ALLAH DAWAYA and others vs ADDITIONAL DISTRICT JUDGE and others
This petition for leave to appeal arose from a writ petition challenging the judgment of the Additional District Judge, Lodhran, which had dismissed the petitioners' suit as barred by res judicata. The petitioners, claiming to be the children of the deceased's daughter, sought a half-share of the deceased's estate, alleging they were deprived of their inheritance by the respondents. The trial court decreed the suit, finding that the previous suit challenged a gift whereas the current suit claimed inheritance. However, the appellate court reversed this, noting that the previous suit between the same parties and concerning the same property had already determined the petitioners' lack of entitlement to the inheritance, which judgment had attained finality. The Supreme Court of Pakistan upheld the appellate court's decision, holding that because the questions of the gift and the inheritance claim were both agitated and determined in the previous suit, the subsequent suit was squarely barred by the principle of res judicata. Consequently, the petition was dismissed.
- Whether a subsequent suit for inheritance is barred by res judicata if the question of entitlement to the same inheritance was already agitated and decided against the plaintiffs in a previous suit between the same parties?
- Can a party re-litigate a claim of inheritance on the ground of a different cause of action if the underlying entitlement to the estate was already determined in an earlier unchallenged judgment?
- Section 11, Code of Civil Procedure 1908
' QAZI MUHAMMAD FAROOQ, J.---Petitioners Allah Dawaya and 2 others seek leave to appeal against the judgment dated 28-1-1999 of a learned Judge in Chambers of the Lahore High Court passed in Writ Petition No,7931 of 1996.
2. The writ petition was directed against the judgment dated 5-7-1998 of the learned Additional District Judge, Lodhran whereby Civil Revision No,27/14 of 1994 filed by the respondents Noor Muhammad etc. Was allowed and the judgment and decree dated 22-7-1993 of the learned trial Judge passed in favour of the petitioners was set aside and the suit was dismissed as barred by res judicata.
3. The suit pertained to the inheritance of one Piran and the relief prayed for therein was to the effect that the petitioners being children of Mst. Maryam, daughter of Piran, were entitled to get 1/2 share out of the estate of the deceased but were deprived of their share by the respondents who had got certain mutations attested in their favour through the backdoor. The suit was contested by the respondents and one of the issues framed on the pleading of the parties covered the plea of res judicata raised in the written statement. The suit was decreed by the learned trial Court and the issue with regard to res judicata was resolved in favour of the petitioners with the observations that the cause of action was different in both suits in that in the previous suit the petitioners had challenged the validity of the gift in favour of the respondents whereas in the present suit they had claimed their legal share out of the inheritance of Piran. The revision petition was allowed by the learned appellate Court and the judgment and decree passed by the learned trial Court was reversed with the following observations:-- ' "Issue No,5 is regarding the gift of the entire property by Piran in favour of respondents and Issue No,6 was regarding the entitlement of respondents to inherit the property left by Piran deceased.
Parties produced their evidence on all the issues. Court then seized of the matter decided both of the Issues Nos.5 and 6 against the present respondents, whereby Court held that respondents are not entitled to inherit any property left by Piran deceased vide judgment and dedee dated 9-12- 1965.
' Record shows that judgment and decree dated 9-12-1965 has been passed between the same parties. It is in respect of the same property and the question in dispute in both the suits was the entitlement of respondents to inherit the property left by Piran deceased. The question of entitlement has been determined by the judgment and decree dated 9-12-1965. This judgment and decree has not been set aside by any Court. Findings of judgment and decree dated 9-12-1965 has attained the finality. Since these findings are between the same parties in respect of same property and on the same cause of action, these will operate as res judicata. Trial Court has not properly appreciated the facts of the case and has committed material illegality and irregularity by holding that doctrine of res judicata is not applicable. Findings of trial Court cannot be maintained."
4. It is evident from the copy of the judgment dated 9-12-1965 passed by the then learned Civil Judge, Multan in Civil Suit No,446 of 1968 titled Allah Dawaya etc. v. Eida etc. Obtained from the learned counsel for the petitioners and placed on record, that in the previous suit the questions of gift as well as the claim of the petitioners in regard to the inheritance of Piran were agitated and duly determined. It was held under Issue No,6 that the petitioners were not entitled to any share out of the inheritance of Piran. That judgment and decree having not been challenged has attained finality. The suit in question is thus squarely hit by the principle of res judicata and as such the impugned judgment does not warrant interference. Consequently, this petition being devoid of merit is dismissed and leave declined.
Cited by 4 cases
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- MUHAMMAD BAKHSH and 15 others vs ALLAH WASAYIA and others 2007 PLD Lahore 185
- Muhammad Bakhsh and 15 others vs Allah Wasaya and 2 others 2008 C.L.R. 39
- Shahid Pervaiz and 23 others vs Ejaz Ahmad and 23 others 2016 SCP 118