' Mst. Zuhra, daughter of Muhammad Tahir and widow of Muhammad Hassan instituted on 19-6- 1974 suit against Abdul Karim and others for declaration that she alongwith defendants 3 to 6 is owner in possession of land bearing Khasra Nos.3065/2325, 2326, 2650, 3551,/2599/1, 2881/1694/2, 2882/1696/5, 1543, 2117, 2978/2118, 2979/2118, 1540, 2596, 3376/2756, 1541, 1542, situate in the revenue estate of village Mashogagar, Tehsil and District Peshawar, according to Record of Rights 1968-69 and that the Revenue Record wherein her share and that of defendants 3 to 6 have been shown 72 shares out of 288 shares is illegal and ineffective upon her rights and the Revenue Record are liable to be corrected accordingly; in the alternative suit for possession of the land in dispute. Abdul Karim, defendant No,1 (now deceased through his sons Sahibzada Muhammad Saleem and Sahibzada Sirajur Rehman, petitioners herein) contested the suit. In Preliminary Objections it was stated that the suit under Order 2, Rule 2 read with section 11, C.P.C. Is not competent and in para. 4 of the written statement it was alleged that in an earlier suit instituted by Mst. Zuhra the matter has been settled and decided between the parties. Amongst other issues the following relevant issue was framed:-- "Issue No,3: Whether the suit is not maintainable under section 11 and Order 2, Rule 2, C.P.C.?" suit and appeal of the petitioners was also dismissed on 7-9-1987. Both the Courts below have held that earlier suit was in connection with inheritance mutation of Muhammad Tahir deceased (father of Mst. Zuhra) in respect of some other property and not the land which is now in dispute between the parties. Hence petition for revision.
' Mst. Zuhra filed on 7-7-1960 (Suit No,67/1 of 1960) against Abdul Karim and others for declaration that she is owner in possession of 1/2 share and defendants 1 to 8-1/2 share in the legacy of her deceased father Muhammad Tahir and that Mutation No,377 attested on 9-12-1936 in connection with inheritance due to Nikah and entries in the Revenue Record due to Mutation No,377 are illegal and ineffective upon her rights in respect of land measuring 86 Kanals, 12 Marlas bearing Khasra Nos. 143, 144,148, 75, 245, 275, 492,577, 617, 259, 263, 269, 497, 583,222,147,1587,1674, 1624, 2798/1560, 1661; 1690, 1688, 149, 1684, 1675,1676,161,163,1629 according to Record of Rights 1951-52 situate in the revenue estate of Village Mashogagar, Tehsil and District Peshawar. The learned Judge of the trial Court by judgment dated 6-6-1963 decreed the suit. It is stated that the judgment and decree was maintained up to the august Supreme Court of Pakistan.
2. The following is the pedigree-table of the parties:-- {{TABLE}} Faiz Muhammad I I Abdul Karim Muhammad Naeem Defdt. No,1 (late)
1 Muhammad Tahir (deceased)
(Bibi Zuhra daughter (plaintiff)
Bibi Aayesha Mst. Sauna Daughter Deft. 2 Muhammad Hassan (son)(decd.)
Bibi Zuhra (widow) Plaintiff I I I II I Zakia Muhammad Faheem Zahid Shah Said Hassan Gul Hassan Defdt. No,6 Defdt. No,5 Defdt.
No,4 Defdt. No,3 {{TABLE}}
4. Learned counsel for the contesting defendant-petitioners vehemently argued that the matter of inheritance from her deceased father Muhammad Tahir was directly and substantially in issue in the former suit (Suit No,67/1 of 1960, decided on 6-6-1963) between the same parties and decided.
Mst. Zuhra omitted' the devolution of the property in respect of the present land in dispute in the former suit and, thus, relinquished her share, therefore, in view of Explanation IV of section 11, C.P.C.
And with Order 2, Rule 2, C.P.C. The suit is neither competent nor can be proceeded and decided.
Learned counsel relied on judgments, "Aziz Ahmad and others v. Mst. Hajran Bibi and another 1987 SCM R 527, Dilawar Khan and others v. Ghulam Nabi and others 1991 SCM R 398 and Allah Dad v.
Mehmood Shah 1990 CLC 33. Learned counsel for the petitioner then contended that the land in dispute is Shamilat land of the revenue estate and partition. Mutation No,1370 was attested on 1-4- 1962 wherein Mst. Zuhra was recorded owner of the property to the extent of her share except the share claimed by her from her deceased father Muhammad Tahir. The suit as such will not be within time. Learned counsel for Mst. Zuhra vehemently contended that the cause of action in both the suits is separate and distinct. The cause of action in the earlier suit was in respect of specific land wherein she was deprived of her share from her deceased father because of Nikah. Mst. Zuhra was the only daughter of Muhammad Tahir deceased and was holding the suit land customarily during the custom and on entering into Nikah with Muhammad Hassan she was deprived of her share in the suit property contrary to Sharia. The cause of action in the instant suit is only in connection with correction of the Revenue Record in respect of the suit land wherein her share from her deceased father Muhammad Tahir has not been incorporated in the Revenue Record. The Revenue Record neither confers title nor truly reflects the shareholding of each co-owner and it is only a decree of the Court which can correct the same. Mst. Zuhra is co-owner with the contesting respondents and, therefore, each entry in the Revenue Record will give fresh cause of action and the question of limitation will not apply in the case. It was lastly vehemently urged that both the Courts have concurrently held that Mst. Zuhra is entitled to her share of the property from her deceased father Muhammad Tahir and, therefore, need not be disturbed in the revisional jurisdiction of this Court. The Revenue Record no-where mentions that Mst. Zuhra is not entitled to the said share and, therefore, in the circumstances of the case both the Courts below have correctly decreed the correction of the Revenue Record. It was repeatedly urged that neither section 11, nor Order 2, Rule 2, C.P.C. Is attracted to the case in hand. Reliance was placed on judgment, "Mst. Saeeda Akhtar and others v. Lal Din and others PLD 1981 Lahore 623, Abdul Hakeem and 2 others v. Saadullah and 2 others PLD 1970 SC 63.
5. In the case of Aziz Ahmad and others while enunciating the dictum on Order 2, Rule 2, C.P.C., the august Supreme Court of Pakistan held as under- ' "It was then argued by the learned counsel that the causes of action in the two suits were different as the suit filed at Bahawalpur was in respect of the property situate in Bahawalpur alone whereas the suit instituted at Faisalabad covered properties both at Bahawalpur and Faisalabad; consequently, the dismissal of the first suit could not have any effect on the second suit. This contention is again without any merit. The causes of action in the two suits were precisely the same, that is, the wrongful allocation of a share in the property left by Sultan Muhammad to respondent No,2. The mere fact that in the first suit the appellants did not seek relief in respect of the property at Faisalabad would not make the cause of action in the second suit a different one. In fact by not seeking any relief in respect of the property situate in Faisalabad in the suit filed at Bahawalpur the appellants would be taken to have given up their claim to the said property, and the second suit would be hit by the bar contained in rule 2(2) of Order II of the Code of Civil Procedure."
' In the case of Dilawar Khan and others leave was refused by applying the bar of constructive res judicata as also the provision of Order 2, Rule 2, C.P.C. Even pn the hypothesis of the case urged before the august Supreme Court of Pakistan.
' In the case of Allah Dad this Court held as under:- "The learned counsel is oblivious of the principle of constructive res judicata as contained in Explanation IV to section 11, and of the other relevant provisions Order 2, Rule 2. In order to apply the bar of res judicata the test is whether the reliefs now claimed were available to him at the time of the institution of the first suit and whether these could have been asked for in that suit, because by force of the doctrine of constructive res judicata he was bound to have brought his whole claim to the Court, to have urged all the grounds in his support available to him and to have sought all the reliefs he could seek at that time. This principle of constructive res judicata bars the trial in subsequent suit of all the matters which might and ought to have been alleged. In view of constructive res judicata a decision is final not only to the matters actually determined in the decision but also to the other matters which might and ought to have been agitated and could have been resolved in that decision. These reliefs which have now been added in the present suit are based on the same cause of action which prompted the plaintiff to institute the former suit and these being available at the time of filing the earlier suit could have been based on the same cause of action, but now a second suit cannot legally be sustained on the same cause of action even for the reliefs not claimed in the first suit. Because of this principle of constructive res judicata piecemeal litigation is precluded and the hardship and in conveniences resulting from repeated litigation on the same cause of action are checked. Moreover, under Order 2, Rule 1 the plaintiff- petitioner was required to have framed his earlier suit in a manner which should have helped final adjudication of the subject in dispute and under the provisions of Order 2, Rule 1 the entire claim to which a suitor is entitled shall be included in the suit and in case he omits to do so the Order 2, rule 2 dictates that such left up claim cannot form subject of the second suit. Therefore, under the provision of constructive res judicata the plaintiff was not competent to file the present suit on the basis of same cause of action although on different grounds or for different reliefs and under Order 2, Rule 2 he is barred to include the left up Khasra No,939 in the present suit. The learned Courts have, therefore, correctly non-suited the petitioner and maintain the said decision on this point."
' In the case of Abdul Hakim and 2 others, the august Supreme Court of Pakistan pointed out to a rough test and observed that a rough test, although not a conclusive one is to see whether the same evidence will sustain both suits which would be the case if both the suits are founded on continuous and inseparable incidents in the same transaction.
6. Muhammad Tahir was co-owner alongwith his brother Faiz Muhammad of land is situate in the revenue estate of village Mashogagar, Tehsil and District Peshawar including share in the Shamilat of the village. Muhammad Tahir died during custom and as he had no male issue, therefore, his property was held customarily by his only unmarried daughter Mst. Zuhra who contracted marriage (Nikah) with Muhammad Hassan, grandson of Faiz Muhammad and according to the custom of the area the property was transferred by Mutation No,377 attested on 9-12-1936 to the legal heirs of Faiz Muhammad, brother of the deceased Muhammad Tahir. Mst. Zuhra challenged the transfer of property of Muhammad Tahir to the collaterals under custom and claimed Sharai share in the legacy of Muhammad Tahir, her father, by instituting Suit No,67/1 of 1960 by mentioning specific Khasra numbers in the revenue estate of village Mashogagar, Tehsil and District Peshawar, but omitted the share in the legacy of her father Muhammad Tahir in the Shamilat land. Mst. Zuhra in substance claims her Sharai share in the legacy of her deceased father in the present case and as well in the Civil Suit No,67/1 of 1960, decided on 6-6-1963. On this rough test the subsequent suit of Mst. Zuhra i,e, the present case is founded on continuous and inseparable incident i,e, that she is entitled in the whole legacy of her deceased father according to Sharia. This the legal right on the same cause of action of Mst. Zuhra stands established but the remedy is barred under Order 2, Rule 2 read with section 11, C.P.C., as held by this Court 1990 CLC 33; that the principle of constructive res judicata precludes piecemeal litigation and the hardship and inconveniences resulting from repeated litigation on the same cause of action are checked. The bar contained in law for seeking remedy for a legal right like in the instant case, under Order 2, Rule 2, C.P.C. Read with section 11, C.P.C. Is for purposes of peace and repose in enjoyment of the property by the parties whose rights in the property have been once settled by the Courts of law and no decree is to be granted for disturbing the same. In the judgment reported 1987 SCM R 527 it was held that causes of action in the two suits were precisely the same in the circumstances of the case as in the case in hand the causes of action in earlier Suit 67/1 of 1960 and in the case in hand are the same.
' Consequently, accepting this petition for revision the judgments and decrees dated 29-6-1986 and 7-9-1987 of the learned Civil Judge, Peshawar and District Judge, Peshawar, respectively are set aside and the suit of Mst. Zuhra is dismissed with no orders as to costs.