PLJ 2013 SC (AJ&K) 206
[Appellate Jurisdiction]

Present: Muhammad Azam Khan, C.J., Raja Saeed Akram Khan, J.

ABDUL RAUF KHAN--Appellant

versus

MUHAMMAD HANIF & 14 others--Respondents

C.A. No. 58 of 2006, decided on 24.4.2012.

(On appeal from the judgment and decree of the High Court dated 30.1.2006 in Civil Appeal No. 166 of 2004).

Civil Procedure Code, 1908 (V of 1908)--

----S. 11--Res-judicata--Question of--Sale-deed had been valid, it cannot be assailed afresh--Dismissal of suit by High Court--Validity--No Court shall try any suit or issue in which matter directly and substantially in issued had been directly and substantially in issue in former suit between same parties under whom they or any of them claims, litigating under same title, in a Court competent to try such subsequent suit or suit in which such issue had been subsequently raised and had been heard and finally decided by such Court. [P. 211] A

Civil Procedure Code, 1908 (V of 1908)--

----S. 11--Res-judicata--Sale deed was challenged in a regular suit which was dismissed--Fresh suit cannot be filed--Question of--Whether matter directly and substantially was resolved by Court of competent jurisdiction can be re-agitated through a fresh suit--Validity--It is settled that a point directly in issue between same parties and when attained finality, fresh suit with regard to same matter between same parties was not competent--Logic behind rule of res-judicata is that party cannot be vexed twice for same cause--All suits were based upon cause of action--When a judgment was announced, cause of action merges into judgment and filing of fresh suit on similar cause of action amounted to dragging innocent person in unnecessary litigation. [P. 212] B

Res-judicata--

----Cause of action--Sale deed was declared validity by High Court--No suit was competent against sale deed--Validity--Subsequent suit was filed on same cause of action--It was not maintainable and liable to be dismissed--Since sale deed had been declared valid by High Court and was declared owner--Plaintiff had no cause of action against decree--Suit of plaintiff was liable to be dismissed on sole ground of res-judicata. [P. 214] C

Limitation Act, 1908 (IX of 1908)--

----S. 28 & Art. 144--Adverse possession--No decree was passed on ground of adverse possession till omission of S. 28 of Act--Validity--Effect of repeal of Art. 144 and S. 28 of Limitation Act was considered by Supreme Court in case titled Isamdad Khan v. M. Khurshid. [P. 214] D

Adverse Possession--

----Column of possession--Validity--Adverse possession must be actual, open, exclusive, continuous, hostile and adverse to knowledge of real owners and persons in possession had never recognized ownership of land owners. [P. 214] F

Adverse Possession--

----Adverse possession can be ascertained from other possession--High Court passed decree on ground of adverse possession--Validity--For determination of adverse possession, other circumstances can be considered but considering the whole record, possession was not proved to be adverse possession--Decree for declaration on ground of adverse possession cannot be passed. [P. 214] F

Raja Hassan Akhtar, Advocate for Appellant.

Ch. Lal Hussain, Advocate for Respondents.

Date of hearing: 23.1.2012

Judgment

Muhammad Azam Khan, C.J.--This appeal, with leave of the Court, arises out of the judgment and decree of the High Court dated 30.1.2006, whereby appeal filed by the appellant, herein has been dismissed.

2. Respondents, Sabir Hussain and others, filed a declaratory suit in the Court of Civil Judge Mirpur on 7th October 1995 alleging therein that they are owners of the land measuring 37 kanals and 19 marlas, comprising Survey Nos. 105, 178, 309, 47, 47 min, 335/36. 328/63, 334/36, 293, 153, 140, 329/63, 284 and 126 situate in village Khaukhar, Tehsil and District Mirpur; Plaintiff No. 1 is owner of 1/2 of the share out of 3/4th share of the land, Plaintiff No. 2 and proforma Defendants No. 4 and 5 are owners of 1/2 of the share in the land. The sale-deed executed by Mst. Shah Begum in favour of Noor Mai on 10th March, 1955 and the decree passed in suit titled Abdul Rauf v. Noor Max by Sub-Judge, Mirpur on 17th February, 1959 is against law, facts, inoperative on the rights of plaintiffs and proforma defendants. The mutations sanctioned on the strength of the said decree were also challenged. In alternate they claimed that their hostile possession has matured into ownership. Consequential relief for joint possession was also sought and perpetual injunction to the effect that Defendant No. 1 be refrained from interfering into their possession except Survey No. 293, measuring 8 kanals 7 marlas. In the written statement, Defendant No. 1 took the position that sale-deed was challenged by the plaintiffs in a regular suit which was dismissed and on the principle of res judicata, the plaintiffs cannot file fresh suit. It was further claimed that plaintiffs have challenged the sale-deed dated 10th March, 1955, therefore, the suit is time-barred. After necessary proceedings the trial Court dismissed the suit on 31st October, 2003. The plaintiffs, respondents herein, filed an appeal before the District Judge Mirpur which was accepted vide judgment and decree dated 5th October 2004. The appellant, herein, filed an appeal in the Azad Jammu and Kashmir High Court. A learned single Judge in the High Court accepted the appeal to the extent of Survey No 293 vide impugned judgment and decree dated 30-1-2006 while the appeal to the extent of remaining disputed survey numbers was dismissed. The appellant, herein, filed a petition for leave to appeal against the said judgment and decree of the High Court. Leave was granted on 18th May, 2006,

3. Raja Hassan Akhtar, the learned counsel for the appellant, argued that the judgment of the High Court is not maintainable. Mst. Shah Begum executed sale-deed in favour of Noor Mai on 10th March, 1955. Khan Muhammad and Muhammad Khan challenged this sale-deed by way of a suit filed on 22nd April 1955. The trial Court decreed the suit vide judgment dated 17th February, 1959. Shah Begum filed an appeal before the District Judge Mirpur. The learned District Judge Mirpur accepted the appeal and dismissed the suit filed by Khan Muhammad and others on 21st May 1956. Khan Muhammad and others filed an appeal in the High Court. The appeal was dismissed vide judgment dated 11th February 1957. The said judgment of the High Court has attained finality as it was decided on merits. The judgment operates as res judicata. In presence of said finding, fresh suit on similar grounds is not competent. The learned counsel has placed reliance on a case titled Ghulab and 6 others v. Muhammad Younis and 7 others [PLD 1983 SC (AJ&K) 89]. The learned counsel vehemently argued that the appellant obtained a compromise decree in favour of Noor Mai on 17th February, 1959, In the present suit filed on 7th July 1985, the sale-deed dated 10th March, 1955 and compromise decree dated 17th February, 1959 were challenged. The suit against the sale-deed dated 10th March, 1955 barred is hit by the doctrine of res judicata and against decree dated 17th February, 1959 time-barred. The learned counsel further argued that the District Judge as well as the learned single Judge in the High Court miserably failed to go through the record. From the record produced by the appellant herein, i.e., exhibit PAA, record of rights pertaining to years 1951-52, 1964-65, 1968-69, 1976-77, 1980-81 and 2000-2001, it is clear that the possession of the plaintiffs is not entered in the revenue record. In the column of possession, the entry is shown as
" ". The judgments of the District Judge and learned Judge in the High Court are not maintainable. The decree in favour of the plaintiffs, respondents herein, was passed on the ground of hostile possession. When the possession is not proved, how the question of hostile possession arises. The learned counsel argued that the decree in favour of plaintiffs was passed by the learned District Judge on 5th October 2004. Section 28 and Article 144 of the First Schedule of the Limitation Act, 1908 which deal with the adverse possession were repealed on 7th December 1996. After the repeal of Section 28 and Article 144, the decree on the ground of adverse possession cannot be passed. The decree can only be passed under a law and when there is no law, the decree cannot be passed. The learned counsel further argued that out of the land in dispute, the land Measuring 23 kanals was mortgaged and the appellant got a decree for redemption of mortgaged land in 1980. After redemption of mortgage, the possession was handed over back to the defendant-appellant. The learned counsel contended that the land measuring 11 kanals is still under mortgage. He argued that the land was mortgaged with the plaintiffs, respondents herein, and a mortgagee cannot claim adverse possession against an owner because it is settled that once a mortgagee is always a mortgagee. He referred to the cases titled Raja and other v. Karam Ali and others [PLD 1951 Lahore 177] and Suleman and 3 others v. Custodian, Evacuee Property, West Pakistan, Lahore and 2 others [PLD 1971 Lahore 77].

4. While controverting the arguments, Ch. Lal Hussain, the learned counsel for the respondents, argued that the judgment of the High Court is perfectly legal. The plaintiffs, respondents herein, are in possession of the land since long which had matured into ownership before the repeal of Section 28 and Article 144 of the Limitation Act and if the possession has matured into ownership before repeal of law, then a decree on the ground of adverse possession can be passed. He referred to an unreported judgment of High Court in case titled Muhammad v. Sohbat [civil appeal No. 41 of 2002 decided on 7th February 2003] (the learned, counsel has not produced the copy of the said judgment). The learned counsel vehemently argued that Shah Begum was a limited owner. She had interest in the property only for the life time. She was not entitled to alienate the land. The learned counsel contended that mortgage cannot stand in the way of adverse possession. If adverse possession is proved from the record, then it makes no difference that land was mortgaged or not. The learned counsel further argued that the plaintiffs, respondents herein, were not party in the earlier suit. The judgment and decree dated 17th February, 1959 does not create res judicata against them. He referred to page 6 of the judgment of the High Court and argued that the High Court has held that subsequent compromise decree in favour of Abdul Rauf, appellant herein, dated 17th February, 1959 does not affect the adverse possession as the plaintiffs had not been impleaded as party to the proceedings. He referred to the cases titled Ali Haider Khan v. Muhammad Aziz Khan and others [1993 SCR 170], Muhammad Zaman v. Fazal Elahi and 20 others [2001 SCR 153].

5. In rebuttal, Raja Hassan Akhtar, the learned counsel for the appellant argued that plea of title and adverse possession cannot co-exist. He referred to the cases reported as Ch. Shaukat Ali v. Province of Punjab and another [1989 SCMR 1254].

6. We have heard the learned counsel for the parties and perused the record. Khan Muhammad and Muhammad Khan, the predecessors of the respondents, filed a declaratory suit in the Court of Civil Judge on 7th October, 1985. They challenged sale-deed dated 10th March, 1955 and decree passed in favour of the appellant dated 17th February, 1959. They also claimed adverse possession in the suit land. A decree for joint possession and perpetual injunction was also claimed on the ground that husband of Mst. Shah Begum died in the year 1992 BK. and the land was mutated in her name under custom on 16th Har, 1993 BK. She was a limited owner, therefore, she was not entitled to transfer the land in excess of her share under Shariah law. The parents of the plaintiffs and pro forma defendants were alive at the time of death of Mst. Shah Begum, therefore, they were entitled to 3/4th share in the land. In paragraph 6 of the plaint they alleged that apart from Survey No. 293, measuring 8 kanals 7 marlas, they are in possession of the whole land and owners of the 3/4th share of the land. Their adverse possession in the land had matured into ownership. The defendant, appellant herein, raised a preliminary objection that plaintiffs had filed a suit against sale-deed dated 10th March, 1955 which was dismissed, therefore, the present suit is hit by the doctrine of res judicata and is time-barred too.

7. Firstly we deal with the question of res judicata. A declaratory suit against the sale-deed dated 10th March, 1955 was filed by Khan Muhammad son of Akoo Khan and Muhammad Khan son of Muhammad Alam. In the line of respondents, Mst, Shah Begum, widow of Khan Bahadur, Noor Mai son of Bhola, Ahmed Khan and Rehmat Khan sons of Muhammad Alam, Muhammad Sahfi son of Sher Alam, Sadiq and Dilawar sons of Mehboob Alam were impleaded party in the suit. The suit was decreed but on appeal, the District Judge set aside the decree passed by the trial Court and dismissed the suit. The findings recorded by the District Judge were maintained by the High Court vide judgment and decree 11th February 1957. We have also perused the suit filed on 7th October 1985. This suit is filed by Khan Muhammad son of Akoo Khan and Muhammad Khan son of Muhammad Alam against Abdul Rauf Khan, appellant, and others, as real defendants and Ahmed Khan and Rehmat Khan sons of Muhammad Alam as pro forma defendants. The learned single Judge in the High Court at page 6 of the judgment has observed as under:--

"In the present case, the sale-deed executed on behalf of Shah Begum in favour of Noor Mai cannot be challenged on any ground because it has been held valid up to this Court in earlier round of litigation."

After reaching the conclusion that in the earlier round of litigation, the sale-deed dated 10th March, 1955 has been held valid and it cannot be assailed afresh, it was enjoined upon the High Court to dismiss the suit on the question of res judicata. Section 11, C.P.C. deals with the res judicata. It postulates that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claims, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

8. The doctrine of res judicata is applicable in a case where the matter in dispute has been considered and finally settled between the parties by a Court of competent jurisdiction and such adjudication has conclusive effect upon the rights of the parties. The first question for consideration by this Court is whether a matter directly and substantially in issue has been resolved by the Court of competent jurisdiction, can be re-agitated through a fresh suit. It is settled that a point directly in issue between the same parties and when finally concluded and attained finality, the fresh suit with regard to the same matter between the same parties is not competent. The logic behind the rule of res judicata is that a party cannot be vexed twice for the same cause. There must be some end to the litigation. All the suits are based upon the cause of action. When a judgment is announced, the cause of action merges into the judgment and filing of fresh suit on similar cause of action amounts to dragging the innocent persons in unnecessary litigation. The question of res judicata came under consideration of this Court in a case titled Shaikh Abdul Aziz v. Mirza and 3 others [PLD 1989 SC (AJ&K) 78] in which it has been observed as under:--

".....As already observed the question whether the property in dispute was evacuee or not was subject-matter of previous litigation between the parties in which it was decided that the property in dispute is evacuee in nature. This finding is binding on both the parties and cannot be re-opened. If this point is allowed to be raised in this proceeding it would lead to anomalous situation. When Abdul Aziz moved an application that the property in dispute was not evacuee the other party successfully raised the plea that the property was evacuee and now when he has made an application under Section 23 of the Act that the property, being evacuee, may be restored to him the same party has come up with the plea that the property is not evacuee. This is not allowed by law. The issue whether the property in dispute is evacuee or otherwise directly and substantially was in issue in the former proceedings and the parties were also the same. Finding on this point has resulted in a particular order. Thus, all the conditions necessary for the applicability of principle of res judicata are present in the situation and the finding of evacuee nature of the property has the force of res judicata. Apart from that, the principle of estoppel also debars the respondents from pleading to the contrary."

9. In an other case reported as Said Muhammad v. Karam Dad and 5 others [1999 SCR 97] it was held as under:--

"The High Court has also relied on a judgment of the Supreme Court of Pakistan reported as Rehmat Ullah v. Ali Muhammad [1983 SCMR 1064) wherein it is laid down that if any question has been determined by a tribunal or a statutory authority it cannot be re-agitated before a Civil Court on the general principles of res judicata. It is an accepted position that general principles of res judicata can be made applicable by Courts where the Code is not applicable, because disputes once decided must attain finality at some stage. However we may observe that where Section 11 of the Code is not applicable general principles of res judicata have to be applied with care and technicalities have to be avoided.

However principles of statutory res judicata, or the general principle of res judicata, are applicable only if an issue has been tried and finally decided..........".

Similarly in another case titled Sakhiullah v. Habibullah [2011 SCR 133] it was held as under:--

"............The rule of res judicata is based on the principle that there must be some end to the litigation and the parties are not to be vexed twice for the same cause. The question of cause of action is important for determining the question of res judicata. If the matter involved is based on different cause of action, there will be no res judicata and if the matter is finally adjudicated, fresh suit on the same cause of action constitutes res judicata."

It was further observed in paragraph 10 of the referred case as under:--

"To constitute res judicata it is essential that a matter must be directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. ......."

10. As is evident from the record that Khan Muhammad and Muhammad Khan filed the suit on 22nd April 1955 whereby they challenged the sale-deed dated 10th March, 1955 and decree was passed on 27th February, 1956. The suit filed on 22nd April 1955 was finally dismissed by the High Court on 11th February 1957 and attained finality. Later on a compromise decree was passed in the suit titled Abdul Rauf v. Noor Mai by Sub-Judge, Mirpur on 17th February, 1959, Khan Muhammad and Muhammad Khan filed the subsequent suit on 7th October 1985 whereby the sale-deed dated 10th March, 1955 and decree dated 17th February, 1959 were challenged. The question before the Court in the said suit was that Mst. Shah Begum was a limited owner. She could not alienate the land. The High Court declared the said sale-deed as valid. The subsequent suit was filed by the same party, i.e., Khan Muhammad and Muhammad Khan and the sale-deed dated 10th March, 1955 and decree dated 17th February, 1959 have been challenged. The findings to the extent of sale-deed dated 10th March, 1955 have attained finality after the judgment of the High Court dated 11th February, 1957. No suit is competent against the sale-deed dated 10th March, 1955. The subsequent suit has been filed on the same cause of action. It is not maintainable and liable to be dismissed on this sole ground. Since the sale-deed dated 10th March, 1955 has been declared valid by the High Court and Noor Mai was declared owner, the plaintiffs have no cause of action against decree dated 17th February, 1959 because Noor Mai was owner of the land. The suit of the plaintiffs was liable to be dismissed on the sole ground of res judicata.

11. We have considered the argument of the learned counsel for the appellants that no decree was passed in favour of the respondents on the ground of adverse possession till omission of Section 28 and Article 144 of 1st Schedule of the Limitation Act, 1908 on 7th December 1996. The decree in favour of respondents was passed on 5th October, 2004. The effect of repeal of Article 144 and Section 28 of the Limitation Act was considered by this Court in a recent case titled Isamdad Khan and another v. Muhammad Khurshid Khan and others [Civil Appeal No. 52 of 2005 decided on 10.4-2012], in which it was observed in Paragraph 7 as under:--

"7. It is well settled principle of law that procedural law operates retrospectively even if such law doesn't specifically envisages so. The law of limitation is a procedural law and it takes effect retrospectively. There is an exception to it that if the rights vested in a party are taken away or destroyed by amendment, the operation of law shall not be retrospective, it shall be prospective, ......."

It was concluded in Paragraph 8 of the referred case as under:--

"8. The deletion of Section 28 and Article 144 of the Limitation Act will not affect the suits filed in the Court. The suit shall continue to be governed by the law which was in existence at the time of filing the suit."

12. Even otherwise, we have perused the copies of record of rights, exhibit PAA, pertaining to years 1965-66, 1976-77, 1980-81, 1991-92 and 2000-2001. The possession of the plaintiffs, respondents herein, is not entered in the said record. In the whole record, in the column of possession the words " " are entered. If in the column of possession " " is entered, how the respondents can be declared as in adverse possession of the land. It may be observed that adverse possession must be actual, open, exclusive, continuous, hostile and adverse to the knowledge of the real owners and persons in possession have never recognized the ownership of the land owners.

13. The High Court has passed the decree on the ground of adverse possession observing that adverse possession can be ascertained from other circumstances. It is correct that for determination of adverse possession, other circumstances can be considered but considering the whole record, the possession of the respondents is not proved to be adverse against the appellants. The decree for declaration on the ground of adverse possession cannot be passed in favour of the respondents. The judgments of the District Judge and the High Court are not maintainable on this score too.

The result of the above discussion is that we accept the appeal and set-aside the judgments and decrees passed by the High Court and that of the District Judge. Consequently, the judgment and decree passed by the trial Court is restored.

(R.A.) Appeal accepted