MIAN HAMID FAROOQ, J.--- Precisely stated facts, relevant for the decision of the present revision petition,' are that the respondent filed the suit of partition, possession and permanent injunction, against the petitioner, qua the questioned property, which was resisted by the petitioner through filing the application under Order II, Rule 2 read with Section 12(1) and Section 151, CPC. The learned Trial Court accepted the said application and rejected the plaint, in exercise of its powers conferred under Order VII, Rule 11, CPC, finding therein that the respondent has no cause of action and the suit is barred under the provisions of Order II, Rule 2 and Section 12(1), CPC, vide order dated 13.7.1999.
The respondent challenged the said decision, through filing the appeal, wherein on an objection raised by the petitioner, the respondent filed an application under Section 5 of the Limitation Act for the condonation of delay. The learned Addl. District Judge, after hearing the parties, dismissed the appeal on different reasons than the learned Trial Court and granted permission to the respondent to file the suit for possession regarding 3 marlas of land, vide impugned judgment dated 16.12.1999, hence the present revision petition.
2. Despite notice for today, none has entered appearance to defend this revision petition, hence the respondent is proceeded ex parte.
3. Learned counsel for the petitioner has submitted that the appeal filed by the respondent was barred by time and that the learned Addl. District Judge, while granting permission to the respondent to file the suit for possession has acted in the exercise of his jurisdiction illegally and with material irregularity.
4.
1. I have examined the impugned judgment and
5. Find that the learned first Appellate Court, in complete oblivion of the pleadings of the parties, has held that in such a case simple case of possession would be maintainable; the present suit is not in proper form and has also allowed the respondent to file the suit for possession, as and when required. It would be appropriate to reproduce the concluding portion of the impugned judgment, which reads as follows:-- "Actually when construction was made by Najma Qazi then the present appellant was in cordial terms with Najma Qazi then the property of appellant was encroached upon by Najma Qzzi to the extent of three marlas. Three marlas which are in possession of Najma Qazi and in ownership of Abdul Hakeem can be claimed by way of suit for possession after demolition of construction made thereon. In such a case a simple case for possession would be maintainable and present suit is not in proper form.
Only the form of the suit is incorrect and that is only to the extent of claim of partition. Simple suit for possession can be filed as and when required by Abdul Hakeem Qazi.
9. With these observations, the appeal is devoid of any force and the same is hereby dismissed. My reasons for dismissed of appeal are entirely different than that of judgment and decree of learned Trial Court, recorded above. There is no order as to costs. File of learned Trial Court be sent back immediately. This Court be consigned to the record room after necessary completion."
5. After examining the available record in juxta- position with the findings of the learned first Appellate Court, as noted above, I am of the view that the learned Appellate Court has set up a different case for the respondent, which was never pleaded by him. Additionally, the learned Addl. District Judge has allowed the respondent to file a suit for possession, as and when required, giving the respondent unlimited period to avail his remedy of possession, which, to my mind, is not permissible under the law. The impugned judgment is violative of the law laid down by the Hon'ble Supreme Court of Pakistan in the case reported as Mst. Jannat Bibi v. Sher Muhammad and others (1988 SCM R 1696), a portion relevant to this case is reproduced below:-- "From the judgment of the High Court it appears clearly that both parties had set up different versions of the nature of the s j 1 family settlement, resulting in the mutations as attested by the Revenue Authorities upon the death of Islam. The learned Judges rejected both versions set up by the parties. In civil proceedings a party is not permitted to deviate from his or her pleadings, nor can the Court set up a different plea for a party and decide the suit on that basis, much less at the appellate stage."
6. The impugned judgment, as noted above, is in conflict with the law declared by the Hon'ble Supreme Court of Pakistan, therefore, I have no hesitation in setting aside the same, which I hereby do.
7. Upshot of the above discussion is that the present revision petition is allowed and the impugned judgment dated 16.12.1999 is set aside and that of the learned Trial Court is restored. No order as to costs.
Civil .