Law: Civil Procedure Code (V of 1908)

Section: 11

Civil Procedure Code (V of 1908) S.11.-Res judicata-Contention that. in earlier litigations respondent being a party and decisions therein having been basis of decisions in. suit in dispute, suit barred by res judicata notwithstanding respondents not being party to suit in dispute--Question of res judicata, however, not pressed in High Court and earlier decisions not relied upon before Courts below in support of plea of res judicata-Points urged in High Court though not pressed in Supreme Court yet approach of High. Court on such issues, held, unexceptionable. -[Res judicata]. Date of hearing : 3rd December 1979.                                                                                                                JUDGMENT MUHAMMAD AFZAL ZULLAH J.-Leave to appeal is sought from the judgment dated 21st April, 1978 of the Peshawar High Court ; whereby, the petitioners defendants' second appeal arising out of a declaratory suit was dismissed. Malik Sardar, the common ancestor of the parties held the land in dispute. Two of his sons Rabnawaz and Mir Alam are the predecessors in interest of the petitioners and respondents respectively. The claim in the suit was that notwithstanding the fact that Mir Alam was the owner in possession of the land in dispute Khuda Bakhsh, from the side of the petitioners who was a Patwari through a fraudulent mutation (No. 140 of 1939) got the same mutated otherwise. The respondents remained unaware of the wrong entry till the settlement operation preceding the suit, wherein they were sought to be shown as tenants, therefore, the suit for declaration and also for correction of the entry. The learned trial Judge held that the plaintiffs and defendants 9 and 10 were the owners in accordance with their share and also in hissadari possession. The pleas of res judicata and estopple raised from the petitioners side were rejected. However the suit was…