PLJ 1996 Peshawar 320
Present: JALALUDDIN AKBARJI,
J.
Sahibzada MUHAMMAD SALIM and another-Petitioners
versus
Mst. BIBI ZUHRA and
others-Respondents Civil Revision No. 523 of 1987, decided on 18th April 1996.
Civil Procedure Code, 1908 (V of 1908)--
—O. II, R. 2 S. 11-Constructive res judicata~Matt,er of inheritance from plaintiff's deceased father was directly and substantially in issue in the former suit between the same parties and decided-Plaintiff omitted devolution of property in respect of present land in former suit and thus relinquished her share, therefore, in view of explanation iv of S. 11 and O.II, R. 2 CPC suit is neither competent nor can be decided-Contention of-Held : Principle of res judicata precludes piecemeal litigation and hardship and inconvenience resulting from repeated litigation on the same cause of action are checked-Bar contained in law for seeking remedy for any legal right under O.II R. 2 and S. 11 CPC was for purpose of peace and repose in enjoyment of property by parties whose right in property have been once settled by courts of law and no decree would be granted for disturbing the same-Cause of action in earlier suit and in subsequent suit being in effect the same judgments and decrees of courtsbelow decreeing plaintiff's suit, were set aside and plaintiffs suit wasdismissed being hit by principle of resjudicata. [P. 326] A
Abdus Sattar Khan, Advocate for Petitioners. Muhammad Aman Khan, Advocate for Respondents. Date of hearing: 18.4.1996.
judgment
Mst. Zuhra, daughter of Muhammad Tahir and widow of Muhammad Hassan instituted on 19.6.1974 suit against Abdul Karim and others for declaration that she alongwith defendants 3 to 6 is owner in possession of land bearing Khasra Nos. 3065/2325, 2650, 3551/2599/1, 2881/1694/2, 2882/1696/5, 1543, 2117, 2978/2118, 2979/2118, 1540, 2596, 3376/2756, 1541, 1542, situate in the revenue estate of village Mashogagar, Tehsil and District Peshawar, according to Record of Rights 1968-69 and that the Revenue Record wherein her share and that of defendants 3 to 6 have been shown 72 shares out of 288 shares is illegal and ineffective upon her rights and the Revenue Record are liable to be corrected accordingly; in the alterative suit for possession of the land in dispute. Abdul Karim, defendant No. 1 (now deceased through his sons Sahibzada Muhammad Saleem and Sahibzada Sirajur Rehman, petitioners herein) contested the suit. In Preliminary Objections it was stated that the suit under Order 2, Rule 2 read with section 11, C.P.C. is not competent and in para. 4 of the written statement it was alleged that in an earlier suit instituted by Mst. Zuhra the matter has been settled and decided between the parties. Amongst other issues the following relevant issue was framed:-
"Issue No. 3: Whether the suit is not maintainable under section 11 and Order, 2, Rule 2, C.P.C.?"The learned Judge of the trial Court by judgment dated 29.6.1986 decreed the suit and appeal of the petitioners was also dismissed on 7.9.1987. Both the Courts below have held that earlier suit was in connection with inheritance mutation of Muhammad Tahir deceased (father of Mst. Zuhra) in respect of some other property and not the land which is now in dispute between the parties. Hence petition for revision.
2. Mst. Zuhra filed on 7.7.1960 (Suit No. 67/1 of 1960) against Abdul Karim and others for declaration that she is owner in possession of 1/2 share and defendants 1 to 8-1/2 share in the legacy of her deceased father Muhammad Tahir and that Mutation No. 377 attested on 9.12.1936 in connection with inheritance due to Nikah and entires in the Revenue Record due to Mutation No. 377 are illegal and ineffective upon her rights in respect of land measuring 86 Kanals, 12 marks bearing Khasra Nos. 143, 144, 148,land in dispute is Shamilat land of the revenue estate and partition Mutation No. 1370 was attested on 1.4.1962 wherein Mst. Zuhra was recorded owner of the property to the extent of her share except the share claimed by her from her deceased father Muhammad Tahir. The suit as such will not be within time. Learned counsel for Mst. Zuhra vehemently contended that the cause of action in both the suits is separate and distinct. The cause of action in the earlier suit was in respect of specific land wherein she was deprived of her share from her deceased father because of Nikah. Mst. Zuhra was the only daughter of Muhammad Tahir deceased and was holding the sit land customarily during the custom and on entering into Nikah with Muhammad Hassan she was provided of her share in the suit property contrary to Sharia. The cause of action in the instant suit is only in connection with correction of the Revenue Record in respect of the suit land wherein her share from her deceased father Muhammad Tahir has not been incorporated in the Revenue Record. The Revenue Record neither confess title nor truly reflects the shareholding of each co-owner and it is only a decree of the Court which can correct the same. Mst. Zuhra is co-owner with the contesting respondents and, therefore, each entry in the Revenue Record will give fresh cause of action and the question of limitation will not apply in the case, it was lastly vehemently urged that both Courts have concurrently held that Mst. Zuhra is entitled to her share of the property from her deceased father Muhammad Tahir and, therefore, need not be disturbed in the revisional jurisdiction of this Court. The Revenue Record no where mentions that Mst. Zuhra is not entitled to the said share and, therefore, in the circumstances of the case both the Courts below have correctly decreed the correction of the Revenue Record. It was repeatedly urged that neither section 11, nor Order 2, Rule 2, C.P.C. is attracted to the case in hand. Reliance was placed on judgment, "Mst. Saeeda Akhtar and others v. Lai Din and others PLD 1981 Lahore 623, Abdul Hakeem and 2 others v. Saadullah and 2 others PLD 1970 SC63.
5. In the case of Aziz Ahmad and
others while enunciating the dictum on Order 2, Rule 2, C.P.C., the August
Supreme Court of Pakistan held as under: -"It was then argued by the learned
counsel that the causes of action in the two suits were different as the suit filed
at Bahawalpur
was in respect of the property situate in Bahawalpur alone whereas the suit instituted
at Faisalabad covered properties both at Bahawalpur and Faisalabad;
consequently, the dismissal of the first suit could not have any effect on the
second suit. This contention is again without any merit. The causes of action in
the two suitswere precisely the same, that is, the wrongful allocation of a share in the property
left by Sultan Muhammad to respondent No. 2. The mere fact that in the first suit
the appellants
did not seek relief in respect of the property at Faisalabad would not
make the cause of action in the second suit a different one. In fact by not seeking
any relief in respect of the
property situate in
In the case of Dilawar Khan and others leave was refused by applying the bar of constructive res judicata as also the provision of Order 2, Rule 2, C.P.C. even on the hypothesis of the case urged before the august Supreme Court of Pakistan.In the case of Allah Dad this Court held as under:-
"The learned counsel is oblivious of the principle of constructive res judicata as contained in Explanation IV to section 11, and of the other relevant provisions Order 2, Rule 2. In order to apply the bar of res judicata the test is whether the reliefs now claimed were available to him at the time of the institution of the first suit and whether these could have been asked for in that suit, because by force of the doctrine of constructive res judicata he was bound to have brought his wnoie claim to the Court, to have urged all the. grounds in his support available to him and to have sought all the reliefs he could seek at that time. This principle of constructive res judicata bars the trial in subsequent suit of all the matters which might and ought to have been alleged. In view of constructive res judicata a decision is final not only to the matters actually determined in the decision but also to the other matters which might and ought to have been agitated and could have been resolved in that decision. These reliefs which have now been added in the present suit are based on the same cause of action which prompted the plaintiff to institute the former suit and these being available at the time of filing the earlier suit could have been based on the same cause of action, but now a second suit cannot legally be sustained on the same cause of action even for the reliefs not claimed in the firstsuit. Because of this principle of constructive res judicata piecemeal litigation is precluded and the hardship and in conveniences resulting from repeated litigation on the same cause of action are checked. Moreover, under Order 2, Rule 1 the plaintiff-petitioner was required to have framed his earlier suit in a manner which should have helped final adjudication of the subject in dispute and under the provision, of Order 2, Rule 1 the entire claim to which a suitor is entitled shall be included in the suit and in case he omits to do so the Order 2, rule 2 dictates that such left up claim cannot form subject of the second suit. Therefore, under the provision of constructive res Judicata the plaintiff was not competent to file the present suit on the basis of same cause of action although on different grounds or for different reliefs and under Order 2, Rule 2 he is barred to include the left up Khasra No. 939 in the present suit. The learned Courts have, therefore, correctly non-suited the petitioner and maintain the said decision on this point."In the case of Abdul Hakim and 2 others, the August Supreme Court of Pakistan pointed out to a rough test and observed that a rough test, although not a conclusive one is to see whether the same evidence will sustain both suits which would be the case if both the suits are founded on continuous and inseparable incidents in the same transaction.
6. Muhammad Tahir was co-owner alongwith his brother Faiz Muhammad of land is situated in the revenue estate of village Mashogagar, Tehsil and District Peshawar including share in the Shamilat of the village. Muhammad Tahir died during custom and as he had no male issue, therefore, his property was held customarily by his only unmarried daughter Mst. Zuhra who contracted marriage (Nikah) with Muhammad Hassan, grandson of Faiz Muhammad and according to the custom of the area the property was transferred by Mutation No. 377 attested on 9.12.1936 to the legal heirs of Faiz Muhammad, brother of the deceased Muhammad Tahir. Mst. Zuhra challenged the transfer of property of Muhammad Tahir to the collaterals under custom and claimed Sharai share in the legacy of Muhammad Tahir, her father, by instituting Suit No. 67/1 of 1960 by mentioning specific Khasra numbers in the revenue estate of village Mashogagar, Tehsil and District Peshawar, but omitted the share in the legacy of her father Muhammad Tahir in the Shamilat land. Mst. Zuhra in substance claims her Sharai share in the legacy of her deceased father in the present case and as well in the Civil Suit No. 67/1 of 1960, decided on 6.6.1963. On this rough test the subsequent suit of Mst. Zuhra i.e. the present case is founded on continuous and inseparable incident i.e. that sheis entitled in the whole legacy of her deceased father according to Sharia. This the legal right on the same cause of action of Mst. Zuhra stand established but the remedy is barred under Order 2, Rule 2 read with section 11, C.P.C., as held by this Court 1990 CLC 33; that the principle of constructive resjudicata precludes piecemeal litigation and the hardship and inconveniences resulting from repeated litigation on the same cause of action are checked. The bar contained in law for seeking remedy for a legal right like in the instant case, under Order 2, Rule 2, C.P.C. read with section 11, C.P.C, is for purposes of peace and repose in enjoyment of the property by the parties whose rights in the property have been once settled by the Courts of law and no decree is to be granted for disturbing the same. In the judgment reported 1987 SCMR 527 it was held that cause of action in the two suits were precisely the same in the circumstances of the case as in the case in hand the causes of action in earlier Suits 67/1 of 1960 and in the case in hand are the same.Consequently, accepting this petition for revision the judgments and decrees dated 29.6.1986 and 7.9.1987 of the learned Civil Judge, Peshawar and District Judge, Peshawar, respectively are set aside and the suit of Mst. Zuhra is dismissed with no orders as to costs.
(S.R.) Revision dismissed.