' Petitioners/plaintiffs, through the filing of the present S revision petition, have called in question judgment dated 17-7-1995, whereby the learned first Appellate Court accepted respondent's appeal, remanded the case and set aside the judgment and decree dated 24-11-1991, passed by the learned trial Court, through which it decreed the suit of the petitioners.
2. Necessary facts of the case, as discernible from the available record, are that the petitioners filed a suit, thereby claiming declaration that they are owners in possession , qua the suit-land, on account of their prescriptive title and alleging therein that the land measuring 45 Kanals and 7 Marlas was mortgaged by one Kalu son of Gulab Din in favour of Faqir Muhammad, predecessor- in-interest of the petitioners, through Mutation No.43 attested on 21-12-1924. The claim of the petitioners was that as they remained in uninterrupted possession of the suit-land for more than 60 years, therefore, mortgagee rights have matured into the prescriptive title qua the suit-land. The respondents contested the suit through filing the written statement, thereby submitting that Partap Singh, evacuee, mortgaged the land measuring 41 Kanals in favour of Kalu son of Gulab Din and subsequently, Kalu transferred his mortgaged rights in favour of Faqir Muhammad The respondents filed an application before the Collector for the restitution of the suit-land, which was dismissed on 20-1-1990. Out of the divergent pleadings of the parties, the learned trial Court framed the necessary issues, recorded the evidence of the parties and ultimately decreed the suit, vide judgment and decree dated 24-11-1991. The respondents challenged the said judgment and decree before the appellate forum and the learned Additional District Judge accepted their appeal and remanded the case to the learned trial Court for deciding the same afresh after impleading Government as party vide judgment dated 17-7-1995, hence the present revision petition.
3. The learned counsel for the petitioners has submitted that as there was sufficient evidence on record, therefore, the remand could not be ordered. He has relied upon Chairman, WAPDA, Lahore and another v. Gulbat Khan 1996 SCM R 230 and Roazi Khan and others v. Nasir and others 1997 SCM R 1849. He has further submitted that the respondents did not take the plea, about the non- impleadment of the Government, in their written statement, therefore, they are estopped to take the said plea before the appellate forum. He has added that Government is neither necessary nor proper party in this case. Conversely the learned counsel for the respondents, while supporting the impugned judgment, has submitted that since the property has been declared as evacuee property, therefore, the Government is necessary party and thus the impugned judgment is not open to exception.
4. Upon the examination of the available record, I find that after framing the issues, both the parties produced oral as well as documentary evidence. The petitioners produced documents, which were exhibited as Exhs.P.l to P.13, while the respondents in rebuttal tendered the documentary evidence, which was exhibited as Exhs.D.1 to D.5. In addition to the above both the parties produced oral evidence. Upon the examination of the evidence on record, I find that there was sufficient evidence available on record on the basis of which the appeal could easily be decided. It is settled law that nobody can ask for the remand of the case. The learned Appellate Court instead of remanding the case, should have decided the matter on the basis of preponderance of evidence produced by both the pities. The learned counsel for the petitioners has rightly relied upon the cases of Chairman, WAPDA, Lahore and another and Roazi Khan and others (ibid), wherein it has been held that the remand of the case is not a routine matter and it should be adopted, when compelling circumstances exist, otherwise unnecessary delay in the proceedings would result.
5. It is not discernible from the impugned judgment record that on the basis of which evidence, the learned Additional District Judge has held that the property vests in the Government as owner subject to mortgagee rights. The only basis on which the learned Additional District Judge thought it fit to remand the case is that the Government is necessary party. I have examined the record and find that there is no evidence on record, which would suggest that either the property vests with the Government or/and the Government is necessary party. In view of the present set of circumstances, to my mind the Government is neither necessary nor proper party, therefore, it could not be impleaded as party in the suit. Additionally, no such plea was raised by the respondents either before the learned trial Court or before the Appellate Court and it appears to be the brain wave of the learned Additional District Judge.
6. The learned Additional District Judge has held that the limitation period against the Government is 120 years for redemption. I have not been able to find out any article in Limitation Act, which provides that limitation period against the Government for filing suit for redemption is 120 years.
The learned counsel for the respondents could not substantiate the said findings of the learned Appellate Court.
7. In the above perspective, I have examined the impugned judgment and find that the same is not sustainable in law and the learned Additional District Judge, while rendering the impugned judgment, has definitely committed illegality and material irregularity, thus there is ample justification for the invocation of the revisional jurisdiction in this case, which I am inclined to exercise.
8. Upshot of the above discussion is that the present petition is allowed and the impugned judgment dated 17-7-1995 is set aside with no order as to costs. Result would be that the respondent's appeal titled "Abdul Ghani and others v. Muhammad Shafi and others" shall be deemed to be pending before the learned Additional District Judge Sialkot, who shall decide the same, afresh, after hearing the parties and of course in accordance with law.