' Brief but relevant facts which necessitated filing of instant petition are, that plaintiff/petitioner instituted suit No,195/1 on 30-7-1990, in the Court of Senior Civil Judge, Haripur for declaration that, in the light of document referred to in heading of plaint, partition of the suit land jointly owned by him and the defendant/respondent be ordered. It was averred in the plaint that respondent on the basis of registered sale-deed No,740, dated 7-10-1953 is entitled to 4 Marlas out of 10 Marlas in Khasra No,65.
2: Suit was not contested by respondent No,2, namely, Abdul Ghaffar, from whom the petitioner has alleged to have derived his title. Respondent No,1, filed an application under Order 2, rule 2 of C.P.C.
Read with section 11 of the Code, and prayed for dismissal of the suit, being hit by principle of res judicata.
3. Learned trial Court vide judgment, dated 23-4-1992, accepted the application and the suit was dismissed. Felt aggrieved, petitioner went in appeal to the Court of District Judge, Haripur, who vide judgment/order, dated 10-2-1993 affirmed the judgment of trial Court, and therefore, this revision.
4. To appreciate, under what circumstances, trial Court and the appellate Court dismissed the claim of the petitioner, one has to go back into the history of litigation between the parties.
' Baland Khan, respondent, had filed Suit No,185/1 on 30-11-1986 against the present petitioner and his sons, seeking possession of suit house, the limits and boundaries whereof were given in the heading of the plaint. In that, the present respondent clearly asserted that through registered sale- deed No,740 dated 2-10-1953, he has purchased the entire house from petitioner. He, in the heading of the plaint as well in first para. Has bifurcated the dispute by making two compartments of the house, namely , {{URDU TEXT}}and {{URDU TEXT}}. His claim was for possession of part of the house comprising, {{URDU TEXT}}of which, he was forcibly dispossessed by the petitioner.
5. Trial Court in the first suit referred to above, framed 10 issues, of which issues Nos.4 and 8 are relevant and reproduced below:--
(4) Whether the boundaries of the suit house in the plaint and in site plan attached with the plaint, are incorrect?
(8) Whether the sale-deed No,740 attested on 2-10-1953 is forged, fictitious, without consideration and illegal and inadmissible in evidence?
On conclusion of the trial finding was given in favour of the present respondent vide judgment, dated 24-7-1989.
6. Dissatisfied from the judgment, petitioner filed appeal, which was dismissed on 10-7-1990.
Revision No,90 of 1990 filed in this Court also failed on 24-4-1991 by order of his Lordship Mr. Justice Mahboob Ali Khan (now the Hon'ble Chief Justice). Findings of this Court in para. No,3 of order were:-- ' "The execution of registered sale-deed No,540 dated 2-11-1953 (attested copy Exh.P.W.2/1) has been duly proved by the respondent by way of secondary evidence as marginal witnesses of the document had since died and so was the scribe. It has been also proved that the deed relates to the property in dispute and had been acted upon. Besides, this, the instrument being 30 years old and having come from a proper custody, the Courts have rightly presumed that it was duly executed and attested by the persons by whom it purports to be executed and attested leaving aside the legal sanctity which is attached to a registered document."
' Above finding attained finality because it was never challenged.
7. It is, therefore, that in the present round of litigations, two Courtsbelow have pressed into service Order 2, rule 2 of C.P.C. And dismissed the suit, because the deed subject-matter of earlier suit is once again put to adjudication though from different dimensions.
8. Learned counsel for the petitioner has filed the present revision which contains exhaustive details of facts and law points.
' It was argued that principle of res judicata is inapplicable as the subject-matter, the nature of relief and its extent is quite different in the present suit from the one in Suit No,185/1, though between the same parties. Submission was made that trial Court should have asked the respondents to file their written statement and after framing the issues, evidence should have been led to see the stand that was likely to be taken by respondent 1 and without adopting the due course of law, plaint of the petitioner was wrongly dismissed which was later affirmed in appeal.
' It was next contended, that according to the pleading and the evidence led in Suit No,185/1, the respondent by his own admission claimed that he has only purchased 4 Marlas from the petitioner, and thus, was having illegal possession of the remaining area of 6 Marlas as the 'original Khasra No,65 measures 10 Marlas. Learned counsel also argued that present suit is for partition and no challenge to the registered sale-deed No,740 is made, therefore, Order 2, rule 2 and section 11 of C.P.C. Have been wrongly applied.
' Learned counsel for the petitioner has also raised certain objections regarding non-adjournment of the case by the trial Court to facilitate and accommodate learned senior counsel in filing of reply to application under section 11 C.P.C. Read with Order 2, rule 2 of the Code.
9. Contrary to what is submitted by the learned counsel for the petitioner, the stand of the respondent is that the present suit was rightly dismissed as it clearly falls within the ambit of Order 2, rule 2 read with section 11 of the C.P.C. It was contended that the principle of res judicata has rightly been applied and that a party to the previous suit is debarred to file fresh suit in respect of same subject matter which stands once adjudicated. Further, that under section 11, Explanation IV parties to the suit are supposed to take up all possible grounds which ought and might be taken and should not leave out any ground either factual or legal to be taken after the result of first suit that in case the same is decided against him.
10. The submission of the learned counsel for the petitioner appears to be ill-founded and based on incorrect reading of evidence adduced during the previous trial, namely, in Suit No,185/1. Heading of the plaint in the earlier suit clearly indicates that the respondent has sued for possession of part of the suit house purchased by him through registered sale-deed No,740, dated 2-10-1953. About the remaining house it was specifically said that the same was in his possession.
' As both the parties one way or the other are referring to the sale-deed No,740 which already stands proved to have been duly executed and attested in the previous round and has attained finality in favour of the present respondent, yet I would like to make reference to the said document (Exh.P.W./1/1 in the previous suit) wherein the present petitioner has sold the suit property for a sum of Rs,400 and has executed a deed in favour of the respondent the boundaries given in the deed are to the effect that towards the north of the property is open plot belonging to Mehnda Khan, towards west are the fields of Mehnda Khan and towards east is a thoroughfare while towards its south is the house of Khani Zaman. These boundaries as described leave no course of doubt that the whole of the property was sold to the respondent. As, at the time of sale transaction the suit property had fallen into limits of urban area, hence no Khasra number was recorded. The next misunderstanding which has probably promoted the petitioner in filing the instant suit and the revision is that respondent Baland Khan while examined in the previous suit in the second line of his cross-examination has stated as under:-- ' "The suit property measures about 4 Marlas".
' The words suit property should not be given wider compass and be restricted to the heading of the plaint in Suit No,185/1. I had already elaborately given in the preceding para. That plaintiff in the said suit has bifurcated the suit property into two compartments and the previous suit was to the extent of part consisting of limits described , but based on document Exh.P.W.1/1.
11. Section 11 of the C.P.C. Restricts the powers of a Court to try a suit or an issue where the matter directly and substantially has been directly and substantially stands decided between the same parties or between parties under whom they or any one of them claims. Subject of course to, that the previous suit was tried by a Court of competent jurisdiction. The section contains certain explanations and Explanation IV is relevant for the present case which provides that a matter which might and ought to have been made ground of defence for attack in the former suit shall be deemed to have been matter directly and substantially in issue in the said suit.
Similarly, Order 2, rule 2, C.P.C. Provides that every suit shall include the whole of the claim to which the plaintiff is entitled and where a plaintiff omitted to sue in respect of or intentionally relinquishes any portion of his claim he shall not afterward sue in respect of the portion so omitted or relinquished.
12. The very object of section 11 of the C.P:C. Is to bound down the parties in the first instance to set up their total claim and defence during the course of their pleadings so to avoid the multiplicity or repetition of same cause of action or of an issue which was intentionally left out. The object behind is to put an end and give finality to a cause of action between the same parties in respect of the same property which shall include matters directly relatable to cause of action or which are ancillary or collateral to the subject in issue.
' In case of ' Amanul-Mulk v. Mian Ghafoor-ur-Rehman and others' (1997 SCMR page 1796) the august Supreme Court has observed as under: ' "Doctrine of constructive res judicata 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 be virtue of this legal fiction be construed to be res judicata."
A party cannot sue for any portion of a claim which it has either omitted to sue or has relinquished in the earlier suit, it cannot assert his right to sue for such claim at a later stage and the Court would not grant leave to bring a fresh suit for such omitted or relinquished claim. The principle of res judicata being mandatory has to be applied against the parties and even an agreement between the parties cannot operate against this principle. Where a party in the previous suit had the right and option to take any ground of attack in respect of issue framed against him and he does not exercise such option he will be debarred to bring a fresh claim through a subsequent suit.
All the grounds of resistance that are or were in the knowledge of the parties must urge in his defence as against the claim set-up by the other party.
12. In the instant case the petitioner was well-aware when he was defendant in the previous suit and he should have taken up clear and unambiguous stand that irrespective of genuineness of the sale-deed, No,740, the property covered under the deed was confined to 4 Marlas and not more.
He could have set up the plea that the total Khasra number consisted of 10 Marlas out of which he has sold only 4 Marlas to the respondent. His case in the previous suit was that of total denial.
During the course of arguments learned counsel for the petitioner could not point out any illegality or irregularity in the orders of the two Courts below and certain facts details whereof are now given in the revision cannot be taken into consideration more particularly when the title of the present petitioner at the time of execution of sale-deed bearing No,740 was never in dispute.
13. This revision petition being devoid of force is dismissed with costs.