1. SARDAR SAID MUHAMMAD KHAN, CJ.---This appeal is directed against the judgment of the High Court dated 5-12-1991; the petition for leave to appeal was converted into appeal in view of the circumstances of the case.
2. Brief facts giving rise to the present appeal are that a declaratory suit was filed by the appellant, herein, that the land measuring 4 marlas, comprising survey No,396, situate in Bagh Khas, was in the possession and the ownership of the plaintiff and the grant of the same in favour of the defendant and mutation sanctioned in favour of respondent No,1 might be declared inoperative and ineffective against the interests of the appellant. The suit was subjudice before the trial Court when the matter came up before the High Court pertaining to the interim relief against the order of the District Judge, Bagh, dated 30-8-1990, whereby the temporary injunction issued in favour of the plaintiff-appellant was vacated by the District Judge. During the controversy regarding the interim injunction, some documents were placed on the record by Muhammad Saleem Khan, respondent, on which a show-cause notice was given to the plaintiff-appellant as to why his suit should not be dismissed as being barred by the principle of res judicata. Consequently, the learned Judge in the High Court heard arguments and finally came to the conclusion that the suit filed by the plaintiff- appellant, was not only hit by the principle of res judicata but the same was frivolous and vexatious. A petition for leave to appeal was preferrd by the appellant to this Court which was converted into the appeal and the arguments were heard.
3. The case of the plaintiff-appellant is that he had obtained land measuring 8 marlas, comprising survey No,396, as grant from the Government as early as on 14-3-1972 over which he had also constructed a building. It is averred that Muhammad Saleem, respondent, got the grant of the 4 marlas of the land out of the same land without his knowlege on 28-4-1981 and also got mutation of the same attested in his favour on 3-12-1981. The order of grant made in favour of respondent No,1 was challenged, inter alia, on the ground that as the suit land was included in the land which was sanctioned in favour of the plaintiff-appellant, the said land could not be sanctioned in favour of respondent No,1.
4. The case of respondent No,1 is that the suit land which was sanctioned in his favour was not the land which was granted to the plaintiff-appellant but that is a separate piece of land; his case is that there had been protracted litigation between the parties and fmally it was proved that the land granted to, the plaintiff-appellant, measured 8 marlas, but he was in possession of one marla more, i.e,, 9 marlas. His case is that not only that the matter was probed into by the Commission constituted by the Government so as to resolve the controversy between the parties, but previously the suit filed by the plaintiff-appellant on the same cause of action was dismissed by the Civil Court. It is further the case of respondent No,1 that Qari Muhammad Yasin and others, who also claimed to have purchased the land measuring 12 marlas out of the aforesaid survey number, were found in possession of 13 1/2 marlas, i.e,, 1 1/2 marla more than their alleged entitlement; it is also the case of respondent No,1 that Qari Yasin and others with the connivance of the plaintiff- appellant, had previously instituted a suit with regard to the suit land which was dismissed by the trial Court and the findings were maintained upto the High Court. In the said suit Muhammad Yasin and others had arrayed Zaighum Saleem, the plaintiff-appellant, as proforma defendant who also appeared as a witness for the plaintiffs in that case. Thus, according to respondent No,1, the suit filed by the plaintiff-appellant is hit by the principle of res judicata not only on account of his previous declaratory suit but also because that he being the proforma defendant in the case filed by Muhammad Yasin and others is also debarred to agitate the matter afresh.
5. It may be stated here that after the unsuccessful dismissal of the suit filed by Muhammad Yasin and others, in which Zaighum Saleem plaintiff-appellant, was a proforma defendant, Muhammad Yasin and others also filedanother suit which had also been dismissed by the High Court as being hit by res judicata; Qari Yasin and others and the appellant, herein, were imposed examplary costs which were to be paid to Muhammad Saleem respondent. The learned Single Judge in the High Court, after considering the record of the protracted litigation between the parties, has come to the conclusion that in fact Muhammad Yasin and others and Zaighum Saleem, plaintiff-appellant, have been in league with one another and resorted to joint and separate litigation at various times so as to deprive the respondent No,1 of enjoying the fruits of the suit land which was legally sanctioned in his favour; the learned Judge has expressed the view that this is a clear case of abuse of process of Court which manifeststhat the plaintiff-appellant and Muhammad Yasin and others joined hands together so as to deprive the respondent No,1 to retain the suit land by harassing him through vexatious litigation. The learned Judge, by tracing out the history of the case, brought out the following facts to the limelight in support of the conclusion arrived at by him.
6. The same are reproduced as under:- "(i) They had first filed a joint review petition before the Government against the grant of land in favour of respondent on which a Commission was appointed, who finally reported in favour of respondent and against the appellant and Qari Muhammad Yasin. This review petition was rejected through a Govt. order dated 4-12-1982;
(ii) Qari Muhammad Yasin and others challenged the grant of land in favour of respondent through a writ petition before the High Court, which was dismissed on 26-1-1983;
(iii) Appellant instituted a suit before Sub-Judge Bagh for a declaration that he is owner of the suit land and for possession, which was dismissed after regular trial on 29-7-1989, and the order was upheld by the High Court on 4-2-1990;
(iv) A civil suit for a declaration and cancellation of the grant of disputed land in favour of respondent, in which appellant was a proforma respondent, having common interest with Qari Muhammad Yasin, was also dismissed on 3-12-1981 by Sub-Judge Bagh. The judgment was upheld by the learned Additional Distt. Judge Bagh and High Court on 23-4-1988 and 29-5-1990 respectively. (The latter being an order of dismissal of appeal in default);
(v) Qari Muhammad Yasin (an ally of appellant) again filed a suit of similar nature for the disputed land before Sub-Judge Bagh which was dismissed and appeal against the order was rejected by District Judge on 5-2-1991 and by High Court on 31-7-1991;
(vi) The instant suit is sixth, in the series of attempts to usurp the landfrom the respondent."
7. We have heard the arguments and perused the file. The learned counsel for the appellant, Mr.M.Tabassum Aftab Alvi, has argued that the High Court has committed error in holding that the suit filed by the plaintiff-appellant is hit by the principle of res judicata or that it was frivolous and vexatious. He has argued that previous suit filed by the plaintiff-appellant was under section 9 of the Specific Relief Act and, thus, the decision in the said suit would not constitute res judicata against the plaintiff-appellant to bring the present suit which is based on title. The learned counsel has cited the following authorities in support of his contention:- In Abdul Aziz v. Mst. Daulat Bibi PLD 1973 Lah. 125, it was held that a suit brought under section 9 of Specific Relief Act would be res Judicata only to the extent of facts regarding possession and dispossession and not on the question of title because the question of title cannot be gone into in a suit under section 9 of the Specific Relief Act.
8. In case reported as Debendra Mohan Das v. Muhammad Afazuddin PLD 1965 Dacca 269, it was observed that the question of title cannot be raised in a suit for recovery of possession under section 9 of the Specific Relief Act. It appears that the dispute in that case was as to whether the defendant was entitled to resist the suit under section 9 of the Specific Reilef Act by provinghis title.
9. The question of res judicata was not directly involved in that case.
10. In case reported as Messrs A.R. Muhammad Siddique v. The Saifce High School Board 1983 CLC 507, it was held that a question of title is not a defence in the suit brought under section 9 of the Specific Relief Act. In that case too, the question of res judicata was not directly involved.
11. In case reported as Muhammad Rafique v. Muhammad 1989 CLC 1318, it was opined that a suit under section 9 of the Specific Relief Act is based on the factum of dispossession and possession and, thus, the question of title neither can be raised nor gone into in such a case. In that case also the question of res judicata was not involved.
12. The learned counsel for the respondents controverted the proposition propounded by the learned counsel for the appellant and argued that the former suit instituted by the plaintiff-appellant though purported to have been instituted under section 9 of the Specific Relief Act yet it was a suit under section 8 of the Specific Relief Act in view of the averments made therein because the plaintiff-appellant prayed for a declaration to the effect that he was owner of the suit land and also sought the possession on the ground that he was dispossessed of the same when he was not present at home. The learned counsel has placed a copy of the judgment in the former suit on the record and taken us through the judgment wherein the issue on the question of grant of suit land in favour of the plaintiff-appellant was clearly tried and was found against the plaintiff. The trial Court discussed the merits of the case in detail and also referred to the decision of suit filed by Muhammad Yasin and others in which the plaintiff-appellant was arrayed as proforma defendant; and came to the conclusion that in fact the disputed piece of land measuring 4 marlras was in the ownership and possession of the respondent in pursuance of valid grant sanctioned in his favour by the Government. Thus, the learned counsel maintained that the mere fact that the introductory heading of the suit instituted by the plaintiff-appellant shows that it was instituted under section 9 of the Specific Relief Act, would not make any difference when the question of title was specifically raised, issue was framed on the point and the same was finally decided against the plaintiff- appellant. The learned counsel has cited the following authorities in support of his contention:- In Muhammad Nasim v. Mst. Majudan 1989 CLC 1411, it was held that as in the earlier suit which was instituted under section 9 of the Specific Relief Act and the subsequent suit which was filed under section 8 of the said Act, the issues involved substantially were same; the former suit would operate as res judicata in the subsequent suit which was based on title. The ratio decidendi of the case was that although the earlier suit was filed under section 9 of the Specific Relief Act but as the same covered the issues which were framed in the subsequent suit based on title, the suit would be barred by res judicata as the earlier suit was also tried by the Court of competent jurisdiction and was between the same parties.
13. In case reported as Asif Jah Siddiqi v. Government of Sindh PLD 1983 SC 46, it was held that the findings given on the points in writ jurisdiction would constitute res judicata between the parties in a subsequent civil suit. It was observed that as the questions raised in the civil suit were also raised in the writ jurisdiction and were decided, the same cannot be tried in civil suit afresh.
14. In Muhammad Tufail v. Atta Shabir PLD 1977 SC 220, it was opined that the object of the principle of res judicata is to attach finality to a judicial decision. It was observed that the question would be barred by res judicata if no appeal lies to the higher forum or if the decision of the trial Court was appealed against but it was dismissed. It was observed that none of the parties would be allowed to canvass the matter afresh by way of subsequent suit or proceedings between the parties.
15. In case reported as Rehmat Khan v. Rehmat Khan PLD 1991 SC 275, it was held that if the previous suit was based on rules of Muslim law of inheritance, the subsequent suit based on the custom about the same property would be barred by the principle of res judicata.
16. Next, it was also argued by Mr.Tabassum Aftab Alvi, Advocate, the counsel for the appellant, that as the previous suit instituted by Muhammad Yasin and others wherein Zaighum Saleem was impleaded as proforma defendant wgs about a different piece of land, it would not constitute res judicata.
17. On the other hand the learned counsel for the respondents argued that throughout the litigation between the parties, namely, Muhammad Yasin and others and Zaighum Saleem, at one hand, and Muhmmad Saleem, respondent, on the other, the suit land has been the same, i.e,, land measuring 4 marlas, comprising survey No,396. He has contended that the suit land is situated between the land occupied by Zaighum Saleem on one side and Muhammad Yasin and others on the other side and they both joined hands together so as to deprive respondent No,1 of the land and divide the same between themselves. 'We have considered the arguments raised at Bar and we are of the opinion that the earlier suit filed by the plaintiff-appellant was though purported to have been instituted under section 9 of the Specific Relief Act was in fact based on title because the plaintiff-appellant sought declaration to the effect that he was owner of the suit land as a result of grant made in his favour by the Government. Thus, the argument that the title of the suit land is not relevant factor in a suit under section 9 of the Specific Relief Act is not tenable because the plaintiff-appellant himself sought declaration regarding title and the relevant issue was decided against him. Even if we assume for the sake of argument that as the earlier suit filed by the plaintiff does not create bar of res judicata, the fact remains that the plaintiff-appellant was proforma defendant in the suit filed by Muhammad Yasin and others but he did not challenge the decision given in that suit at any stage.
18. The learned counsel for the appellant could not cite any authority that res judicata would not operate against a proforma defendant. We fully agree with the findings of the learned Judge in the High Court that the present suit is not only barred by res judicata but has been filed so as to harass respondent No,1 to forego his legal right in the suit land. The High Court has rightly held that the suit is vexatious and has been instituted with the ulterior motives. Thus, the High Court has rightly dismissed the suit and opined that this was a fit case for awarding exemplary costs. However, taking overall circumstances of the case, we reduce the costs to be paid to Muhammad Saleem, respondent, from Rupees fifteen thousand to Rupees ten thousand.
19. Except for the above modification, the appeal is hereby dismissed with no order as to the costs so far as appeal to this Court is concerned.