' The litigation culminating into the present civil revision has a chequered history. The suit land was owned by one Allah Ditta son of Pir Bakhsh. Mutation No, 669 of inheritance was entered on 7-1- 1949 on report that Allah Ditta died on 12-12-1948. Ghulam Rasool claiming to be son of Allah Ditta filed an application on 3-5-1949 to the Revenue Officer that his father has died about two months ago. On this information mutation No, 675 was entered. Later mutation No, 669 was cancelled on 6- 6-1949.On the ground that the report as to the death of Allah Ditta was false and on the same date mutation No, 675 was attested in favor of Ghulam Rasool treating him to be the sole surviving heir of Allah Ditta. The petitioners claiming to be the reversionary filed an appeal, on which the case was remanded on 11-11-1950 for fresh decision. On remand, the Revenue Officer cancelled both the mutations on the ground that Allah Ditta was still alive. According to the petitioners. Allah Ditta infact died on 14-8-1951. This controversy ultimately led to the filing of two civil suits. One was filed by the petitioners, claiming that they are entitled to inherit the estate of late Allah Ditta and that Ghulam Rasool was not the son of said Allah Ditta. The other suit was filed by Ghulam Rasoolp claiming to be the exclusive owner of the suit land being the sole surviving son of Allah Ditta. Both these suits were consolidated vide order dated 5-5-1967 and issues were framed therein. I deem it necessary to reproduce the following issues that were framed, inter alia, by the learned Civil Judge:---
(1) Whether Ghulam Rasool defendant No,5 or the plaintiff in Suit No, 173 of 1966 is the real son of Dittu son of Pir Bakhsh resident of Hassan Wali, District Gujranwala? OPD-5
(4) Whether the plaintiffs are near collaterals of said Dittu deceased, if so, what is their share in the suit land? OPP
2. As would be apparent from the tenure of the said issues, the proceedings in both the suits were conducted in the suit filed by the present petitioners. The suits were decided vide judgment and decree dated 9-7-1968 of a learned Civil Judge, Wazirabad, who dismissed the suit of the petitioners, but decreed the suit of the said Ghulam Rasool. Feeling aggrieved, the petitioners filed an appeal against the said consolidated judgment and the two decrees, which came up for hearing before a learned Additional District Judge, Gujranwala on 9-4-1970, when the petitioners made a statement that they be permitted to withdraw the appeal as well as the suit filed by them and to permit them to file a fresh suit. Counsel for the said Ghulam Rasool expressed his no objection to the said proposal, subject to payment of costs. The earned Additional District Judge consequently proceeded to dismiss the appeal as withdrawn and also to permit the petitioners to withdraw their suit with permission to file a fresh suit. Thereafter. On 2-6-1970 the present suit was filed for the same relief i,e, that the petitioners are the near heirs of the deceased Allah Ditta and that the said Ghulam Rasool or any one of the other respondents are not the heirs. It may here be stated that after the cancellation of both the mutations, as foretasted, the matter was again taken up and this time mutation Not 849 was entered on 5-1-1958 and attested on 22-5-1958 in favour of the respondents other than the said Ghulam Rasool and this is what led Ghulam Rasool also it file the said suit, which was decreed in his favour. The present suit was contested primarily on the ground that the matter stands concluded by1 the decree passed in favour of Ghulam Rasool on 9- 7-1968. Issues were framed, the relevant out of which is reproduced here:-
(3) Whether the suit is barred by res-judicata, as contended in preliminary objection No,1 in the written statement filed by defendant No,5? OPD-5 ' The learned trial Court proceeded to dismiss the suit vide judgment and decree, dated 15-12-1987.
The petitioners filed an appeal, which was 'entrusted to a learned Additional District Judge, Gujranwala, who in the first instance proceeded to direct the trial Court under Order 41, Rule 25.
C.P.C. To record finding on issue No, I-A and to re-submit the records. The learned trial Court then recorded its findings and found that Dittu had died on 23-3-1949. These findings were recorded on 18-6-1990 and the records were re-submitted. The learned Additional District Judge after inviting objections to the said findings, proceeded to hear the appeal and dismissed the same vide judgment and decree, dated 16-1-1991.
3. Ch. Muhammad Anwar Bhindar, learned counsel for the petitioners contends that Issue No,3 has been wrongly decided by the learned Courts below. According to him the present suit was not barred by res judicata. Mr. Khan Muhammad Virk, learned counsel for the respondents, on the other hand, supports the impugned judgment and decree.
4. I have gone through the certified copies of the records appended with the civil revision with the assistance of the learned counsel for the parties. This case presents rather an unusual proposition.
Learned counsel for the petitioners with reference to the cases of Abdullah v. Faqirullah etc. (1981 Supreme Court Monthly Review 585), Khushi Ram-Karam Chand v. Commissioner of Income Tax, Punjab (AIR 1927 Lahore 288), Manzoor Ahmed v. Additional District Judge II, Rahitnyar Khan and another (1988 CLC 436) and Lal Din and 2 others v. Mst. Zeenat Bibi and 4 others (1987 CLC 587) contends that the withdrawal of the appeal by the petitioners against the consolidated judgment and decree and consequent withdrawal of the suit with permission to file a fresh suit, would be a circumstance to work against the application of the provisions of section 11, C.P.C. Or the principle of res judicata to the suit filed by the petitioners thereafter. The cases cited by the learned counsel for the petitioners are not of much help for deciding the controversy involved in the present suit.
The said case primarily laid down the Rule that the principle of res judicata or for that matter the provisions of section 11, C.P.C., are not applicable to the proceedings in appeals and failure on the part of a party to file an appeal against one of the decrees passed on the basis of a consolidated judgment would not bar the hearing of the other appeal.
5 In the present case, it is an admitted fact apt the suit filed by Ghulam Rasool and the one filed by the petitioners were tried together after consolidation and a consolidated judgment was recorded, which resulted in passing of two decrees, one dismissing the suit of the petitioners and the other decreeing the suit of Ghulam Rasool. Now there is no cavil with the proposition that one appeal against the said consolidated judgment and the two decrees was permissible. The difficulty arises as to what would be the effect of the withdrawal of appeal vis-a-vis the decree that was passed in favour of Ghulam Rasool, as a result of the said consolidated judgment. I have already reproduced the two issues pertaining to the respective merits of the suit filed by the petitioners as well as the suit filed by Ghulam Rasool. Under one issue Ghulam Rasool had to prove that he was the only son of Allah Ditta and as such the exclusive owner of the suit land. Under the other issue the petitioners were required to prove that they are the heirs and as such are entitled to inherit the suit land. The learned trial Court vide judgment (Exh. D.21) found that Ghulam Rasool is the son of Ditta and as such is sole surviving heir and on the basis of the said finding decreed the suit. Under the afore- referred second issue the learned trial Court found vide the same judgment (Exh. D.21) that the petitioners have failed to disprove the fact proved by Ghulam Rasool as to his being the sole surviving heir of Allah Ditta and consequently the fact that they are entitled to inherit the suit property. On the basis of this finding the suit filed by the petitioners was dismissed. Ghulam Rasool was not required to file any appeal, nor could he be said to be aggrieved of any part of the judgment or of the decrees passed in the suit. It was the petitioners who felt aggrieved and for the redressed of the grievance filed the appeal seeking setting aside of both the decrees and reversal of the said consolidated judgment. It was this appeal which was withdrawn. Now the only logical result of the withdrawal of the appeal is that both the decrees impugned in the appeal remained intact, as they were upheld. The further step taken by the petitioners was to withdraw their own suit with permission to file a fresh one, which permission was granted. No Rule, law or logic, in my humble opinion, supports the -contention of the learned counsel for the petitioners that the effect of said withdrawal of the suit by the petitioners was that the other decree passed in favour of the said Ghulam Rasool in the suit , filed by him against the petitioners and other beneficiaries of the impugned mutation, stood set aside or effaced by the said order of the learned Appellate Court permitting the withdrawal of suit filed.By the petitioners. The overall effect of the said proceedings and the order passed therein is that the appeal of the petitioners stood dismissed as withdrawn.
Resultantly, both the decrees remained intact. The result of the order permitting withdrawal of the suit was that it would be deemed that the suit was never filed by the petitioners. (Reference be made to the cases of Becharam Choudhuri and others v Puma Chandra Chatterji and others (AIR 1925 Calcutta 845), Sashi Bhusan Basuri v. Moti Bala Dassi and others (AIR 1945 Calcutta 317) and Allah Ditta v. Abdul Ghafoor (1992 M LD 1301). The decree in favour of Ghulam Rasool remained intact and ensure for his benefit. Needless to add here that under the scheme of Code of Civil Procedure a first appeal is filed not against the judgment but against the decree of the trial Court while a second appeal is also filed against the decree passed by a Court of appeal on an appear against the decree of the Court of first instance.
6. The learned counsel for the petitioners then argued that the respondents were estopped from objecting to the suit on the ground of resjudicata as the permission was granted with the consent of their counsel to file the fresh suit.
7. Section 11, C.P.C. Debars a Court in mandatory terms from trying any suit or issue in which the matter has been directly or substantially in issue in a former suit between the same parties and which has been heard and finally decided by a Court competent to try the same. This provision of law has been enacted to confer finality upon a decision given after a fair trial and it is the intent of law that where a matter has been tried once it ought not be repaginated. The principle is of such a universal application that even, in such special laws like the West Pakistan Family Court Act, 1964 and Punjab Urban Rent Restriction Ordinance, 1959, where it is now settled that provisions of C.P.C.
And the Law of Evidence do not apply, the legislature has seen to it that provisions are put in to fully apply the said principle of res judicata. I am not inclined to hold that respondent No,5 should or could have waived the said bar against the suit filed by the petitioners. No other point has been urged. The civil revision is accordingly dismissed leaving the parties to bear their own costs.