SHAHBAZ KHAN vs ADDITIONAL DISTRICT JUDGE, FEROZEWALA and others

ORDER

MIAN SAQIB NISAR, C.J.---The petitioner claims that the suit land has been orally gifted to him by his father Chiragh Din vide mutation No.127 dated 23.07.1990. The co-sharers and legal heirs of Chiragh Din challenged this mutation on the Revenue side. Finally, the Member Board of Revenue vide his order dated 24.07.2003 declared the gift mutation to be invalid. This order was challenged by the petitioner in Writ Petition No.14051/2003 which was dismissed on 08.10.2003 and his Civil Petition No.1139- L/2004 was also dismissed by this Court on 09.03.2007. Another aspect of the matter is that the petitioner filed a suit for permanent injunction on 26.08.2003 with the prayer inter alia that the co-sharers of the property may not alienate the land without proper partition despite the fact that the order of Member, Board of Revenue dated 24.07.2003 was in the field, it was not challenged. However, this suit was subsequently withdrawn on 05.12.2003. Thereafter, on 16.03.2007 the petitioner filed another suit for declaration, wherein the same order of Member Board of Revenue dated 24.07.2003 was challenged. The respondents filed an application under Order VII, Rule 11 of the Code of Civil Procedure, 1908 (C.P.C.), which was declined by the learned Trial Court.

However, in revisional jurisdiction the application was accepted and the suit was dismissed on two grounds, firstly, that the second suit was hit by the provisions of Order II, Rule 2, C.P.C. as the first suit was withdrawn without permission of the Court to file a fresh suit, and secondly, that it did not disclose any cause of action. This order was affirmed by the learned High Court in the writ petition through the impugned judgment.

2. Having heard the learned counsel for the petitioner, we find that he (the petitioner) on the basis of oral gift and the mutation No.127 dated 23.07.1990 had no right in the property, because the order dated 24.07.2003 passed by the Member Board of Revenue is clear and unambiguous. This order was affirmed by the learned High Court vide its judgment dated 08.10.2003. Therefore, the petitioner could not have challenged the same order again through a civil suit, which although in field when the earlier suit for grant of injunction was filed was not challenged. Further, the said suit was subsequently withdrawn without seeking permission to file a fresh one. Thus, both the provisions, i.e., Order H, Rule 2, C.P.C. as also Order XXIII, Rule 1(3), C.P.C. were fully attracted to the case of the petitioner as rightly held by two Courts below. No case for interference is made out. The petition is accordingly dismissed and leave is refused.