MUHAMMAD KHAN vs Mst. AKBARI And 10 OTHER

ORDER

This civil revision arises out of the judgment and decree, dated 1-6-1992, by which a learned.

Additional District Judge, Gujranwala, dismissed the appeal of the plaintiff-petitioner against the judgment and decree, dated 13-6-1991, whereby a Civil Judge at Gujranwala had dismissed his suit.

2. The brief facts of the case as embodied in the pleadings of the parties are these:--

3. The suit land had been allotted to the predceessors of the respondents in the year 1955 in lieu of mortgagees' rights. Subsequently in the year 1958 the petitioner was allotted the suit land besides some other land as a refugee from Jammu and Kashmir for 'gum a' and since then he has been in possession thereof. The allotment of the predecessors of the respondents was cancelled by the Assistant Consolidation Officer on 30-4-1961 on the ground that they had not satisfied the requirements of temporary allotment. Their appeal against this order was dismissed by Deputy Rehablitation Commissioner (Lands) on 1-12-1962 while their revision was dismissed by the Additional Rehabilitation Commissioner (Lands) on 12-6-1963. Aggrieved by these orders they brought Writ Petition .No.2727/R of 1963 which was accepted on 14-7-1971 on the ground that Assistant Consolidation Officer had no jurisdiction to cancel their allotment. Against this order, the petitioner went up in appeal before the Supreme Court which was dismissed on 24-11-1972. The review filed by him in that august Court failed on 15-6-1973.

4. It appears that persuant to the allotment of land, which was confirmed in favour of the petitioner in 1962, he deposited the price in the year 1978 under the policy decision of the Government and later Mutation No.16190 was sanctioned in his favour on 18-1-1981.

5. To give effect to the decision of their Writ Petition No.2727/R of 1963 in the Revenue Record, the respondents moved for the entry and attestation of mutation and it was eventually attested on 30- 4-1986. Aggrieved by it, the petitioner brought a suit which was dismissed on 13-6-1991 and his appeal was dismissed on 1-6-1992, giving rise to this Civil revision.

6. It is argued on behalf of the petitioner that the predecessors of the respondents had not satisfied the conditions on the basis of which they had obtained the allotment of land as they did not deposit the mortgage amount and as such their allotment was liable to be cancelled and since they did not take any step to execute the order, dated 14-7-1971, passed by the High Court in the aforesaid writ petition till 1986, the limitation had intervened and it could not be given effect as late as 30-4-1986 when a mutation was sanctioned in their favour. It is urged that the petitioner has been in possession of the disputed land through his tenants ever since 1958 and his suit was within time and had adequate merits because the land in suit was confirmed in his favour in the year 1962 and he had deposited its price persuant to the policy decision of the Government in the year 1978, on the basis of which Mutation No.190 was validly sanctioned on 18-1-1981 in his favour and it still subsists in the Revenue Record.

7. There is no substance in the above contention of the learned counsel. The parties have been litigating almost for three decades and his client has remained unsuccessful right up to the highest forum i.e. Supreme Court of Pakistan. On the first round he had been raising various pleas available to him before different forums and at no stage their validity had been accepted. Therefore, neither the confirmation of his allotment in the year 1962, nor the payment of the price of land by him and consequent attestation of mutation in his favour on 18-1-1981, nor his alleged possession of the suit land, is of any avail to him. These grounds were always available to him and he could press them into service. If he omitted to press any, he cannot now make use of it because the principle of constructive res judicata operates against him. In fact, after the finalisation of the controversy at the highest level, there was no justification for him to reagitate the same question before the trial Court and the lower appellate Court and now before this Court. Apparently he is repudiating the clear findings of the High Court and the Supreme Court and he and his counsel all are guilty of contempt of Court and they can be proceeded against accordingly if the respondents make a move to that effect.

8. Lastly, during the course of arguments, I have posed a question to the learned counsel for the petitioner that, as per averments in the pleadings and his own contention if the suit land was allotted to the predecessors of the respondents in the year 1955, how his client happened to obtain allotment of the same land in the year 1958? He has no reply thereto.

9.In view of the above, there is no substance in the Civil Revision and the same is dismissed in limine.