A suit for possession by pre-emption titled as "Mst. Shamim Akhtar v. Dauran Khan etc." pertaining to the disputed property was filed in the Court of Civil Judge, D.I. Khan which was dismissed on 29- 5-1983. An appeal against that judgment and decree of the trial Court was, however, partially accepted by the learned District Judge, D.I. Khan on 6-2-1984 and the suit was decreed regarding the disputed land excepting that bearing Kasra No.3135 on the ground that the vendee-defendant was tenanting it. Both the parties feeling aggrieved by the appellate judgment and the decree filed two revision petitions in this Court. The revision filed by the pre-emptor-petitioner was accepted and the entire land covered by the sale was decreed while that of the vendee was dismissed.
Leave to appeal against the judgment of this Court was dismissed on 22-11-1987 by the August Supreme Court and as such the matter in dispute had attained finality.
2.Mst. Shamim Akhtar decree-holder filed execution proceedings on ,a 27-7-1988 and as a result warrant of possession was issued in her favour. In the meantime the judgment-debtor filed an objection petition pleading therein that the decree-holder was entitled only to joint possession of the land, firstly, because the crop was standing therein, and secondly because the judgment- debtors had to be entered therein as tenants. This petition was dismissed in default. Thereupon ' another warrant for delivery of physical possession was issued. The judgment-- debtors filed still another objection petition asserting therein that as the land which had been decreed in favour of the decree-holder formed part of a joint Khata which the judgment-debtors were cultivating as tenants she could not get physical possession thereof. This petition was resisted by the decree- holder, inter alia, on the ground that the judgment-debtors' plea of tenancy as also of their co-- sharership had not found favour in the earlier round of litigation and on rejection of these two pleas, the suit of the decree-holder was finally decreed in revision by this Court on 23--2-1986. It was also urged that the objection petition being based on these two pleas and even otherwise was barred as res judicata. The learned Executing Court, however, by its order dated 25-1-1989 dismissed the objection petition and issued warrant for delivery of physical possession.
3. Aggrieved by the above mentioned order the judgment-debtors preferred an appeal to the District Judge, D.I. Khan which too was dismissed on 31-1-1989. Hence this revision.
4. S. Mushtaq Ali Shah, appearing on behalf of judgment-debtors-- petitioners, had reiterated the two contentions which he hats raised before the Courts below: firstly, that as the petitioners were in possession of the land as tenants thereof they could not be dispossessed from the suit land in execution of the warrant for delivery of physical possession; and secondly, that the disputed land formed part of joint khata and, therefore, physicial possession could not be delivered to the respondent.
5. Sardar Allah Nawaz Khan, on the other hand, defended the impugned orders of the Courts below.
In this context he had urged and rightly so, that initially the petitioners had resisted the claim of superiority of her right of pre--emption exactly on the two grounds: firstly, of their tenancy, and secondly of their co-sharership but this Court while deciding the two counter-revision petitions filed by the parties herein had not entertained them and had decreed the suit of the respondent.
6. 1 have perused the record carefully. The petitioners' two-pronged attack to the superiority of pre- emptive rights set up by the respondent was finally repelled by Fazal-e-Ilahi Khan, J. In C.Rs Nos.44 and 60 of 1984 filed by the parties herein, and an appeal to the august Supreme Court there against having also been dismissed the matter had attained finality. In an almost identical case, a learned Single Judge of Lahore High Court, in Muhammad Inayat v. Ghulam Murtaza (PLD 1987 Lahore 537) has very ably elaborated the propriety of such an objection in the following paragraph:- "The vendees' claim as co-sharer and tenant was conclusively negated which position has already attained finality. The claim cannot, therefore, be re-agitated and pressed into service for defeating the decree intending delivery of physical possession to the decree-holder."
7. As noticed earlier, the order passed by a learned Judge in Revision Petitions Nos.44 and 60 of 1984, was challenged by the petitioners in the Supreme Court. While deciding the petition for Special Leave to Appeal the august Supreme Court did not find any infirmity in the order of the learned Single Judge of this Court on the questions of co-sharership and tenancy claimed by the petitioners. I must, therefore, hold that these two questions, namely, of tenancy and of co- sharership which are now being re-agitated by the petitioners in these A execution proceedings are barred as res judicata. This bar would operate not only qua the subsequent suits but also qua any other legal proceedings including the execution proceedings.
8. In the above view of the matter, I am of the firm view that the impugned orders passed by the two Courts below on the delivery of physical possession by `Kulbarani' in the instant case were unexceptionable. Finding no merit in this revision it is accordingly dismissed with costs.