Law:

Section:

(a) Civil Procedure Code (V of 1908), S. II-Earlier decision appealed from-Will not operate as res judicata pending appeal. When the decision of the lower Court is appealed from all questions decided by it, again become sub-judice and its decision cannot operate as res judicata pending the appeal. It is also true that decision of the appellate Court on such questions super­sedes the decision of the first Court and that for the purposes of res judicata, the decision of the appellate Court unless it adopts that of the first Court, is to be considered, but if the appeal is not decided on the merits or is not entertained, it becomes infructuous and the decision of the lower Court becomes conclusive and operates as res judicata as regards the question decided by it in a subsequent suit between the same parties assuming of course that other conditions of the rule exist. (b) Civil Procedure Code (V of 1908), S. II-Erroneous deci­sion on question of law in previous suit-Not res judicata­-----Later decision, however, should not affect operation of former decree. An erroneous decision on a question of Law in a previous suit is not a bar in a subsequent suit between the same parties and different decision may be given on that question but decision so given should not in any way affect the operation of the former decree or take away the rights acquired by the parties thereto. JUDGMENT ABDUL MAIID, C. J.-This is a second appeal by the defendants in a suit for possession of land brought in the following circumstances. Ibrahim who had occupancy rights In the land in suit left a widow Ilam Bibi in sambat 1962, she executed a deed of gift !n favour of her daughter Mst. Kako defendant No. 2 who is the wife of defendant No. 1. In Sambat 1970 the father of the plaintiff No. 1 and the remaining plaintiffs Instituted a suit ay collaterals of Ibrahim that the deed of gift should be held invalid as against their rights. They obtained a decree to that effect up to the High Court. After the death of Ilam Bibi, the plaintiffs brought a suit in sambat 1999 for possession of the land in suit. The defendants resisted the suit on the ground of their adverse possession and limitation. Both…

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