' The brief facts giving rise to this writ petition are that the land in question is situated in Khasra No,1408 min, 1409-min, 1410-min and '14232-min at Kanal Park, Lahore. The land in question was evacuee property. The land measuring 12 Marlas out of Khasra Nos. 1408 and 1432 was transferred to the predecessor-in-interest of petitioner late Abdul Rehman in Settlement Scheme No,6. The original allottee had constructed nine rooms over the plot in question. The same was converted into shops and rented out to different persons by the original allottee. The P.T.D. Was also issued in favour of original allottee by the Settlement Authorities on 14-9-1966. The predecessor-in-interest of petitioner and petitioner are paying the property tax qua the property in question. Talib Hussain also purchased a plot measuring 14 Marlas and 100 sq. Ft. In an open auction from the Settlement Department. The same is situated in Khasra Nos.1408, 1409 and 1410 in the Kanal Park, Lahore. Both the plots are adjacent, the predecessor-in-interest of the petitioner purchased the plot from Talib Hussain vide registered sale-deed, dated 10-8-1964. The respondents interfered in peaceful possession and enjoyment of the aforesaid plot and the original allottee was constrained to file suit for declaration and cancellation of documents to show contrary title of other persons than the predecessor-ininterest of the petitioner. The suit was filed by the predecessor-in-interest of petitioner against general public as a whole who ultimately succeeded and secured status quo order from this Court on 28-3-1978 in C.M. No,6634-77 in C.R. No,671-77. The employees of the respondents came to the house of the petitioner for the purpose to demolish the construction of petitioner without any notice. The predecessor-ininterest of petitioner being aggrieved by the action of employees of respondents, filed suit against respondents with the prayer that respondents be restrained from demolishing or interfering in the construction before the Civil Judge, 1st Class, Lahore. The respondents did not further proceed in the matter in view of the aforesaid restraint order. The predecessor-in-interest of petitioner had withdrawn suit on 23-1-1979.
The respondents thereafter interfered in the peaceful possession, title and enjoyment of the property in question, the original allottee filed an application on 9-1-1983 before respondent No,2 with the prayer that respondent No,1 refused to accept his title qua the plots in question depsite PTDs were issued in his favour. The Deputy Settlement Commissioner after hearing all the concerned including respondent No,1 passed the order in favour of predecessor-in-interest of petitioner on 19-1-1984.
2. The learned counsel for the petitioner submits that Deputy Settlement Commissioner had given findings against respondents as is evident from paras.7 and 8 of the order of Deputy Settlement Commissioner on 19-1-1984; that respondents did not agitate the matter before any higher authority, therefore, order of Deputy Settlement Commissioner is binding between the parties; that respondents failed to place on record any document qua the acquisition of land in question; that respondents attached Annex. R/1 with the report and parawise comments which reveal that the immovable evacuee property concerned in the scheme approved by the Government of undivided Punjab before partition whereas Annex. R/1 reveals that it was issued on 16-5-1951, therefore, respondents failed to bring the case within the _parameter of letter, dated 16-5-1951; that petitioner attached Notification alongwith re-joinder, dated 26-5-1951 which reveals that scheme was floated by the respondents under the provisions of Punjab Town Improvement Act, 1922; with the condition that Kanal Park Colony on the West, known as Jail Road, Extension Scheme, Lahore Khasra Number mentioned in this notification did not envisage the land in question was also acquired for the said purpose; that on the basis of Annex. N attached with the rejoinder that Kanal Park is situated in-between Gulberg I and IL The land in question is situated in-between two which is not part of any scheme; that petitioners are bona fide purchaser and allottee of the land in question from the Settlement Department and the respondents have no authority whatsoever to interfere in their title, enjoyment and possession that action of respondents is without lawful authority.
3. The learned counsel for the respondent submits that land in question was acquired by the Improvement Trust predecessor-in-interest of respondents and possession was also taken as is evident from Annex. R/2, dated 2-10-1951. The land in question is vested with the respondents automatically by virtue of section 16 of Land Acquisition Act, 1894 without any incumberance; that petitioners did not approach this Court with clean hands; that this Court has no jurisdiction to resolve the disputed question of fact in Constitutional jurisdiction; that predecessor-in-interest of petitioner had filed a suit against respondents and had withdrawn the same without permission to file fresh one, therefore, writ petition is not maintainable by virtue of Order 23 Rule 1, C.P.C.; that order of Deputy Settlement Commissioner is without lawful authority and should be ignored as the land in question was out of compensation pool the moment the same was acquired by the competent authority under the provisions of Land Acquisition Act. He relied upon unreported judgment in R.S.A. No,35/1984 titled Shah Muhammad v. L.D.A., decided on 23-4-2001
4. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. It is admitted fact that petitioners filed suit for permanent injunction against respondents on 2-12-1978 and predecessor-in-interest of petitioner had withdrawn the same on 23-1-1979 as is evident from Annex. F attached with the writ petition. The predecessor-in-interest of petitioner had withdrawn the earlier suit without permission to file fresh one. It is settled principle of law that principles of C.P.C. Are also applicable in the proceedings arising out of Constitutional petition as the law laid down in Hussain Bakhsh's case (PLD 1970 SC 1). It is settled principle of law that earlier suit on the same subject-matter having been withdrawn without seeking permission to file fresh suit on the same subject-matter and subsequent suit on the same subject-matter is neither competent nor maintainable. Addition of new party or non-impleading of any previous party would not change complexion, nature and subject-matter of suit when suit is related to same subject-matter and is based on some same cause of action as the law laid down in: (1997 M LD 2964) Mst. Bibi Gul and another's case The order, dated 23-1-1979 clearly reveals that predecessor-in-interest of petitioner had withdrawn his suit simpliciter. It is settled principle of law that where a case was withdrawn simpliciter, a second action on the same subject-matter was barred. In arriving to this conclusion I am fortified by Mehroof Jan's case (1990 CLC 19). It is admitted fact that predecessor-in-interest of petitioner had filed suit and subsequently withdrawn the same simpliciter, therefore, this writ petition is not maintainable by virtue of Order 2, Rule 1(3)
Order 23, Rule 2 read with section 11, C.P.C. The principle of constructive res judicata is also attracted in the present case. I am fortified by the law laid by this Court in 1989 CLC 2393, Jewan's case.
'In view of what has been discussed above, there is no merit in this writ petition and the same is dismissed, with no order as to costs.