MUHAMMAD AFZAL LONE, J.--The dispute between the parties relates to land measuring 130 kanals 7 marlas situate in village Araazi Schajpal, Tahsil and District, Lahore out of which an area measuring 71 kanals 19 marlas was purchased by the petitioners on 21.12.1972 on the basis of three sale deeds.
These sale transactions are evidenced by mutations Annexures 'C', 'C/1' and 'C/2'. The remaining land was not purchased by them but this area along with the rest of the land is claimed to be in cultivating possession of the petitioners. The land was purchased by them from respondent No.3 to whom it was transferred under the provisions of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 and Permanent Transfer Deeds issued in his favour. Respondents Ncr.4 and 5 filed Mukhbari application which was accepted by the Additional Settlement Commissioner vide his order dated 31.10.1977 and the transfer of the land in favour of respondent No.3 set aside. It was found that the land in question being agricultural land, could not be dealt with under the provisions of the Displaced Persons (Compensation & Rehabilitation) Act, 1958. The P.T. Ds issued to the respondents were also adjudged as bogus.
2. Earlier the petitioners filed W.P. No.507-R/79 challenging the validity of the order dated 31.10.1977 which was disposed of by a learned single Judge on 19.5.1979. He concurred with the findings that the land being agricultural could not be transferred under the Displaced Persons (Compensation & Rehabilitation) Act, 1958. The finding that the P.T. Ds were procured fraudulently was also not disturbed. The argument of the other side that the writ petition suffered from laches also prevailed with the learned single Judge. It is discernible from the record that during the course of hearing of that writ petition, the petitioners raised a plea that they having been in cultivating possession of the land, were entitled to its sale in their favour under section 3 of the Act XIV of 1975. In this regard the learned Single Judge took the view that there was nothing on the record Jo sustain their claim and observed that they could move the departmental authorities for redress of their grievance.
3. The available record shows that instead of approaching the departmental authorities, the petitioners filed W.P. No.993-R/79 to canvass their right under section 3 ibid. This writ petition came up for hearing before a learned single Judge who directed that it should be heard along with I.C.A.
No.4 of 1980 and I.CA. No.213 of 1979 in which, inter alia, the validity of Additional Settlement Commissioner's order dated 31.10.1977 had been questioned. These to I.C.As, have been dismissed by us today, as incompetent in view of the law laid down in Muhammad Abdullah vs. Deputy Settlement Commissioner Centre-1. Lahore (PLD 1985 S.C. 107).
4. Before proceeding further we may drecord here a formidable objection raised on behalf of the respondents to the maintainability of the instant Writ Petition. It is contended that the order dated 19.5.1979 in writ petition No.507-RV79 operates as resjudicata as the plea now raised on the rectitude of section 3 to have been urged in the first round of litigation before this Court. Support for this submission is sought from the observations appearing in the case of Mirza Muhammad Yaqub Vs. The Chief Settlement Commissioner. Lahore and another (PLD 1965 S.C. 254). The argument o the petitioners, however, is that the illegalities visited upon the claim of the informers to whom the land Was transferred under order dated 31.10.1977 were not earlier specifically in the knowledge of the petitioners.
5. We do not find any substance in the argument of the learned counsel for the petitioners. A reference to explanation Iv to Section 11 C.P.C, will provide that any matter which might and ought to have been made ground of defence or attack in a former case would be deemed, to have been a matter directly and substantially in issue in the subsequent case. A situation more or less similar to the one, arising in this case, fell for consideration before the Supreme Court in the precedent relied upon by the respondents and it was laid down therein that a petitioner is not entitled to take different plea at different times so as to file more than one petition oh the same facts and if there is some additional plea the proper course for such a litigant would be to move a petition for review.
These observations which are in line with the provisions of Order 47 Rules 1 C.P.C, fully clinch the issue. The right line of action for the petitioners was to have moved a review petition or appear before the Settlement Authorities in accordance with the observations made in the order dated 19.5.1979.
6. We uphold the objection raised on behalf of the respondents and dismiss this writ petition as being incompetent leaving the parties to bear their own costs.