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Civil Petition No.96‑R of 1983, decided on 21st March 1984.

(From the order dated 9‑3‑1983 of the Peshawar High Court passed in Civil Revision No. 30 of 1982).

Constitution of Pakistan (1973)‑‑

‑‑‑Art.185 (3)‑‑ Limitation Act (IX of 1908), Art.148‑‑ Mortgage‑ Suit for redemption of‑‑Plea of limitation found to have been in issue and decided in earlier suit‑‑Held, Courts below rightly held that such plea was barred by res-judicata in later suit‑‑Civil Procedure Code (V of 1908), S.‑11. ‑‑[Res judicata].

Maulvi Sirajul Haq, Advocate Supreme Court instructed by Afzal Siddiqi, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 21st March, 1984.

The petitioners are aggrieved by the order of the Peshawar High Court agreeing with the concurrent finding of the Courts below that the petitioners' suit was barred by res judicata and accordingly dismissing their revision in limine.

2. The suit land, which had originally belonged to Allah Dad, has been mortgaged by him in favour of Khan Baz and Muzaffar Khan the predecessors‑in‑interest of the petitioners by a registered mortgage deed, dated 11‑8‑1910. As the revenue record continued to show the mortgagees as owners, the heirs of Allah Dad brought a suit on 1‑9‑1965 against the petitioners for a declaration as to their rights as owners/ mortgagors and for possession of the land on payment of the mortgage money of Rs. 400. Their suit was decreed which decree was maintained upto this Court, where the petitioners' C.P.S.L.A. No.22‑P of 1978 was dismissed on 24‑3‑1979. However, on 15‑1‑1980 the petitioners brought the present suit against the respondents, i.e., the heirs of Allah Dad, for a declaration that they (the petitioners) were owners in possession of the property and that the mortgagors' rights of the respondents had extinguished since 11‑8‑1970 on account of expiry of the period of limitation of 60 years, and for a permanent injunction restraining the respondents from interfering with their possession. The trial Court after framing necessary issues found that the plea of the petitioners being directly and substantially in issue in the earlier suit was res judicata and accordingly dismissed the suit. This view has been upheld throughout.

3. It is not denied that the period of the mortgage was 20 years. That being so, the period of limitation would expire, under Article 148 of the Limitation Act, on 10‑9‑1990. It is to be noted that the earlier suit filed by the respondents/ legal representatives of Allah Dad had been resisted by the petitioners on the ground, inter alia, of the same being barred by limitation. The plea had failed and in that connection this Court had observed that:

As to the question of limitation, which is covered by issue No.2, the finding recorded by the trial Court was that since the suit land had been mortgaged by late Allahdad in favour of Khanbaz and Muzaffar on 10‑8‑1910 (vide registered mortgage deed Exh. P.W. 2/5), the suit filed by the respondents would be covered by Article 148 of the Limitation Act (where under the period of limitation is sixty years) and consequently the suit filed by the respondents was well within time‑‑moreso when the period of twenty years for which the land was mortgaged had to be added to the said period of sixty years. This seems to be the correct finding recorded by the learned trial Judge to which no exception can be taken."

It is, thus, clear that the plea of the petitioners in the present suit had been in issue and decided in the earlier suit and as such had been rightly held to be barred by res judicata. The petition is dismissed.

S. Q. Petition dismissed.

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