' FAZAL ILAHI KHAN, J.---Petitioner was granted lease of 1026 s.Ft. Of cantonment land situated at Station Road, Zhob, bearing MKT No,1 for purpose of residential/commercial building for a period of 90 years. Petitioner submitted as site plan for raisin composite building consisting of two shops on the ground floor and two rooms on the first floor which was approved on 25-9-1984 and completion certificate issued on 3-12-1984. On 15-12-1987, petitioner through his attorney Haji Usman Mankokhel executed a sale-deed in favor of Haji Muhammad Ali. Haji Muhammad Ali approached respondent. No,4 for transfer of the land which was delayed on the pretext of obtaining sanction from the Central Government. After occupation of the building he was using C.M.H. Masjid Street for his passage to and from the building as also for air and light. That in December, 1992 when the petitioner was away for Tabling' respondents 1 to 3 taking benefit of his absence blocked the passage by raising a structure which closed the doors of both the shops as well as the air and light of the building rendering it completely unusable. Respondents 1 to 3 also constructed hotel and a Tandoor in the street. Muhammad Ali approached the District Judge, Loralai in a suit for declaration and mandatory induction against the respondents. In the written statement the contesting defendants, apart from challenging the transfer, raised a plea that the vendee/assignee had no locus stand to file a suit as street in question was a Government property and no proof was filed/attached with suit showing that street was being used for the purpose of passage/right of easement. No cause of action accrued to the vendee against defendants and thus plaint was liable to be rejected under order VII, Rule 11 C.P.C. The learned District Judge without recording evidence, and after hearing the arguments rejected the plaint by judgment and order dated 28-7-1993 on two-fold grounds firstly, that the plaintiff claimed his right of passage, air and light since 1987, but this period does not come within ambit of section 26 of the Limitation Act and secondly, that the actual lessee i,e, Syed Zainuddin Anglian petitioner herein has not been impleaded as party nor said Zainuddin Algilani seems to be aggrieved by the said act of defendants Nos. 1 to 3. In the concluding part it was held that there was no cause of action for filing the suit and the claim of the plaintiff was barred by section. 26 of the Limitation Act. Aggrieved by the rejection of the plaint the vendee filed R.F.A. No,37 of 1993 in the High Court accompanied with an application under Order I, Rule 10 and section 151, C.P.C. For permission to implead petitioner as respondent in the appeal as well as in the suit. The learned High Court dismissed the appeal on 22- 12-1993.
2. Petitioner, on facts of the case stated above, served respondent No,4 with a notice for removal of the illegal obstruction caused by the construction raised in the street. In reply it was stated that the matter will be scrutinized in the light of the record. On respondent No,4 failure to take action the petitioner filed the present suit in the Court of District Judge, Lorelei. The suit was contested by the respondents on legal and factual pleas by filing the written statement in which certain preliminary objections including that of res judicata were raised. These objections did not prevail with the learned trial Judge and were rejected. The order of the learned trial Judge in this regard was challenged in revision before the learned High Court. The learned High Court vide judgment dated 28-11-1994 accepted the revision petition, set aside the interlocutory order of the learned trial Judge, and dismissed the suit mainly on the ground of the decision already given in the suit between the vendee of the petitioner and the respondents.
3. After hearing the learned counsel for the petitioner leave is granted to consider, inter alia, the contention of the learned counsel as to whether decision given in the previous suit, to which petitioner was not a party and which was dismissed on the ground that plaintiff in that suit had no cause of action and that he had no locus stand as the original allotted was not made party to the suit, debarred the petitioner to file the present suit as held by the learned High Court.