' FAZAL ILAHI KHAN, J.---This is petition for leave to appeal against the judgment of Peshawar High Court, Peshawar dated 20-3-1994 in Civil Revision No,340 of 1993.
2. The facts of the case giving rise to the petition briefly stated are that Pardool petitioner/plaintiff and others instituted Suit No,216/1 on 25-9-1986 for declaration to the effect that they were owners in possession of the land measuring 71 Kanals 5 Marlas detailed therein and that Mutation No,101 dated 18-3-1928 regarding the deletion of name of predecessor-in-interest of petitioners/plaintiffs as well as Mutation No,367 dated 5-8-1895 is wrong, against law and facts and ineffective upon their rights.
3. It may be pointed out that the said land was mortgaged to the predecessor-in-interest of respondents in the year 1895-96 who had subsequently sub-mortgaged it in favour of predecessor-in-interest of the petitioner/plaintiff through Mutation No, 1289 dated 15-6-1908 for a period of 60 years. That petitioners/plaintiffs claimed to have become owners/mortgagees for a period of more than 60 years in a suit previously instituted by them which they had filed in the year 1975 and dismissed up to the Supreme Court of Pakistan where after they have filed the present suit. The suit challenging the record was contested by respondents apart from other on the ground of res judicata which reflected in issue No,5 framed by the learned trial Judge.
4. After recording the evidence of the parties it was found that the previous suit of the petitioners finally stood dismissed by judgment of this Court dated 3-7-1988. It was held that the disputed questions of fact and law involved in the present case between the parties arising out of the same cause of action were resolved and have attained finality. The present suit was instituted after the respondents have been declared to have become owners of the suit land as time-barred mortgagees and on that score they have been also granted decree for possession by redemption of the suit property against the petitioners in Civil Suit No,10/1. Such being the case the grounds available to the petitioners even if not raised in the earlier suits could not be raised in the subsequent suit under section 11 read with Order 2, Rule 2 of the C.P. Code. The petitioners' appeal and revision petition were also dismissed by the learned District Judge and the learned High Court, respectively. Hence, this petition for leave to appeal.
6. We have heard the learned counsel for the petitioners and perused the record. Admittedly the land in dispute was mortgaged with the respondents somewhere in 1895. Thereafter, the mortgagees sub-mortgaged it to the petitioners' predecessor-in-interest for a period of 60 years.
The respondents in order to redeem the land approached the petitioners but they refused rather they (the petitioners) filed a civil suit in the year 1979 and asked for declaration that they had become owners by prescription being time-barred mortgagee on account of the sub-mortgage in their favour through Mutation No,1289 dated 15-6-1908. However, they were unsuccessful in their efforts up to the Supreme Court of Pakistan. In those proceedings they did not raise the plea which they have raised in the present suit, of which this petition has arisen. Such pleas were available to the petitioners and the failure to raise such pleas in the earlier suits between the parties rightly prevailed with the Courts below in dismissing the petitioners' suit as barred under section 11 read with Order 2, Rule 2 of C.P. Code. We find no infirmity in the judgment of the learned High Court and refuse to grant leave to appeal. Petition is, accordingly, dismissed.