ORDER: -This revision petition arises out of an order passed by Sub-Judge Poonch on 31-3-1993 in suit File No. 61/92. Trial Court under the impugned order decided the following three issues on preliminary basis: -

(i) Whether the present suit is hit by res judicata? OPD

(ii) Whether the plaintiff has no right or cause of action to file the present suit? OPD

(iii) Whether the present suit is not maintainable for want of necessary parties? OPD

2. Presently the order is challenged in so far as it relates to the first two issues as the same have been decided against the petitioner.

3. The suit before the Trial Court was for declaration of ownership with possession in respect of Khasra No. 3220 measuring 3-kanal 1-marla situate at Poonch town near Jail, along with a single storey house. A prayer of consequential relief of permanent prohibitory injunction restraining the defendants from interfering or disturbing the possession was also made.

4. Prior to this suit No. 54-A-civilof 1991 had been filed by the plaintiff for grant of decree of declaration that plaintiff in the capacity of being son of Kartar Singh (defendant No. 1) was the owner of land comprising of Khasra Nos. 2731, 2732, 2738, 2739, 3219, 3220 & 549/1. In addition to such relief an agreement to sell dated 25-5-1991 which relates to proposed transfer of land measuring 1-kanal 10-marla comprised in survey No. 3220 was sought to be declared null and void and inoperative against the plaintiff. Besides this an AAknama executed on 1-7-1991 was also called in question. The earlier suit was against Kartar Singh, Rajinder Singh and Bikramdev Singh whereas the present suit has added Bikramdev Singh, Molvi Ghulam Qadir and Fida Hussain as defendants. Earlier suit was withdrawn by the plaintiff on 27-3-1992. On that day neither any permission was sought nor was the same granted for filing a fresh suit. On a plea of res-judicata and lack of cause of action having been taken by the defendants the Court framed eight issues and three of them were treated as preliminary issues and decided by the impugned order. Trial Court has replied both the issues in negative. Hence this revision.

5. The case of the petitioner is that once the matter was withdrawn from the Court, a fresh suit could not be filed within respect to the same property under Section 11, C.P.C. Besides this, as no permission for institution of a fresh suit was granted by the Court at the time of withdrawal of the earlier suit, the suit was barred by Order 23, Rule 4, C.P.C. therefore, fresh suit could not be filed.

6. I have heard the learned counsel for the parties and considered the case.

7. For attracting application of Section 11, C.P.C. following conditions are required to be fulfilled: -

That the litigating parties in both the suits must be the same;

That the subject matter in both the suits should be directly and substantially same;

That the matter should have been finally decided in the earlier suit;

That the Court which has decided the matter earlier should have been competent to decide the same.

True that both the suits were primarily for declaration. As described above, other reliefs sought in the earlier suit were altogether different. Besides this in the earlier suit the relief of declaration was sought by the plaintiff in his capacity as son of respondent Kartar Singh. Earlier suit related to a considerable chunk of land comprising of as many as seven survey numbers in addition to survey No. 3220 to which the present suit relates. The specifications of the land under this survey number are vividly distinct. Relief of permanent prohibitory injunction in both the suits flows from this relief as a consequence. No issues in the earlier suit were struck nor was any of them decided on merits.

We will have to answer the following two important questions in this case in the backdrop of above observations :-

Whether the subject matter in both the suits was directly and substantially same;

Whether the matter was finally decided in the

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