Nazir Ahmed and others vs Mst. Zubaida Khanum
This petition for leave to appeal challenged a judgment and decree of the Lahore High Court concerning the validity of a land allotment. The petitioners contended that the disputed plot, situated in Sialkot City, was urban property and could not have been transferred to the respondent under a Settlement Scheme as an agricultural plot. The core legal questions were whether the concurrent findings of fact by the lower courts regarding the allotment were sustainable and whether the respondent's suit was barred by the principle of res judicata or the law of limitation. The Supreme Court held that the concurrent findings of fact were based on a proper appreciation of evidence and that the petitioners failed to demonstrate any misreading or non-reading of material evidence. Furthermore, the Court affirmed that the previous litigation did not operate as res judicata because the respondent was not a party to the earlier suits. The petition was dismissed, upholding the principle that concurrent findings of fact, absent legal error or misreading of evidence, are not subject to interference in appellate jurisdiction.
- Does a previous suit to which the current respondent was not a party operate as res judicata?
- Can concurrent findings of fact by lower courts be challenged in a petition for leave to appeal without demonstrating misreading or non-reading of evidence?
- Does the withdrawal of an appeal with permission to file a fresh suit constitute a final decision on the merits for the purposes of res judicata?
DGMENT IRSHAD HASAN KHAN, J.--This petition for leave to appeal is directed against the judgment and decree dated, 19.4.1999 of the Lahore High Court, Lahore passed in RFA No. 42 of 1995.
2. The grievance of the petitioners is that the allotment of land in dispute forming plot NO. 1/592 measuring 1 kanal, 2 merlas bearing Khasra Nos. 4699, 3091-287 situated at Mohallah Wazirpura, Prem Gali, Abbott Road, Sialkot City in favour of the respondent/plaintiff was fictitious and void ab initio inasmuch as the plot in dispute was urban property and the same could not have been transferred to the respondent under the Settlement Scheme as agricultural plot.
3. The contention is devoid of any force. The controversy raised in the petition is concluded by a concurrent finding of fact by all the Courts below. Learned counsel for the petitioners was unable to show that the impugned order is based on mis-reading or non-reading of any material police of evidence. It would be advantageous to reproduce part of the judgment which reads thus:
4. We have minutely gone through the finding recorded by the learned Trial Court on issue No. 5.
After going through the finding recorded by the learned Trial Court on the above-said issue, we are of the view that this contention of the learned counsel is devoid of any force for the simple reason that the suit filed by the respondent/plaintiff was dismissed on 12.7.1976. This decree was assailed in appeal which was dismissed as withdrawn on 20.3.1982 with permission to file fresh suit. It cannot be said that the appeal was finally decided by the learned Addl. District Judge. We have also noted that at the time of withdrawal of the appeal the title of The respondent/plaintiff was in dispute which became final on 8.10.1990 after disposal of Writ Petition No. 184/R/74 wherein the appellants/defendants were also party and the allotment made in favour of the respondent/plaintiff against RL-Il Khata No. 27 was upheld. This being the position and the title of the property of the respondent/ plaintiff after decision of this Court in the above-said writ petition, therefore, the suit filed by the respondent/plaintiff against Ghulam Rasool and withdrawal of appeal with permission to file fresh suit do not operate as resjudicata. The appellants/defendants' claims to be owner of the property in dispute on the basis of the decree of the Court Ex. D1 to D6.
The perusal of the above-said documents reveals that the respondent/plaintiff was not impleaded as party in the above-said suit, therefore, the question of resjudicata does not arise and the finding recorded by the learned Trial Court on issue No. 5 is confirmed. Learned counsel has also argued that the suit filed by the respondent/plaintiff was hopelessly barred by time and it was the duty of the learned Trial Court to take the notice of the same, being question of law, and should have dismissed the same as such. He has further. Contended that by not framing issue on the point of limitation, the learned Trial Court has committed error in law which has rendered the judgment as illegal".
4. After hearing learned counsel for the petitioners and perusing the material on record, we find no illegality or legal flaw in the impugned judgment. Resultantly, this petition is dismissed and leave to . .