MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This petition seeks leave to appeal against the judgment passed by a learned Judge of Peshawar High Court, Peshawar, on 22-1-1996 by which Civil Revision No.110 of 1996 filed by the petitioner for possession by redemption of the disputed property was dismissed.
2. The brief facts of the case, as narrated in the impugned order of the High Court, are that the disputed property which was originally owned by Shamsul Hadi had been mortgaged by him through registered deed dated 23-7-1918 in favour of Ahmad Shah, Hazrat Shah and Gulab Shah sons of Muhammad Shah for a sum of Rs.1,500. It appears that it was later on sub-mortgaged by the aforesaid three mortgagees to one Islahuddin, the predecessor-in-interest of the defendants, through registered deed dated 21-4-1920 again for a sum of Rs.1,500 and thus the latter became the mortgagee. The rights of equity of redemption owned by Shamsul Hadi were purchased on 10- 4-1974 by Mian Anwar-ud-Din by registered sale-deed for sum of Rs.6,500 inclusive of the mortagage charge of Rs.1,500. The plaintiffs, have, therefore, sued the heirs of Islahuddin mortgagee for possession by redemption of the property aforesaid on receipt of the amount of mortgage.
3. The suit, it appears, was strongly resisted by defendant No.1 Mst, Sherin Sultan. She had repudiated the claim of the plaintiffs, namely, Amanul Mulk etc. To the effect that they were the owners-mortgagors of the disputed property. On the contrary, it has been asserted by Mst. Sherin Sultan defendant No.1 that Islahuddin, her father, during his lifetime by virtue of gift dated 12-5-1972, had alienated the disputed property in favour of Mst. Sherin Sultan and, therefore, there was no question of its sale by Islahuddin to the petitioners by registered sale-deed dated 10-4-1974. Earlier the parties have been litigating on the validity or otherwise of the gift deed executed by Islahuddin deceased in favour of his daughter Mst. Sherin Sultan by virtue of Suit No.81/1-A which was filed by Mian Anwar-ud-Din against Mst. Sherin Sultan, Mst. Badashah Bibi her mother, Amanul Mulk present petitioner-plaintiff No. l and one Mian Sheheryar on the ground that the gift deed dated 12- 5-1972 having been executed during 'Marzul Maut' of Islahuddin was liable to be annulled. This suit was dismissed on 21-3-1978 by a learned Civil Judge who had upheld the propriety and validity of the registered gift deed dated 12-5-1972 executed in favour of Mst. Sherin Sultan. It was remanded in appeal on 10-5-1979 but it was again dismissed on 13-10-1979. Mian Anwar-ud-Din plaintiff in Suit No.81/1-A filed an appeal before the Appellate Court which to was dismissed on 10-3-1981 against the appellate judgment and the decree a revision petition filed in the High Court met With the same fate on 14-1-1987. It would thus be noticed that by virtue of Suit No.81/1-A the registered gift deed dated 12-5-1972 was affirmed as a valid gift deed on behalf of Islahuddin.
4. It was in this background that the learned trial Judge as well as the learned Appellate Court held the latter Suit No. 134/1 of 1978, out of which this petition for leave to appeal has arisen, to be hit by the principle of res judicata The civil revision giving rise to this petition in view of the background narrated above was dismissed holding that the suit filed by Ainanul Mulk and others who were also party in the previous Suit No.81/1-A filed by Mian Anwar-ud-Din was hit by principle of constructive res judiciata. In this view of the matter it was held that the to Courts below had arrived at a correct conclusion and that the finding recorded therein do not suffer from lack of jurisdiction, illegal exercise of jurisdiction or from any material irregularity and thus dismissed the civil revision.
5. Mr. Abdul Aziz Kundi, learned Advocate-on-Record, appearing on behalf. Of the petitioner, contends that all the learned Courts below had fallen into a grave error in non-suiting the petitioner on the ground that his suit was hit by principle of res judicata. In this context, it was submitted that the causes of action in the to suits were different; that the relevant claims therein were not identical and that the parties were not litigating under the same title inasmuch as the question of relationship of mortgagor and mortgagee was neither adjudicated upon nor decided.
6. We have not been impressed by this submission of the learned counsel. The learned Judge in the High Court has held that the suit, out of which, this petition has arisen, was hit by the principle of constructive res judicata This doctrine is embodied in Explanation IV to section 11, C.P.C. And is an essential constituent of doctrine of res judicata. It is because of principle of res judicata that the doctrine of res judicata is rendered fully effective. The aim of the doctrine is to compel both the parties to the suit to raise before the Court in support of their contentions all the grounds of attack and defence available to them. By force of this doctrine, the parties have to bring their whole case to the Court and cannot reserve for the purpose of a second suit grounds available to them in support of their case. The rationale behind the constructive res judicata is that if the parties have had an opportunity of asserting a ground in support of their claim or defence in a former suit and have not done so, they shall be deemed to have raised such grounds in the former suit and it shall be further deemed that these grounds had been heard and decided as if these matters had been actually in issue. As such, such parties shall be precluded from raising these grounds in a subsequent suit. Such matters will by virtue of this legal fiction be construed to be res judicata. The plaintiff in the suit giving rise to this petition was conscious of the adjudication on the gift deed of the disputed property executed in favour of Mst, Sherin Sultan. Nonetheless, he made no reference whatsoever to the earlier litigation on the question of gift of the property in favour of predecessor- in-interest of respondents Nos.l to 9 throughout the pendency of the suit and, therefore, their cause was hit by the principle of constructive res judicata. The parties in both the suits were substantially the same. No doubt the relief claimed in the subsequent suit giving rise to this petition was for the redemption of the property which was itself founded on the title of the petitioner. The title in the earlier suit had been adjudicated upon and had been conferred on Mst. Sherin Sultana respondent.
(Since dead and represented by respondents Nos. l to 9).
7. After hearing the learned counsel for the petitioner we see no reason to interfere with the concurrent findings recorded by the three Courts below. This petition has, therefore, no force and is dismissed.