This civil., revision assails the judgment/order dated 11.11.2002 passed by the learned Additional District Judge, Kasur, whereby an application under Section 12(2) CPC filed by the respondent was accepted and the case was remanded to the trial Court for settling the share of the petitioner with respondent after impleading him as a party.
2. Precisely relevant facts are that the petitioner filed a suit for declaration and permanent injunction as consequential relief claiming that she is owner in possession of the land measuring 87 kanals 5 marlas detailed in the plaint She pleaded in her plaint that land in dispute was allotted to her mother Mst. Jhando, on whose death she inherited (1/2) share but in the mutation of inheritance she was deprived of her share and instead it was sanctioned in the names of Muhammad Ismail and Mst. Ganjan alias Rajan, it was done vide the Mutatie No, 682 dated 26.11.1989 whereby Ismaeel got inheritance to the extent of 7/12 share which was asserted to be against the law, illegal and ineffective quo her rights. The petitioner also challenged mutation of oral Sale No, 691 dated 16.12.1989 as factually incorrect, having been sanctioned beyond the- ownership of the vendor. The petitioner/plaintiff pleaded that Mst. Jhando was allotted certain land in village Wan Khara, Chunian, under settlement Scheme, whereas she was allotted some land in village Bheel against her un allotted claim according to petitioner Mst. Jhando died prior to allotment and mutation of her inheritance was sanctioned on 29.11.1951 in favour of Mst. Gangan to the extent of 5/12 share and her husband Ismaeel to the extent of 7/12 share but this mutation was incorrectly sanctioned .because the petitioner being her daughter was alive at that time and was entitled to her 'A Sharai Share but was incorrectly deprived of her right of inheritance. She filed appeal before the collector which was dismissed being barred by time and a revision petition there against was accepted by the Commissioner vide order dated 1.11.1971 and remanded the case to the Collector for fresh decision. In the post remand proceedings Mutation No 25 was sanctioned on 25.2.1976 wherein, the petitioner was given her her Sharai right and remaining half was divided among Ismaeel Mst. Gangan her husband and mother, and residue was given to Ibrahim etc. as collaterals. The order of Revenue Officer dated 5.2.1976 sanctioning mutation in favour of the petitioner was appealed but it failed. Ibrahim and others filed a revision petition which was also dismissed on 12.12.1977 Collaterals then filed Civil suit without any success and their appeal was dismissed vide judgment and decree dated 2.6.1987.
3. Mutation of Inheritance No, 25 regarding estate of Mst. Jhando in village Wan Khara, Chunian attained finality but the petitioner was not given her share in the estate of Mst. Jhando her mother in village Bheel District Kasur. Petitioner kept on contesting the matter regarding her right with regard to land in village Bheel but pending it her father Ismaeel, and husband of Mst. Jhando died and mutation of his Inheritance No 682 was sanctioned on 26.11.1989 wherein, his 7/12 share from his wife Mst. Jhando, was also included. The petitioner was given share in Mutation No 682 as daughter of Ismaeel to the extent of A. In the meanwhile share Mst. Ganjan also died issueless and the petitioner inherited her property as her sole heir. In this manner the petitioner became owner to the extent of (1/2) share + 1/8 shareinherited by her from her father Ismaeel and 1/6 share of the property which was held.by Mst. Ganjan her maternal grand mother collectively she got 7/8 share but in the revenue record her share was shown as less decreasing her holding but increasing ownership of Ibrahim etc to 7/24 share instead of 3/24.
4. The suit of the petitioner was contested and controversial pleadings of the parties led to framing of issues. The learned trial Judge who was seized of the matter after recording the evidence of the parties decreed the suit of the petitioner vide judgment and decree dated 16.3.1993.
5. Ibrahim and Bania who were defendants in the suit, died pending its trial and their descendents Iqbal etc. filed an appeal against the decision of the trial Court dated 16.3.1993 which was ultimately dismissed on 19.9.2000.
6. The respondent on 7.2.2002 filed an application under Section 2(2) CPC before the learned.
Additional District Judge challenging both the judgments and decrees dated 16.3.1993 and 19.2.2000 passed by the trial Court, as well as by the appellate. Court, respectively. The petitioner contested this application by filing her written reply but the learned 'Additional District Judge vide judgment/order dated 11.11.2002 accepted the application of the respondent and remitted the case back to trial Court for determination of share of the petitioner. The petitioner filed the instant revision petition challenging the judgment/order dated 11.11.2002 wherein, the respondents was served and was represented through his two counsel namely Mr. Muhammad Jamil Chaudhary Advocate, and Mr. Riaz Ahmad Dar, Advocate, who inspite of appearance of their names in the daily cause list, have not appeared to defend this petition the whole day, hence the respondent is proceeded against ex-parte.
7. The learned counsel for the petitioner submits that though the application under Section 12(2)
CPC filed by the respondent was incorrectly accepted by the learned Additional District Judge yet he-could only set aside the appellate judgment passed against him whereafter original appeal would have revived for decision. According to him, the learned Additional District Judge, neither could accept the appeal straightway nor he could set aside the judgment and decree of the trial Court, reviving the suit for trial, in the manner he has done. It is further- submitted that the learned Additional District Judge, has not applied his mind to the case and has erroneously set aside the decrees, one in appeal; and other in the suit.
8. I have anxiously considered the arguments of the learned counsel for the petitioner and have examined the record, appended. herewith. The respondent only filed application under Section 12(2) CPC before the Appellate Court challenging both the decrees passed in appeal as well as in the suit, being misrepresented, fraudulent and without jurisdiction but the Appellate Court could only adjudicate this application to the extent of its own decree and after acceptance of application under Section 12(2) CPC the appellate decree stood vanished with the result that the appeal before it became alive. The appeal after becoming alive was to be decided after hearing the parties, thereto, in accordance with law but this course was not adopted and instead straightway the judgment and decreed, dated 5.6.1990 passed by the trial Court was also set aside. The Appellate Court without adjudication on appeal and without consciously accepting the appeal, could not set aside the decree of the trial Court. It appears that the learned additional District Judge was in some hurry on account of which he also opted to discuss the merits of the suit in Paragraph 8 of his judgment without any legal warrant because after acceptance of application under Section 12(2)
CPC the appeal was not decided by him. Under law, after acceptance of application under Section 12(2) CPC all the parties to appeal were to be heard but this was not done illegally.
9. For what has been discussed above, I am constrained to hold that the course adopted by the Appellate Court was not permissible under law and it exercised a jurisdiction legally not vested in him because the case was sent back to trial Court by setting aside its judgment and decree without adjudication on appeal. The judgment/order dated 11.11.2002 is not only tainted with illegalities and irregularities envisaged by Section 115 CPC but is also void being opposed to law thus the same is not maintainable. This revision petition is consequently accepted and the judgment/order dated 141.11.2002 is set aside with the result that the appeal before the learned Additional District Judge filed by the descendants of Ibrahim etc. i,e, Iqbal etc. shall be deemed to be pending and it will be decided afresh after hearing the parties, in accordance with law. There will be no order as to costs. The parties are directed to appear before the learned Additional District Judge Kasur on 8.6.2004.