The principle of res judicata prevents re-agitation of issues already decided in earlier litigation, and adoption is not recognized under Mohammadan law.

JUDGMENT :

1) The petitioner/appellant has sought review of judgment dated 14.11.2006, whereby civil second appeal filed by the petitioner/appellant has been dismissed.

2) It appears that the predecessor-in- interest of the respondents had filed a suit for declaration on 26th of February 1966 against the predecessor-in- interest of the petitioners before the Court of learned Munsiff, Ganderbal. In the said suit, the plaintiff had sought a declaration to the effect that he is the adopted son of one Mohammad Rather and that after his death he has become the owner in possession of about 9 kanals of land situated at village Manigam, Tehsil Ganderbal. The plaintiff had also sought an injunction against the defendant Ramzan Rather restraining him from interfering with his possession over the suit land.

3) On the basis of the pleadings of the parties, the trial court framed the following issues:

1. Whether the plaintiff is the adopted son of Mohammad Rather and is, as such, in possession of the suit land as owner thereof? OPP

2. Whether the defendant is interfering with the proprietary possession of the plaintiff? OPP

3. When has cause of action accrued to the plaintiff? OPP

4. Whether Mohammad Rather deceased had sold a part of the suit land to the defendant? OPD

5. Whether Mohammad Rather deceased had executed a will in favour of his adopted daughter in respect of a part of the suit land? OPD

6. Finally, to what relief is the plaintiff entitled?

4) After trial of the case, the learned Munsiff, Ganderbal, vide his judgment dated 28.08.1974 decided the suit and declared that the plaintiff is owner of 02 kanals and 18 marlas of land in his capacity as adopted son of Mohammad Rather whereas defendant and his daughter Mst. Rehti are owners of the rest of the suit land. However, the relief relating to injunction was refused to the plaintiff.

5) The aforesaid judgment came to be challenged by the defendant by way of an appeal before the Court of Sub Judge/CJM, Srinagar, who, vide judgment dated 19.09.1977 upheld the findings of the trial court in respect of all the issues excepting issued No.4, quoted above. The suit was remanded to the trial court for decision on issue No.4.

6) The learned trial court in the light of the observations of the Appellate Court passed a fresh decision on 03.09.1983 and held that issued No.4 is required to be decided against the defendant as he has failed to discharge the burden. The trial court vide its judgment dated 03.09.1983 finally passed a decree holding that out of the total suit land of 12 kanals, the plaintiff is owner in possession of 03 kanals of the land in his capacity of adopted son of Mohammad Rather whereas Mst. Rehti is owner of 03 kanals of the suit land.

7) The aforesaid judgment passed by the trial court was assailed by the defendant by way of an appeal before the Court of learned Additional District Judge, Srinagar, on 24.10.1983. The learned Appellate Court dismissed the appeal vide judgment dated 12.08.1987. The said judgment was assailed by the legal heirs of the defendant by filing a second appeal before this Court on 09.11.1987, primarily, on the ground that under Mohammadan law there is no concept of adoption and will but this aspect of the matter has not been taken note of by the 1st Appellate Court.

8) The aforesaid second appeal filed by the legal heirs of the defendant was dismissed by this Court by virtue of judgment under review on 14.11.2006. While dismissing the appeal, this Court observed that no substantial question of law arises in the present case. It has been held that findings on issue Nos.1to 3 and 5 have attained finality because the defendant has failed to assail the said findings after the same were upheld by the 1st Appellate Court (Sub Judge/CJM, Srinagar) in the first found of litigation. It has also been observed in the judgment under review that there is no perversity in the findings recorded by the trial court as affirmed by the Appellate Court as regards issue No.4 framed