SATISH KUMAR MITTAL,J - (1.) THIS is a defendant's Regular Second Appeal. Both the Courts below have decreed the suit of the plaintiff-respondent for declaration with consequential relief of permanent injunction, restraining the defendant from claiming any right in the suit property and from interfering in the possession of the plaintiff over the suit property.
(2.) IN the present case, the plaintiff filed the aforesaid suit against the defendant claiming himself to be exclusive owner in possession of the disputed property. The defendant contested the suit and denied the title as well as possession of the plaintiff over the suit property. Both the Courts below, after taking into consideration the evidence led by the parties, which has been discussed in detail in the impugned judgments, came to the conclusion that the plaintiff is owner in possession of the suit property. This finding of fact has been recorded on the basis of overwhelming evidence, available on the record, including admission of the witnesses of the defendant. Learned counsel for the appellant-defendant has not challenged the said finding of fact. He raised only one legal issue that earlier the respondent- plaintiff filed a suit for permanent injunction against the appellant- defendant, with regard to the same property. The said suit was dismissed by the then Sub Judge 1st Class, Dasuya, on 17.12.1980, while recording the finding that the plaintiff has failed to prove his exclusive possession on the suit property. Against the said judgment and decree, an appeal was filed by the plaintiff. The said appeal was dismissed by the first appellate Court, on 11.08.1982, by modifying the judgment and decree of the trial Court to the extent that the plaintiff was permitted to withdraw the suit with liberty to file fresh suit for declaration with consequential relief of injunction in respect of the subject matter of the suit. Learned counsel submits that since the judgment and decree of the trial Court was not set aside, therefore, the same will operate as res judicata against the plaintiff. In support of his contention, learned counsel for the appellant has relied upon a decision of the Lahore High Court in Shahu v. Mt. Rahmon, AIR 1938 Lahore 52.
(3.) I do not find any force in the contention of learned counsel for the appellant-defendent.;