This Regular Second Appeal arises from the judgment and decree dated 24-3-1970 passed by the learned Additional District Judge, Gujranwala, whereby the appellant's first appeal was dismissed.
2. The dispute related to two properties; (i) No. BXXVII-2S-30 and (ii) No. BXXVII-2S-32. There was litigation about them between the parties before the Settlement Authorities. Initially property No. BXXVII-2S-30 was shown to have been transferred to the appellant and property No. BXXVII-2S-32 to the respondents-defendants. The latter noted this mistake and preferred an appeal. Necessary correction was made in the P.T.Os. Of the parties transferring property No. BXXVII-2S-30 to the respondents-defendants and property No. BXXVII-2S--32 to the appellant-plaintiff. Aggrieved by the final order of the Settlement Authorities the appellant preferred writ petition No. 438-R of 1964 which was dismissed in limine observing that the mistake had been rightly corrected. It was explained in the brief order by the Division Bench that property No. BXXVII-2S--30 consisting of a shop on the ground-floor and a Chaubara on its floor stood transferred to the respondents, whereas property No. BXXVII-2S-32 being only a shop on the ground floor was given to the appellant-plaintiff. Dismissal of the writ petition was not challenged further but after some time the appellant brought the present suit for declaration urging mainly that since he was m possession of the Chaubara on Shop No. BXXVII-2S-30, he was entitled to its transfer. He further submitted that he had even filed a CH form for its transfer, but instead it was given to the respondents-defendants against the basic norm of Settlement Law namely, the factum of possession. The respondents objected to the suit contending that the matter had been since finally decided by the Settlement Authorities in their exclusive jurisdiction and that it could not be reopened before the Civil Court, nor could it take seisin thereof. The objection prevailed and the trial Court dismissed the suit. The appellant preferred an appeal which met the same fate and he is now before the High Court in the Regular Second Appeal.
3. I have perused the order dated 26-10-1964 passed in writ petition No. 438-R of 1964. It was a decision by Division Bench and as such is binding upon me. Precisely the same point was urged before the High Court. The plea was spurned. This decision for all purposes operates as res judicata. Entering into a new cycle of litigation over the same point has been lately taken serious notice of by the Supreme Court in Bashir Ahmad v. Abdul Hameed and another 1984 SCM R 689, Abdul Hayee v. Sardar Muhammad add others 1984 SCM R 1149 and Jaliluddin v. Messrs Habib Bank Ltd. And others 1985 SCM R 1965, in which any repetitive attempt to undermine the decision once reached on the same point was held to constitute contempt. Even the lawyer concerned sponsoring such litigation was held liable as contemner. I had to draw kind attention of the counsel to these authorities in my order dated 5-2-1989, but somehow he was of the view that his case was distinguishable. I am afraid, a perusal of the previous writ petition, the order passed therein and the present plaint leave little room for thinking that a new matter was being pressed m the later attempt. The same grounds are pressed once again namely, that the appellant being in possession of the Chaubara over Shop No. BXXVII-2S-30 was entitled as a matter of law to its transfer, the more so as he had submitted CH form therefore. Exactly this was the point in paras. 2, 3, 5 and 6 of the writ petition and the order of the High Court took due notice thereof. The conclusion drawn by the Division Bench was that a mistake had cropped up in documentation by which property No. BXXVII-2S-30 belonging to the respondents was shown in the transfer document of the appellant and further that this mistake was set at rest by necessary correction. A reading of the plaint in the present suit discloses that exactly the same ground is re-asserted. B A point or an issue once decided cannot be made the subject-matter of any subsequent suit/litigation. Section 11, C.P.C. Is quite dear on the point.
4. Assuming for the sake of argument that the appellant intended to take up some new ground to maintain the suit, he was still barred by Explanation I V to section 11, C.P.C. As he could have taken up the ground in the former attempt. Omission on his part to plead it in the writ petition would make it a case of constructive res judieata. .
5. Mr. Thanvi for the appellant laid considerable stress on the point that civil Court had jurisdiction to take seisin of the case. M. Jamil Asghar v. Rawalpindi Improvement Trust PLD 1962 (W.P.) Lah. 859 among many other authorities was recited for the view that Civil Courts were not barred from scanning an order, including of Settlement Department if it could be demonstrated that the wane was not within the four corners of the law or that the Authority concerned exceeded the limits imposed upon it. He insisted that the factum of the appellant's possession over the Chaubara on Shop No. BXXVII-2S--30 was indeed a determining factor which created in his favour a vested right to ask for its transfer. According to him, since the respondents were not in possession thereof, they could not possibly at law ask for its transfer. He added that the Chaubara on the roof and the shop underneath it, were in Settlement Laws, to be construed as one unit and transferred to him. The argument was seriously opposed by Mr. Manzoor Ahmad Sheikh for the respondents pointing out that the decision of the Settlement Authorities treating it as a part of the shop and transferring both the portions of the unit to them was final for all purposes as contemplated by sections 22 and 25 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958. I think there was considerable substance in the point urged on behalf of the respondents. The appellant took exception to the relevant order upto the last tier of the hierarchy. He was unfortunately unsuccessful throughout.
The orders were final in all respects and he could not be allowed to come round to state in the regular suit that these orders were bad in law. Sardar Muhammad Ayub v. Pakistan through Secretary Ministry of Resettlement and Rehabilitation etc. 1969 SCMR 96(2) quite squarely covers the case in hand inasmuch as there too, orders passed in that hierarchy were sought to be challenged before the Civil Courts' and the rule enunciated was that it did not lie in the mounth of the party seeking relief before those Courts, to state later that their orders were void. Mian Muhammad Din v. Sh. Muhammad Ishaque Gaba PLD 1965 (W.P.) Lahore 5 was yet another precedent supporting the respondent's argument as regards bar of jurisdiction.
6. Keeping the above discussion in view I find no merit in the appeal and the same is dismissed leaving the parties to bear their own costs.