1. JUDGMENT CH. IJAZ AHMAD, J.~ I intend to decide W.P. Na 1777/1997 and C.R. No. 719/1998 by one consolidated judgment having similar facts arid law.
2. The brief facts out of which the aforesaid writ petition and revision petition arise are that Taj AN son of Maula Bakhsh was owner of agricultural land in Mauzas Niesy and Changhri Tehsil Thanseer District Karnal. The original owner died issueless in India before partition and the property in question devolved upon his widow Mst. Janat Bibi. Mst. Janat Bibi migrated to Pakistan. She filed claim No. 1639 qua the land of the original owner situated in Village Niesy. She was allotted land measuring 85 Kanals in Village Lalupura Tehsil and District Gujranwala. She also filed claim No. 1828 qua the land situated in aforesaid village Changhri. She was allotted land measuring 113 kanals in Mauza Noushky Tehsil arid District Gujranwala. The aforesaid land was allotted in favour of Mst.
2. Janat Bibi on the ground that she was full owner of the land in question .After the death of her husband Taj Ali. Subsequently on 28.10.1963 mutation No. 3 was sanctioned under Act V of 1962 in favour of respondent No. 2 and predecessor-in-interest of respondents Nos. 3 to 7 in the aforesaid writ petition as reversionaries of Taj Ali deceased husband of Mst. Janat Bibi treating the land secured by Mst. Janat Bibi to be the life estate.. Mst. Janat Bibi being aggrieved filed appeal before the Collector Gujranwala which was accepted vide order dated Mohammad Saleemullah V, Addl. Distt. Judge C.C. 351 #tbs [Vol.XXI #to (Ch- ljaz Ahmad, J.)
3. 8.6.1965. Respondent No. , 2 and predecessor-in-interest of respondents Nos. .3 to 7 being aggrieved preferred appeal before Additional Commissioner Lahore Division who accepted the same and the case was remanded for fresh decision. After remand the Revenue Officer maintained his earlier order to the extent that Mst Janat-Bibi had full ownership of the land in question. The ator. Tin. Respondents in the writ petition being aggrieved filed appeal before the Additional Commissioner Lahore Division, Lahore who dismissed the same vide order date'd 10.1.1969. Respondent No. 2 and predecessor-in-interest of respondents Nos. 3 to 7 being aggrieved filed revision petition before the; Member Board of Revenue who dismissed the same vide order dated TO. 11.1970. The predecessor-in-interest of respondents Nos. 2 and 3 being aggrieved filed W.P. No. 20 of 1972 which was accepted by this Court vide judgment dated 9,12.1992. The present petitioners being aggrieved filed C.P. No. 135-L of* 1993 and 137-L of 1993 before the Honourable Supreme Court which was refused vide order dated 7.5.1994. During the pendency of the aforesaid litigation Mst. Janat Bibi gifted away the land in question in favour of her nephews and niece'namely M/s. Muhammad Jamil and Muhammad Khalil sons Of Abdul Latif and Easa daughter of Abdul Latif vide Mutation No. 53 which was sanctioned by Revenue Officer on 11.6.1968. The donees had taken the possession of the land in question. Mst. Janat Bibi died on 18.6.1971. The aforesaid donees sold the land in question measuring 85 kanals. 4 Marlas situated in Mauza Lalupura vide registered sale-deed No. 529, dated 17.5.1989 for consideration erf Rs.250,000/- to the petitioners in writ petition. The petitioners had spent an amount of Rs.750,000/- on improvement by installing tube well etc. On the land in question. The petitioners filed C.M. No. 1916/89 for being impleaded as party in W.P. No. 20/72 in the earlier round of litigation which was dismissed while deciding the main writ petition. This Court in judgment dated 9.12.1992 in W.P. No. 20/72 held that.
4. Mst. Janat Bibi was not full owner of the land in question. She was only owner of 1/4th and respondents Nos. 2 and 3 to 7 are owners of the remaining land in their capacity as collaterals of her deceased husband. Mutation No. 320 was sanctioned on 9.6.1994 by the Revenue Officer in terms of aforesaid judgment of this Court as well as that of Honourable Supreme Court. The petitioners being aggrieved filed a suit for declaration on the ground that the petitioners are bona fide purchasers, therefore, mutation No. 32Q, dated 9.6.1994 in favour of respondents Nos. 1 to 7 is against Icivy, without jurisdiction and not effective against the rights of the petitioners, .And respondents Nos. 1 to 7 have no concern whatsoever with the land in question. They alleged that Taj All had no collateral left behind therefore, respondents Nos. 1 to 7 had procured the mutation by misrepresentation. The respondents also filed written statement. Respondents Nos. 2, 3, 5 and 6 filed an application under Order VII, Rule 11, CPC for rejection of the plaint on the ground that matter has been finally decided between the parties up to the apex Court on the well-known principle of res judicata. The application was rejected by the learned Trial Court i.e. The Civil Judge Gujranwala. The respondents in the writ petition being aggrieved filed appeal before the Additional District Judge who accepted the same vide judgment and decree dated 15.12.1996. Hence the present writ petition.
2. The petitioners in revision petition also filed a suit for declaration before the Civil Judge against the respondents. The respondents filed an application under Order VII, Rule 11, CPC which was accepted by the learned Civil Judge vide order dated 18.11.1997. The "petitioners being aggrieved filed appeal before the Additional. District Judge who also .Dismissed the same vide judgment and decree dated 1.4.1998. Hence the present revision petition.
5. 3.. Mr. S.M. Masood, Advocate learned counsel of the petitioners in writ petition submits that in the earlier round of litigation the only question involved was as to whether Janat Bibi was a limited owner or not and it was finally resolved up to the Honourable Supreme Court. Whereas in the present litigation the point in issue was as to whether opposite party was the collaterals of Taj Ali or not and this question had to be independently resolved after recording of evidence. He further submits that lower Appellate Court was erred in law to reject the plaint of the suit by observing that it was hit by principle of res judicata. He further submits that petitioners filed C.M. No. 1916/89 before this Court in W.Ffc No. 20/72 which was rejected by the learned Single Judge alongwith the main writ petition vide judgment dated 9.12.1992 Therefore' judgment of this Court as well as of the Honourable a [Vol.XX! Muhammad Saleemullah V. Addl. Distt.- Judge #tbs C.C. 353 #to (Ch. Tjaz.Ahmad, J.)
6. Supreme Court is not binding upon the petitioners. This fact was not considered by the first Appellate Court at the time of deciding the controversy between the parties, In support of his contention he relied upon Kh. Muhammad Yousaf v. Federal Government (1999 Law Notes 792). He further submits that question of law was not directly in issue. Therefore, principle of res judicata is not attracted. He further submits that respondents Nos. 2 to 7 were guilty of misrepresentation and based their claim which does not determine their entitlement as is evident from "Shajra Nasab" which was attached by respondents Nos. 2 to 7 before this Court in the earlier round of litigation a Annexure-K and later on withdrawn. Therefore, respondents Nos. 2 to 7 are not entitled to such inheritance of Taj AIL He further submits that sole question for determination before this Court in earlier round of litigation was whether Mst. Janat Bibi was holding the estate as limited owner and other controversy was not in issue, therefore, suit filed by the petitioners was competent and the learned Trial Court was justified to dismiss the application 'of the'respondents under Order VII, Rule 1 T, CPC whereas the revisional'Court was erred in law to accept the application of the respondents and rejected the plaint of the petitioners, In support of his, contention he relied upon Sardar Muhammad v. Faqir Muhammad (1996 CLC 916). He further submits that respondents filed C.M. No. 2856/1992 in W.P. No. 20/72 with the prayer to summon the record but subsequently the same had been withdrawn by them as is evident from orders dated 30.1.1992 and 29.11.1992 which are attached as Annexure-L and Annexure L/1 alongwith this writ petition. The respondents had placed on record various documents in the earlier round of litigation in W.P. No. 20/72 but subsequently had withdrawn the' said documents which clearly envisaged that respondents are not collaterals of Taj Ali. He. Summed up his arguments that in the earlier round of litigation it was not determined by any Court who were/are collaterals of Taj Ali original owner, In support of his contention he relied upon following judgments:-
(1) Kala Chand Banerji v. Jaganath Marvari and another (AIR 1927 Privy Council 108):
(2) Mir Suhhan Ali v. Imami Begum (AIR 1925 P.C- 1 84);
(3) Sultan Mahmood v. Ahmad Khan (AIR 1 933 Lah. 101 6).
7. He further submits that in earlier round of litigation question of collaterals qua the original owner was not directly m issue therefore, principle of res judicata is not attracted and revisional Court wrongly rejected the plaint of the petitioners without adverting to the law laid down by the superior Courts in the following judgments:- -
(1) Govt, of Pakistan v. Aquail Ahmad (PLD 1969 Dacca 930);
(2) Mst. Kaniz Fatima v. MBR (PLD 1973 Lah. 495).
8. He further submits that petitioners are bona fide purchasers and purchased the land in question.
9. Therefore, principle of res judicata qua the petitioners is not attracted, In support he relied upon the following judgments:-
(1) Ghafoor Bakhsh v. Haji Muharhmad Sultan (2001 SCM R 398); 4
(2) Province of Punjab v. Malik Ibrahim (2000 SCM R 1172) = (2O0O PSC/CI. 947).
10. Syed Zain-ul-Abidin, Advocate in connected revision petition submits that collaterals of original owner was not the issue in the earlier round of litigation. Therefore, both the Courts below were .
11. Erred in law to reject the plaint of the petitioners in violation of law laid down by the superior Courts, In support of his contention he relied upon Sufi Dilawar Hussain Chishti's case (1990 SCM R 705), He further submits that question as to who were the collaterals of original owner was not determined by any Court in the earlier round of litigation. Therefore, both the Courts below were erred in law to reject the plaint of the petitioners on the principle of res judicata. The issue in question was not finally determined and decided by the Courts in the earlier round of litigation. Therefore, judgments of both the Courts below are not sustainable in the eyes of law and are in violation of the law laid down by the superior Courts In support of his contention he relied upon Sardar Muhammad v. Faqir Muhammad f1996 CLC 916). He further urges that original owners had no issue and had not left any collateral. Therefore, land in question automatically reverted to Mst. Janat Bibi limited owner in view of Section 5 of the West Pakistan Muslim Shariat Act, 1962. In support of his contention he relied upon Nawab Din v. Mst. Jewani (1990 M LD 725). He further submits that mere passing of observations in the judgments of superior Courts in earlier round of litigation are not finai between the parties therefore, principle of res judicata is not attracted in the present case, In support of his contention he relied upon Malik Muhammad Sarfraz Khan Tiwana, Advocate v.
12. Settlement Commissioner (PLD 1 989 S.C. 580).
4. Mr. C.M. Latif Rawa, learned counsel of the respondents in both the aforesaid petitions submits that case has been finally decided by this Court in the earlier round of litigation as is evident from the finding of para 5 in which it was cieariy held that Mst. Janat Bibi widow of the original owner was entitled-to" 1/4th of the land in question and the remaining 3/4th to the petitioners (respondents Nos. 2 to 7 in writ petition) in their capacity as collaterals of her deceased husband, should hold the field. Therefore, both the Courts below were justified to reject the suits of the petitioners on the well-known principle of res judicata. He further submits that judgments of the Courts below are in accordance with the law laid down by the superior Court's.
5. I have given my anxious consideration to the contentions of the (earned counsel of the parties and perused the record myseif.
6. It is better and appropriate to reproduce the operative part of-the judgment of this Court dated 9.12.1992 in W.P. No. 20/72 to resolve the controversy, between the parties:- .
13. To resolve the controversy between the parties:- "6. The writ petition was ultimately allowed vide impugned judgment dated 9..12.1992, wherein Mst.
14. Janat Bibi was held to be. Limited .Owner and the collaterals of Taj Ali, her husband entitled to 3/4th share of the land. Hence this petition for leave to appeal.
8. Undoubtedly Muhammad Jamil one of the donee/vendors in his statement before the High Court admitted that Taj Ali was the original owner of the land. He died in India. On his death as per custom, the land was mutated in the name of Mst. Jannat Bibi as his widow. The learned High Court Judge, was, therefore, right to hold Mst. Jannat Bibi as holder of limited interest in the property. She inherited 1 /4th share of the land as widow and the rest of the property developed upon the Collaterals of the last male owner, it is not denied that the vendees purchased the land, in dispute, during the pendency of Writ Petition, the principle of lis pendens was, therefore, correctly applied in the matter."
15. Now I intend to discuss the judgments relied upon by the learned counsel of the petitioners. Malik.
16. Ibrahim's case (2000 SCM R 1172) has laid down guidelines qua the. Application of principle of res judicata which are reproduced hereunder:- "In order to attract the principle of res judicata following five conditions must be complied with:-
(1) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit.
(2) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim.
(3) The-parties as aforesaid must have litigated under the same title in the former suit.
(4) The Court which decided the former suit must have [Vol.XXI Muhammad Saleemullah-V. Addl. Distt. Judge C.C. 3o7 (Ch. Ljaz Ahmad, J.j been a Court competent to try the subsequent suit , in which such issue is subsequently raised.
(5) The matter directly and substantially in issue in the subsequeht suit must have been heard and finally decide by the Court in the first suit.
17. The relevant observations in Ghafoor Bakhsh's case (2O0O SCMR 398) are as follows:- "Mere fact that the evacuee laws were repealed or that the learned Single Judge dismissed Writ Petition No. 439-R of 1981 on the legal ground without finally deciding the pleas raised before him leaving the same open to be decided by Civil Court, would itself be no ground for rejection of the plaint as the same are not envisaged under Rule 11 of Order VII, C.P.C."
18. The observations in Sardar Muhammad's case (1996 CLC 916) are asunder:- . .
19. "Judged from the above angle, I have'no hesitation in coming to the conclusion that the question regarding the execution of Will was neither actually nor constructively in issue before High court in Writ Petition No. 806/66 and also before Supreme Court in C.A. No. 157/81, and so it can be safely said that this question was not finally decided by the High Court as well as by the Supreme Court within the terms of principles of res judicata."
20. In Kaniz Fatima's case (PLD 1973-Lah. 495) following are the relevant observations:- "Order VII, rule 11(d) authorise the rejection of a plaint ' where a suit appears from the statement'in the plaint to be barred by any law. Since the fresh suit can be filed after the rejection of plaint, the principles of res judicata is manifestly not applicable as there is no adjudication in a case where plaint is rejected."-- The principle of res judicata cannot be pressed into service unless the matter had been heard and finally decided."
21. In Aquai! Ahmad's case (PLD 1969 Dacca 930) the relevant observations are as follows:- "it is true that res judicata may be pleaded even when cause of action is different in certain circumstances, but such a plea would be of no avail unless such cause of action was directly in issue in the previous suit."
22. In Sultan Mahmoud's case (AIR 1993 Lah. 1016(1)) following are relevant observations:- "The question whether the plaintiff is an owner or not has never been decided and this is the only way in which it can be decided. I do not see the bearing of Section 50- A as this is not a suit of the class contemplated by that section, I therefore, accept the 'appeal."
23. In Malik Sarfraz Khan Tiwana's case (PLD 1989 S.C. 580) the relevant observations are as Tollows:- "The transfer of the disputed house to Saleh Ahmad springs from the entitlement created by the High Court by its observation which had no legal validity as it was not in accordance with the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958."
24. In Mir Suhhan AH's case (AIR 1925 Privy Council 184) following are the relevant observations:- "In a subsequent suit that the question of partition was not res judicata, but the Court added a declaration to the decree by which decree-holder could execute the decree without resorting to a suit for share of yearly profits."
25. In Kalachand Benerjee's case (AIR 1927 Privy Council 108) following observations are relevant:- "A person who applied .To be. Made a party but was refused is not bound by the decision in the suit."
26. The relevant portion in Kh. Muhammad Yousaf's case (1999 Levy Notes (S.C.) 792) is as follows:- "If this Court merely reaffirms a judgment or order of High Court by refusing leave the final judgment in terms of sub-section (2) of Section 12, CPC will be.Of the High jVol.XX! Muhammad Saleemullah V. Addl. Distt. Judge C.C. 359 (Ch. Ljaz Ahmad, J.i Court -and records a finding on question of fact or law contrary, to what was held by the High Court in that even the final judgment or order would be of the Supreme Court for the purpose of sub-section (2) of Section 12, CPC in this view of the matter, the final judgment the case in hand was, of the High Court as it reversed the finding recorded by the forums provided under the Settlement law." . .
27. Mere reading the aforesaid finding in the earlier round of litigation and the principles laid down by the superior Courts in the aforesaid judgments do not support the case of the petitioners. This Court has given positive finding against the petitioners and in favour of the respondents. Therefore, Courts below were justified to reject the plaints of the petitioners in view of Section 11 of CPC. In arriving to this conclusion I am fortified by the following judgments:-
(1) Abdul Majeed and others v. Abdul Ghafoor Khan (PLD 1982 S.C. 146).
(2) Asif Jan Siddiqul v. Govt, of Sindh (PLD 1983 S.C. 46).
(3) Ch. Rehmat Ellahi v. Haji Jan Muhammad (1993 SCMR 1109). > (4) Nazar Ahmad v. Abdullah and others (197 SCMR 281).
28. There is no doubt that petitioners in writ petition filed an application before this Court in W.P. No. 20/72 which was rejected by this Court. The petitioners being aggrieved filed petition before the Honourable Supreme'Court which was rejected in the aforesaid judgment, In this view of the matter the contention that the petitioners filed application before the High Court to become a party was rejected therefore, judgment of this Court is not binding upon the petitioners has no force, it is also admitted fact that petitioners purchased the land in question from the donees to whom Mst.
29. Jannat Bibi had gifted the land in question. Therefore, principle of /is pendens is applicable in all respects as the petitioners purchased the land in question during the pendency of litigation. Even otherwise the petitioners fall under the footprints of the donees, In case the donees failed up to the level of Honourable Apex Court and subsequently their suit for declaration was rejected by the Trial Court as well as by the first Appellate Court, therefore, principle of bona fide purchaser is not attracted in the present case in view of'special circumstances of this case, In the earlier round of litigation-this Court has declared respondents Nos. 2 to 7 positively as collaterals of original owner.
30. Therefore, Courts below were justified to reject the plaintiffs of the petitioners, In view- of the aforesaid findings the widow was only entitled 1/4th share. Therefore, judgment of Dost Muhammad's case (1 995 SGMR 1014) does not support the case of the petitioners. The judgment relied upon by the learned counsel of the petitioners in Sufi Dilawar Hussain Chishti's case. (1990 SCM R 705) is distinguished on facts and law and has no relevance to resolve the present controversy. As mentioned above, in the earlier round of litigation this Court has positively decided that respondents'Nos. 2 to 7 are collaterals of original owner therefore, in this view of the matter the judgment relied upon by the learned counsel of the petitioners (1990 M LD 725) Nawab Din's case has also no relevance and does not support the case of the petitioners. It is pertinent to mention here that petitioners in the revision petition did not bring on record all the cards therefore, principle of constructive res judicata is attracted in all respects, in arriving to this conclusion I am fortified by the following judgments:-
(1) Pri Bakhsh v. Chairman Allotment Committee (PLD 1987 S.C. 145).
(2) Nazir Ahmad v. Abdullah (1997 SGMR 281).
31. It is settled principle of law that constitution petition/revisjon petition are discretionary in nature.
32. Since substantial justice has been done between the parties in view of the long standing litigation between the parties I am not inclined to exercise my discretion in favour of the petitioners as per principle laid down by the Honourable Supreme Court in Nawabzada Raunaq Ali's case (PLD 1973 S.C. 236).
33. In view of what has been discussed above, the writ petition and revision petition have no merits and the same are dismissed. .