ABDUL HAMEED DOGAR, J.---Petitioner Ch. Riaz Ahmad Khan, seeks leave to appeal against the order dated 6th February, 2002 passed by the learned Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi in R.F.A. No,156 of 2001 whereby the same was dismissed.
2. The facts leading to the filing of the instant petition are that in 1981 Shah Nawaz Khan father of the petitioner tiled a suit bearing No,190/87 of 1982-88 in the Court of Civil Judge, Chakwal against Brig.
Muhammad Asghar Khan etc. For declaration to the effect that he was owner of 1/3rd of the land measuring 104 Kanals and 5 Marlas, comprised of Khasra Nos.2798, 2799, 2778 min, 2778 min, 2778 min. 2778 min, 2781 and 2795 situated in Mauza Chakwal and occupied the whole of suit land as the share holder and that as such possession should not be disturbed till partition of the land be made.
It was stated in the plaint that the said land was owned and possessed by one Noor Khan, the grandfather of the plaintiff Shah Nawaz Khan and after his death 1/3rd share devolved upon him by inheritance. According to him one Khan Bahadur Fazal Dad Khan was given transferee rights under section 5(10) of Tenancy Act, therefore, neither Khan Bahadur Fazal Dad Khan nor his legal heirs including defendants Brig. Muhammad Asghar Khan etc. Had ever been in possession of suit-land nor they ever paid any amount to the plaintiff Shah Nawaz Khan or their shareholders. Even at the time of promulgation of Tenancy Act 1952. The predecessors-in-interest of said Khan Bahadur Fazal Dad Khan were neither in possession of the suit-land nor they paid any amount to the plaintiff so the defendants had extinct the rights towards the land in dispute under section 38 of the Tenancy Act and they were not tenant. However in spite of that they had got mutation of ownership in their names without any legal right which was legally ineffective qua the right of plaintiff Shah Nawaz etc. And thus entitled to declaration sought by him.
3. The suit was contested by the defendants the predecessor-in-interest of the present respondent by filing a separate written statement. According to them the suit land originally did not belong to Noor Khan but some other persons were its owners. Even the tenant of the property in dispute was someone else, and that Fazal Dad Khan the father of the defendants 1 to 3 had purchased the rights in land and after enactment of Tenancy Act the said Fazal Dad Khan became exclusive owner of the said land by depositing the compensation, whereas rest of the owners merely remained the shareholder. It was, denied that Ghulam Muhammad father of the plaintiff Shah Nawaz Khan or Muhammad Nawaz his brother, have any concern with suit-land or they were in occupation of the suit-land as owner. After framing of the issues and recording evidence the learned Civil Judge, Chakwal dismissed the suit on 20-11-1988. The appeal also met the same fate and findings of the trial Court were upheld by the learned District Judge, Chakwal, vide judgment dated 21-2-1993.
4. The said Shah Nawaz Khan assailed the judgment of the learned District Judge before the Lahore High Court, by invoking its revisional jurisdiction which also did not bear fruit and Civil Revision No,256 of 1993 was dismissed vide order dated 9-12-1998.
5. The said Shah Nawaz Khan father of the petitioner died in the year. 1989, whereafter petitioner Ch. Muhammad Riaz stepped into the shoes of his father and tiled C.P.L.A. No,289 of 1999 against the above order dated 9-12-1998 of the High Court which was also dismissed by this Court on 25-2- 1999.
6. While the litigation of Shah Nawaz Khan was pending adjudication the petitioner brought a Civil Suit bearing No,624/69 of 1981-1989 for declaration to the effect that he was the owner of the property through' adverse possession of land measuring 104 Kanals, 5 Marlas, comprising of the above mentioned Khasra. In this suit the petitioner contended and prayed for consequential relief that the defendants/respondents be restrained from interfering in his peaceful possession of the suit-land and also that he may not be termed as their tenant. The aforementioned suit was dismissed. He preferred Appeal No,395/118 of 1991 Which was also dismissed by learned District Judge, Chakwal on 21-2-1993. The said judgment was impugned in Civil Revision No,214 of 1995 before the learned Lahore High Court, Rawalpindi Bench, Rawalpindi, which too was dismissed on 9-12-1998 on the ground of limitation. This Court also turned down C.P.L.A. No,107 of 1999 and declined leave to appeal vide order dated 7-5-1999.
7. In the year-1981 the respondents filed suit for ejectment of the petitioner on the ground that he was tenant-at-will of the respondents. The learned Collector, Chakwal allowed the same and ordered his ejectment vide order dated 26-12-1983.
8. That the appeal and the revision against the above mentioned order were dismissed by Additional Commissioner Revenue and Board.Of Revenue, Rawalpindi Division respectively which orders were assailed in Writ Petition No,558 of 1984 before the learned Lahore High Court, Rawalpindi Bench which was dismissed in limine on 27-11-1984.
9. The petitioner did not keep silent but continued his litigation and appeared with another Suit No,207 of 1999 on 7-12-1999 wherein he sought for the declaration of ownership rights to the extent of 2/3rd share in the property on the basis of inheritance and certain purchases and old Revenue Record pertaining to the year 1898 and mutation of inheritance and transfer pertaining to year 1957 were assailed. The respondents resisted the suit in their respective written statements and claimed that the suit was barred by law as the matter had already been adjudicated upon several times.
10. During the pendency of the suit the respondents filed an application under Order VII, rule 11, C.P.C. For rejection of the plaint on the ground that the same being hit by the principle of res judicata and is thus barred by law. Accordingly the application was allowed and plaint was rejected by the trial Court on 30-5-2001. The petitioner assailed the said order in the appeal before the learned Lahore High Court, Rawalpindi Bench, Rawalpindi in R.F.A. No,156 of 2001 which resulted in dismissal vide judgment dated 6-2-2002. -
11. We have heard Mr. Abdul Karim Khan Kundi,- learned Advocate Supreme Court on behalf of the petitioner and have gone through the record and the proceedings of the case in minute particulars.
12. Mr. Abdul Karim Khan Kundi at the very outset contended that the instant suit is based on quite different claim which was never the matter in issue in any previous suit thus it was not barred by law and would not be hit by the principle of res judicata. According to him, the learned Courts below have completely overlooked the fact that the claim of 2/3rd share of ownership of the property was based on the basis of sale made in his favour through sale-deeds by their co-sharer.
It was also not considered below that Shah Nawaz Khan the father of petitioner had simply sought declaration of the ownership to the extent of 1/3rd share in the aforesaid properties in the previous suit whereas in the instant suit the petitioner claimed ownership to the extent of 2/3rd share in his own personal right based on sale-deeds mentioned above. In support he placed reliance on the cases Ali Ahmad v. Mst. Ghulam Zohra (PLD 1987 Quetta 189) and Haji Allah Bakhsh v. Abdul Rehman and others (1995 SCMK 459).
13. There is no denial to the fact that the petitioner and his father Shah Nawaz Khan had filed successive suits since 1981 against respondents claiming ownership in the disputed property but could not succeed and failed. Admittedly the parties as well as the property were same in all the above mentioned suits, thus there is no exception to the findings arrived at by the Courts below that the instant litigation was third in number and the petitioner having failed to succeed in the earlier rounds attempted to succeed through the third round of litigation, thus rightly rejected the plaint under Order VII, Rule 11, C.P.C.
14. Above all, the petitioner was declared as tenant of respondents by the Revenue hierarchy who directed his ejectment from the suit-land which attained finality, as the said decisions were maintained by the High Court in its Constitutional jurisdiction.
15. Learned counsel for the petitioner though argued at length yet could not refer to any irregularity in the impugned judgment. It has also been rightly held by the forums below that the matter directly or substantially in issue in the subsequent suits as well as in the instant suit was the same and thus clearly hit by the provisions of section 11 of the C.P.C. And was barred by law.
16. The case-law referred supra is, on different facts and circumstances thus has no bearing on the case of the petitioner. Accordingly the impugned judgment is maintained and the petition is dismissed and leave to appeal is refused.