1. ' C.MA. No, 6908 of 1989 is an application under Order 7, Rule 11, C.P.C. Filed by defendant No,1, ' Brief facts forming the background of this suit are that the plaintiff was in occupation of house bearing No, 111-H/9-22 measuring 133 sq. Yds. Situated in Nazimabad, Karachi. The former owner of the house one Mirza Abdul Haq had filed Rent Case No,400 of 1966 against the plaintiff in which she had deposited rent for about five yeaRs, On 29-9-1969 the said Mirza Abdul Haq is said to have agreed to sell this property to the plaintiff, but Mirza Abdul Haq died on 17-12-1969. According to plaintiff on 25-5-1976 defendant No,2 dishonestly and fraudulently transferred and conveyed the above house through a sale-deed in favour of Defendant No,1. Defendant No,1 subsequently applied for a loan and obtained a sum of Rs, 15,000 from the House Building Finance Corporation.
2. Having come to know of the said fraudulent transaction the plaintiff filed Suit No,1609 of 1979 (New No, 59 of 1985) for cancellation of the said Sale Deed. The said suit was dismissed on 31-3-1986 by Vlth Senior Civil Judge, Karachi (West). In the meanwhile Defendant No,1 filed Rent Case No 3317 of 1976, which was dismissed on 27-5-1984. Subsequently Defendant No, 1 filed Rent Case No, 986 of 1987 against the plaintiffs husband, who according to Defendant No,1, was the tenant of the house in question. The said Rent Case culminated in ejectment order dated 20-3-1987.
3. ' In the present suit, in addition to the pleas taken by the plaintiff in her previous suit i.e, Suit No,1609 of 1979 the plaintiff has also raised an additional plea that she is the lawful owner of the said property on the basis of her undisturbed adverse possession for the last 35 years, The Defendants have filed written statement wherein it is alleged by Defendant No,1 that he had purchased this property by a legal and valid Registered Sale Deed dated 25-5-1976 and that his name had been duly mutated by the K.D.A. It was further alleged that the plaintiffs husband Muhammad Usman was tenant of the said property and had been admittedly making payment of rent to Mirza Abdul Haq as well. Defendant No,1 after purchasing the property from Mirza Abdul Haq intimated the plaintiffs husband of the transfer of ownership by notice dated 8-6-1976 and called upon him to make payment of rents and after his failure to do so, filed Rent Case No,3317 of 1976 against him. In the said rent case the plea of purchase of plot by the plaintiff was taken. But the same was not upheld and the ejectment order was passed against the plaintiff as shown above. Execution application was filed before the Rent Controller. This is an admitted fact that the plaintiffs husband as well as the plaintiff have been ejected from the house in question in execution of the said ejectment order.
4. ' Mr. Riazuddin, learned Counsel for the defendant has contended, that this suit is barred by the principle of res judicata embodied in section 11, C.P.C. As well as in Order II, Rule 2, C.P.C. As the matters directly in issue between the parties in respect of the house in question in the present suit, have been heard and finally decided by competent Court in Suit No, 1609 of 1979. In addition the new plea of adverse possession by passage of time for the last 35 years as stated in para. 25 of the plaint was not taken in the earlier suit and therefore, cannot now be taken. It was further contended that the suit was also barred under Section 22 of Sindh Rented Premises Ordinance read with Section 12(2), C.P.C, as the order passed in Rent Case No, 986 of 1987 had become final and could not have been challenged by a separate suit.
5. ' Mr. Faizuddin, who appeared for the plaintiff contended that the sale in favour of Defendant No,1 was made by defendant No,2 claiming to be attorney of Mirza Abdul Haq at the time when Mirza Abdul Haq had already died, and therefore, the said sale was a nullity in the eyes of law. Moreover, she was in undisputed occupation of the property for the last 35 years and had, therefore, acquired the right of adverse possession culminating into ownership.
6. I have given my thoughtful consideration to the contentions of the learned counsel appearing for both the parties and have come to the conclusion that the adjudication of all these points raised by plaintiff No, 1 in Suit No, 1609 of 1979 on 31-3-1976 by the VIth Senior Civil Judge, Karachi (West) has barred the filing of the present suit on the principle of res judicata. Not only that the plaintiff not having taken the plea of adverse possession in that suit under Order II, Rule 2, C.P.C. Apart from it in view of the provisions of Section 22 of the Sindh Rented Premises Ordinance read with Section 12(2), C.P.C. The plaintiff could not have filed this suit. The plaintiff has already been ejected from the occupation of this property.
7. ' I, therefore, reject the plaint under Order VII, Rule 11, C.P.C.
8. Plaint rejected.