus ended the first suit between the parties, and then commenced a round of litigation before the Revenue Officers for the attestation of the necessary mutations. As a result, mutation No. 496 was attested on 3-4-1945 in respect of the land in dispute in the present proceedings, showing it as Shamilat of the village and belonging to the three Kandis in equal shares, although the land had been previously shown as the property of Mohammad Hussain and others. This mutation gave rise to the second suit which was instituted by the previous owners on 15-10-1947.
8. During the pendency of this suit, the defendants namely Kist. Amira and others, executed an agreement in favour of the plaintiffs on 4-2-1944', admitting the claim of the plaintiffs, However, the agreement was not registered and was not filed in Court. Instead, the plaintiffs simply absented themselves from the hearing of the suit on 22-~-1949, with the result that their suit was dismissed under rule 8 of Order IX of the Code of Civil Procedure.
9. Armed with the agreement executed in their favour by the defendants to the suit on 4-2-1949, the plaintiffs Mahmud Khan and others got correction Mutation No. 704 entered on 21-12-1953 for the purpose of showing that the land in dispute was their property and not Shamilat Deh of the three Kundis, The muta--tion was, however, rejected on 18-9-54, and the appeal was also dismissed by the Collector on 19-1-1956.
10. In these circumstances, Mahmud Khan and others instituted a civil suit on the 13th of November 1956, which was the third in the series, in respect of the four Khasra numbers already mentioned, namely, 735, 786, 816 and 817. They claimed that they were the owners of this land, that it was not Shamilat of the village, and that mutation No. 496, attested on 3-4-1945, treating it as Shamilat was incorrect. The suit was decreed by the trial Court on 13-11-1958 holding that the plaintiffs were indeed the owners of the land, that their suit was within time and it was not barred by the principle of res judicata.
11. The findings of the trial Court on all the relevant issues were, however, reversed in appeal by the learned Additional District Judge, with the result that the suit was dismissed with costs throughout.
12. Aggrieved by the appellate judgment, the plaintiffs went up in revision to the High Court which, as already stated, has been accepted. The High Court has held that the suit was within time, that it was not barred by res judicata and that the plaintiffs were the owners of the land according to the entries appearing in the revenue records.
13. The finding of fact recorded by the trial Court, and upheld by the High Court, regarding the ownership of the plaintiffs respondents is not contested in the present petition, but it is submitted that the suit was hit by the principle of res judicata in view of the final decree passed by the Judicial Commissioner on 5-3-1941 in the first suit between the parties, as a result whereof the entire Banjar land, including the four Khasra numbers now in dispute, was held to be Shamilat of the three Kandis in equal shares. It is next submitted that the suit was also barred under rule 9 of Order IX of the Code of Civil Procedure in view of the dismissal of the second suit of the respondents on 22-2-1949 in default under rule 8 of Order IX of the Code. Finally, it is contended that the suit was barred by time as it was instituted on the 13th of November 1956, i.e., much later than the six years period allowed in this behalf under Article 120 of the First Schedule to the Limitation Act, to challenge a mutation which was attested on 3-4-1945.
14. After hearing the learned counsel at some length, we have reached the conclusion that there is no merit in any of these submissions.
15. Taking first the question of res judicata, it will be seen that the four Khasra numbers now in dispute were not the subject--matter of litigation in the first suit instituted in 1935 and finally decided by the Judicial Commissioner on 5-3-1941. In that suit the dispute concerned only two Khasra numbers, namely, 823 and 864, measuring 421 kanals and 13 marlas, whereas the Khasra numbers now in dispute are 785, 786, 816 and 817. Measuring 581 kanals and 18 marlas. The arbitration award accepted by the parties during the pendency of the appeal in the District Court did not, as pointed out by the High Court, relate to land which was the exclusive property of any particular individual, but merely to the Shamilat land of the entire village. The award cannot, therefore, be regarded as conclusive on the question of the nature of the property now in dispute, and cannot as such operate as res judicata.
16. However, even if it be considered that the award given by the arbitrator, and the consequent decree made by the Judicial Commissioner on 5-3-1941, in the first suit between the parties, related to the entire Banjar land of the village, including the four Khasra numbers now in dispute, then it would have to be held that the award and the decree were not binding on the present petitioners to the extent that they traversed beyond the matter in difference between the parties in the suit concerned. The reference to arbitration, during the pendency of the appeal in the District Court, could only be in terms of section 21 of the Arbitration Act, 1940, which contemplates that "Where in any suit all the parties interested agree that any matter in difference between them it the suit shall be referred to arbitration, they may at any time before judgment is pronounced apply in writing to the Court for an order on reference." It will be seen that the reference to arbitration has to be confined to the subject-matter of the suit, and any award on matters not covered by the suit would be void to that extent. The same remarks would apply to any consequential decree that might be passed by the Court in terms of such an award, for the simple reason that the Court would not be seized of the matters which were not put in controversy inthe suit itself. (See Peddapalayam Bodachari v. Peddapalayarn Munlyachari (AIR 1921 Mad. 709), Persram Gangadas v. Topandas Dholandas (AIR 1928 Sind 81) and Ram Protap Chamria v. Durga Prosad Chamria (AIR 1925 P C 293). It seems to us, therefore, that the High Court was right in holding that the suit was not hit-- by the principle of res judicata.
17. As regards the second ground urged in support of the petition, rule 9 of Order IX of the Code of Civil Procedure lays down that:.---- "Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action."
18. We have seen that the second suit of the respondents, which was dismissed in default on 22-2- 1949, was founded upon the attestation of mutation No. 496 on 3-4-1945, but the third suit, giving rise to the present petition, arose out of the rejection of mutation No. 704 on 18-9-1954. This mutation was entered, as already stated above, in pursuance to an unregistered agreement executed by the present defendants-petitioners on 4-2-1949 acknowledging the ownership rights of the respondents in the land in suit. In these circumstances, it is not possible to hold that the third suit was brought in respect of the same cause of action. Such being the case the provisions of rule 9 of Order IX, relied upon by the petitioners, were not attracted to the case.
19. Coming now to the question of limitation, we find that there is a finding of fact recorded by the trial Court, and up--held by the High Court, that the respondents have continued in possession of the suit land irrespective of the attestation or rejection of mutations regarding this land. A fresh cause of, action would, therefore, accrue to the plaintiffs every time their right of ownership was denied or repudiated, Now, on 4-2-1949 the present petitioners had acknowledged the ownership rights of the respondents, even though the agreement was not registered, an aspect of the matter to which we shall advert later. Mutation No. 704 was got entered by the respondents on the basis of this agreement, but it was rejected on 18-9-1954. It must, therefore, be said that the denial of the ownership rights of the respondents arose on 18-9-1954. The suit was filed on 13-11-1956 and was obviously within time whether the Article applicable was 120 or 142 of the Limitation Act.
20. It is correct that the agreement dated the 4th of February 1949 was not registered in terms of section 17 of the Registration Act, and accordingly it could not be made a basis for an assertion of title in the suit property, but it could certainly be used for the collateral purpose of showing the nature of the cause of action which arose to the plaintiffs on the rejection of the relevant mutation on 18-9-1954. On this view of the matter, the trial Court as well as the High Court appear to us to be right in holding that the suit was within time.
21. For the foregoing reasons, we see no justification to interfere in the matter, and accordingly dismiss the petition.