PLJ 2009
Present: Ejaz Afzal Khan & Jehanzaib Rahim, JJ.
Mst. GUL PARI--Petitioner
versus
Haji MAQSOOD ELAHI and 3 others--Respondents
W.P. No. 282 of 2004, decided on 2.3.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11 r/w S. 11--Rejection of plaint on the
basis of principle of resjudicata--In previous round of litigation, before Rent
Controller the objection of (husband of petitioner) regarding non-existence of
tenancy relationship was rejected upto the Supreme Court--Now when execution of
the ejectment order was in progress, petitioner filed a suit for declaration on
the basis of a sale mutation by the respondent allegedly sanctioned in the year
1980--Held: As matter of title of (landlord) had been established/finalized
upto S.C. in the previous round of litigation, after considering their respective
pleas, it would therefore certainly operate as res judicata--Impugned order of
rejection of plaint was not open to any exception--Petition was dismissed. [P. ] A & B
2000 SCMR 1525, PLD 1992 K 270, 1983 SCMR 1064 & PLD
1985 SC 1, ref.
Mr. Afridi Khan, Advocate for Petitioner.
M/s. Abdur Rauf, Rohaila and Mohd. Shafi, Advocates for
Respondents.
Dates of hearing: 27.2.2007 and 1.3.2007.
Judgment
Haji Maqsood Elahi, Respondent No. 1 instituted a
petition before the learned Rent Controller Peshawar for the ejectment of Toor
Muhammad, Respondent No. 2 in respect of the suit shop. The latter resisted the
application by denying the existence of relationship of landlord and tenant
between him and the former. The learned Rent Controller after framing a preliminary
issue and recording evidence of the parties rejected the application, vide
order dated 26.2.1991. An appeal was preferred by Respondent No. 1 in the Court
of the learned District Judge Peshawar, which was allowed, vide order dated
9.3.1993. Respondent No. 2 preferred a writ petition in the High Court which
was dismissed, vide judgment dated 5.12.1994. Petition for leave to appeal was
preferred in the Apex Court by Respondent No. 2, which too met the same fate,
vide judgment dated 20.5.1996. In the meantime Mst. Gul Pari, petitioner herein
who is also wife of Respondent No. 2, instituted a suit for declaration on the
basis of Mutation No. 3638 attested on 9.10.1980. But when Respondent No. 1
filed an application for execution of the order ejecting Respondent No. 2, she
also resisted the execution by filing objections on the ground that she has
become owner of the property in dispute on the basis of the mutation mentioned
above. The learned Court executing the decree dismissed the application, vide order
dated 18.9.1999. She preferred an appeal there against which was also
dismissed, vide order dated 14.10.1999. Her revision in this Court was also
dismissed, vide judgment dated 28.2.2000. Respondent No. 1 then filed an
application for rejection of plaint in the suit instituted by the petitioner in
the Court of the learned Senior Civil Judge, but it was dismissed by the
learned Judge, vide order dated 19.5.1999. A revision against the aforesaid
order was filed in the Court of the learned Additional District Judge which was
allowed by the learned Judge, vide his judgment dated 22.6.2002 and
consequently the suit of the petitioner was dismissed. The petitioner filed a
writ petition in this Court, which was dismissed as withdrawn with the
permission to file a fresh. Hence this writ petition.
2. Learned counsel
appearing on behalf of the petitioner contended that the suit of the petitioner
on the basis of title was competent notwithstanding the verdict of the learned
District Judge in the earlier round of litigation, holding that the
relationship of landlord and tenant existed between respondents Nos. 1 and 2
was upheld upto the apex Court, as the learned Rent Controller and all the
forums functioning in the hierarchy could not have decided the question of title
as it exclusively lay within the competence of Civil Court. The learned counsel
to support his contention place reliance on the cases of Junaid Rashid and
others Vs. Sultan Muhammad and others (2000 SCMR 1525). The learned counsel
next submitted that even a finding on the objections filed by the petitioner
before the executing Court cannot operate as res judicata, even if, it is
upheld up to the High Court, when they were not disposed of in accordance with
the provisions of Rule 103 of Order XXI of the C.P.C. Learned counsel to
support his contention placed reliance on the case of Amiabai Vs. Ibrahim and 4
others (PLD 1992 Karachi 270).
3. As against
that, the learned counsel appearing on behalf of the respondent contended that
when the High Court and the Supreme Court while dealing with the controversy as
to the existence of relationship of landlord and tenant between respondents
Nos. 1 and 2 made in-depth examination of the entire record relating to the
title of the parties, the petitioner who is claiming title through the latter
and is his wife as well cannot be allowed to start afresh on the pretext that
the Rent Controller being a Court of limited jurisdiction could not have
decided the title of the parties. He next submitted that the finding given by
the Court executing the decree would also operate as bar to a fresh suit when
the Courts in that hierarchy including this Court discussed the merits of the
case with reference to the conduct of the petitioner. Learned counsel next
contended that it is also unbelievable that a wife would remain unaware of a
litigation carried on by her husband for a decade and a half, therefore, the
suit of the petitioner being collusive was rightly dismissed by the learned
revisional Court.
4. We have gone
through the record carefully and considered the submissions of the learned
counsel for the parties.
5. The record
reveals that Respondent No. 2, who happened to be the husband of the
petitioner, from the very inception denied the relationship of landlord and
tenant between him and Respondent No. 1. The learned trial Court after framing
a preliminary issue handed down a finding in his favour but that was reversed
by the Court of the District Judge. The finding of the District Judge, however,
remained undisturbed up to the Supreme Court. The petitioner then instituted a
suit on the basis of title, which also stood dismissed when a revision petition
filed by Respondent No. 1 was allowed by the learned District Judge. And
rightly so when it is not a case where the Court of the District Judge or this
Court including the Supreme Court in earlier round of litigation between
respondents No. 1 and 2 entertained any doubt about the title of the landlord.
This Court while dealing with this aspect in its judgment rendered in earlier
round held as under:--
"The case of the petitioner, on the other hand, is
that meters of suit gas and electricity have been installed in the name of the
petitioner. The evidence of Amanullah Khan (RW 6) is that, as a general
attorney of Muhammad Ali transferee of the land measuring 5 kanals, he had
alienated the disputed premises in favour of the petitioner by virtue of
Mutation No. 3391 sanctioned on 26.1.1978 after the notice under Section 30 of
the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was served
upon him and he had satisfied himself after seeing the RL-II. The claim of the
petitioner in nutshell is that he had raised the superstructure on the land
underneath the disputed premises. Ultimately when the petitioner came to know that
the land underneath the disputed premises being evacuee property had been
transferred to Muhammad Ali and further that he was selling it, the petitioner
purchased the land through a Court decree photo-copy Ex. RW.8/1 and then got it mutated in his
name. In the cross-examination, he had admitted the execution of the rent deed
photocopy Ex.AW.2/1 in favour of the respondent. The land underneath the
disputed premises is, however, not definitely shown to have been transferred to
Muhammad Ali transferor. The identification of the land underneath to be
forming part of Rhasra numbers entered in the Court decree has not been proved.
The superstructure of the disputed shops has been purchased by the respondent
from Pir Bakhsh on the basis of a registered deed while the land underneath it
has been purchased by him from Sher Muhammad also by virtue of a registered
deed photo copy Ex.PW.4/3."
6. In another
paragraph this Court held as under:--
"In these circumstances and admission of execution
of the rent deed by the petitioner in favour of the respondent and thereafter
having admittedly attorned to him, the learned District Judge had rightly
adjudged the respondent's claim to be the landlord on the basis of the
ownership of the property. The petitioner/tenant had thus not been able to
create `reasonable' doubt qua the claim of the respondent to be adjudged as
landlord/owner when the Rent Controller had failed to do so. The learned
appellate Court had done the same, which is permissible under two authorities
of the Supreme Court, namely, RehmatuIlah Vs. Ali Muhammad and another (1983
SCMR 1064) and Province of Punjab Vs. Mufti Abdul Ghani (PLD 1985 SC 1)"
7. The Hon'ble
Supreme Court while examining the judgment of the learned District Judge and
this Court held as under:
"We have heard the learned counsel for the
petitioner and the learned counsel appearing for the caveator and perused the
record. The ejectment of the petitioner was sought for by the respondent from
the suit "Saqawa" on the ground of default. It was alleged in the
petition for ejectment that he firstly purchased the super structure from the
person in possession of the suit premises and subsequently obtained the site
underneath it from its transferee through another sale-deed and thereby he
became the full owner of the suit premises. Petitioner as such accepted the
respondent as his landlord and executed a rent deed on 26.6.1970 in his favour
and was regularly making payment of rent and subsequently since 1.11.1978
defaulted in payment of rent, presumably after he managed to get a decree in
his favour in Suit No. 905/1 instituted on 4.12.1977 decided on 10.12.1977. As
far as Mutation No. 3391 is concerned, which was entered on the basis of
aforementioned decree allegedly passed in favour of the petitioner, it pertains
to a joint `Khata' measuring 6 kanals 3 marla through which 2/266 share is
shown to have been transferred in his favour. This mutation was, therefore,
held by the learned District Judge to have no connection with the
"Saqawa" in question which was in possession of the petitioner long
before the acquisition of such right and title in the joint "Khata".
We, therefore, find no infirmity in the judgment of the learned High Court
refusing to interfere with the finding of the learned District Judge that the
tenant was debarred from challenging the title of his landlord. Petition is,
accordingly, dismissed."
8. The petitioner
who is claiming title through Respondent No. 2 when resisted the execution of
the order thus passed against him on the ground of ownership, this Court while
dealing with her revision petition impugning the orders of forums below held as
under:--
"In the rent proceedings it has been established
that Tor Muhammad was tenant of the property and Maqsud Ilahi, the landlord.
The question of ownership was also raised by Tor Muhammad in the rent
proceedings but eventually it was not accepted as the Court found him to be a
tenant in the property. The petitioner Mst. Gul Pari claims that the property
in question was transferred through gift mutation by Tor Muhammad in her favour
in the year 1980. Her title to the property cannot be in any case better than
the transferor Tor Muhammad. Additionally, the petitioner being the wife of Tor
Muhammad must have known about the ejectment proceedings but failed to become a
party to those proceedings. Thus, there is no reason to interfere with the
findings of the two Courts in revisional jurisdiction. The revision petition
is, therefore, dismissed in limine."
9. Where this
Court and the Hon'ble Supreme Court in view of the dicta rendered in the cases
of Rehmatullah Vs. Ali Muhammad and another (1983 SCMR 1064) and Province of
Punhab Vs. Abdul Ghani PLD 1985 Supreme Court 1) neither entertained any doubt
as to the title of Respondent No. 1 nor permitted Respondent No. 2 to file a
fresh suit on the basis of title and proceeded to decide the question of title
on merits after considering their respective pleas raised before them, it would
certainly operate as res judicata. The suit of the petitioner in view of the
finding given on merits in the revision petition filed by her against the
orders dismissing her objection petition, would also operate as bar to the suit
when it for not being questioned in the Supreme Court has attained finality.
The cases of Junaid Rashid and others Vs. Sultan Muhammad and others and
Amiabai Vs. Ibrahim and 4 others (Supra) cited by the learned counsel for the
petitioner because of their distinguishable facts and features have no
perceptible relevance to the case in hand.
10. Having thus
seen in this background, we have no hesitation to hold that the order of the
learned Additional District Judge dismissing the suit of the petitioner being
free from any jurisdictional error is not open to any exception.
11. For the
reasons discussed above, this writ petition being without substance is
dismissed.
(J.R.) Petition
dismissed.
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