BASHARAT AHMAD SHAIKH, J.---The High Court has dismissed an appeal filed by the appellants before this Court, Abdul Rehman and Abdul Majeed, and has held that the suit filed by them on 9th of March, 1993 was hit by the doctrine of res judicata and, therefore, the plaint had been rightly rejected by the trial Court. This is the short point which has to be decided in this appeal.
2. After hearing the learned counsel for the parties and perusing the suit as well as the previous judgment and decree we have reached the conclusion that the High Court fell in error in holding that res judicata was attracted to the case. This conclusion has been reached after examining the previous decree and the present plaint in juxta position.
3. The previous decree was passed on 12th of April, 1989 in case titled Mst. Umar Jan and others v.
Abdul Rehman and others The decree, as translated, runs as follows:-- "Therefore, it is ordered that a decree for joint possession in respect of land mentioned in Khewat No.45, Khata No.62, survey Nos.120/1, 192, 452, 455 and 559 totalling 9 Kanals 2 Marlas as well as land mentioned in Khewat No.48, Khata No.63 survey Nos.4, 12, 117, 118, 45, 5, 120 and 452 totalling 20 Kanals, 7 Marlas situated in village Mandal, shall issue in favour of the plaintiffs and against defendant No.1 on the basis of compromise and against the other defendants on the basis of merits that share to which the plaintiffs are entitled under Sharia from the estate of Ismail deceased be given in joint possession to the plaintiffs. The plaintiffs are full owners of the share which devolves on them from the estate of deceased Ismail. Cost of the suit will be borne by the respective parties."
4. The suit out of which the present appeal arises was filed on 9th of March, 1993 by Abdul Rehman and Abdul Majeed who were defendants in the previous suit. Respondent Mst. Umar Jan and Mst.
Latif Jan are arrayed as defendants. The Revenue Commissioner has also been impleaded as one of the defendants in the new suit. It is the common ground between the parties that the parties as well as the suit property in the present suit are the same as in the previous suit leaving out unnecessary details, the summary of the plaint in the present suit is that in the decree passed on 12th of April, 1989 the respective shares of the parties were not determined, but Mst. Umar Jan and Mst. Latif Jan got the decree passed on 12th of April, 1989 executed without partition and without determining the respective shares of the parties and have also succeeded in getting entries recorded in the Revenue Record. Some part of the suit land was acquired and the compensation money was received by the defendants. By receiving the amount of compensation the share of the defendants has been satisfied. If any share of the defendants in the suit land still is left that is common with other co-sharers in the joint Khewat as are mentioned in the Jamabandi. In the previous suit filed by the defendants the other co-sharers in the Khewat were not joined as party and due to that the defendants have lost their right and cannot now lay a claim of getting more share. The plaintiffs are not in possession of any share of any land falling to the share of the defendants. However, the defendants have again initiated proceeding for execution of the previous decree which had already been executed. It is not allowed by law. The defendants have no right or share in light of Sharia in the land in possession of the plaintiffs.
5. The bar of res judicata in section 11 of the Code of Civil Procedure is applicable only if in a subsequent suit an issue is raised which was directly and substantially in issue in the previous suit and was finally decided. A perusal of the plaint in the new suit shows that issues finally decided in the previous suit are not sought to be reopened. In fact the plaint has a specific reference to the previous decree and is mentioned in such a way which leads to the inference that the previous decree is binding on both the parties. What is stated in the plaint is that the previous decree was only to the effect that the defendants were entitled to their share in light of Sharia and that the share of the defendants in light of Sharia has already been received by them and they are not entitled to any more share. A perusal of the previous judgment as well as the decree passed on 12th of April, 1989 clearly shows that the position taken in the new plaint is correct that the respective shares of the parties were not worked out or determined. It is thus clear that the appellants did not attempt to re-open the matter decided in the previous suit but, as claimed, they sought its implementation. The allegation that the defendants have received their share in accordance with Sharia by receiving compensation of land which is said to have been acquired, may ultimately be proved to be wrong when the parties lead evidence but this can only be decided after the plaintiffs are put to proof in accordance with the laid down procedure. However, if the plaintiffs are able to prove what they have stated in the plaint they are clearly entitled to the relief, partly or wholly, prayed for by them. The bar of res judicata, therefore, is not applicable to these facts. It has been applied without examining the previous decree and the plaint of the present suit.