' MIAN HAMID FAROOQ, J.---Briefly stated the facts, relevant for the decision of the present revision petition, are that the respondent No,1 filed a suit for partition of a house, against the petitioner claiming to have devolved upon the legal heirs of Muhammad Anayat, deceased. Later on, the petitioner also filed a suit for declaration regarding the same house, thereby challenging the gift and sale deed. Both the suits were resisted by the respective parties by filing the written statements and the learned trial Court, after consolidation of the said suits, framed consolidated issues. The parties led their evidence and the learned trial Court decreed the suit for partition filed by the respondent No,1 and dismissed petitioners' suit for declaration, vide judgment and decree dated 27-11-1997, which was, however, set aside by the first appellate Court and the case was remanded to the learned trial Court. In post-remand proceedings, the learned trial court passed a preliminary decree in favour of the respondents, while petitioner's suit was dismissed vide consolidated judgment and decree dated 25-3-2000. The petitioner felt aggrieved and assailed the said judgment before the learned appellate Court but without any success as his appeal was also dismissed by the learned Additional District Judge, vide judgment and decree dated 25 2- 2003 hence the present revision petition.
2. Learned counsel for the petitioner has contended that the disputed house was mortgaged in favour of House Building Finance Corporation and without the payment of the "dues" of the Corporation, the house cannot be partitioned. He has further submitted that the house already stood partitioned by way of family settlement, which deed is not compulsorily registerable under section 17 of Registration Act. He has added that the agreement can be proved through producing only one witness and that the impugned judgment and decree suffers from misreading and non- reading of evidence.
' Conversely, learned counsel for the respondents, while refuting the aforenoted contention, has submitted that the Corporations has issued a certificate in favour of the predecessor-in-interest of the parties, namely Muhammad Anayat, certifying therein, that no amount is outstanding, however, if any amount is still outstanding that can be paid at the time of the passing of the final decree. He has further submitted that the house was never partitioned through deed of family settlement which doeument has no legal value. He has reinforced his arguments by adding that concurrent findings of facts are not liable to be interfered by this Court in exercise of its revisional jurisdiction.
3. Notwithstanding the arguments of the learned counsel, upon the examination of the record, I find that one of the parties filed an application, seeking permission to produce two notices issued by House Building Finance Corporation, in additional evidence but the learned lower appellate Court thought it fit in its wisdom not to decide the aforenoted application at an appropriate stage and before the decision of the appeal. Later on while finally deciding the appeal on 25-2-2003, not only the aforementioned application was rejected, but the appeal, filed by the petitioner, was also dismissed. From the perusal of the impugned judgment, it is evident that the learned lower appellate Court dismissed the application under discussion through its findings rendered in Para 12 of the judgment and while coming to the conclusion that the prayer made in the application cannot be acceded to, dismissed the said application. Fact remains that the learned appellate Court neither adjudicated upon the aforesaid application nor decided the same before disposing of the appeal and proceeded to decide the same along with the appellate main appeal.
4. Upon the examination of the judgment reported as Muhammad Umar v. Muhammad Qasim and another (1991 SCM R 1232), I am of the view that the procedure adopted by the learned appellate Court in the present case while deciding the application for permission to lead the additional evidence as well as the main appeal through a composite judgment, is not sustainable in law and the same is in violation of the law declared by the Hon'ble Supreme Court' of Pakistan in Muhammad Umar' s case (ibid). I find that the dictum laid down by the Hon'ble Supreme Court of Pakistan in respect of the decision of application for the grant of additional evidence prior to the decision of the main appeal is completely applicable and attracts to the facts of the present case.
In the aforenoted case of Muhammad Umar, the apex Court of the country, after coming to the conclusion that where an application for production of additional evidence was filed before the appellate Court, it ought to have been adjudicated upon and decided before disposing of the main appeal, remanded the case to the learned appellate Court to decide the matter afresh.
5. Being guided by the law laid down in the aforenoted case of Muhammad Umar, which in my view is fully applicable in the present case, I am constrained to hold that the learned appellate Court has not followed the law declared by the Hon'ble Supreme Court of Pakistan in deciding the aforenoted application before disposing of the main appeal, therefore, the impugned judgment is not sustainable in law and as such I am inclined to interfere in the judgment rendered by the learned appellate Court.
6. So far as the respective contentions raised by the learned counsel for the parties as I am inclined to remand the case for its decision afresh, therefore, I have deliberately refrained from giving any findings, on the contentions raised on behalf of the parties, as those findings may prejudice the cause of either of the parties before the learned appellate Court, as after the remand, the entire case would be reopened before the learned District Judge, who shall, of course, decide the matter afresh and the parties may, if they so choose, raise all the contentions before the learned District Judge, if permissible under the law.
7. In view of the above reasons and discussion without going into the merits of the case and dealing with the contentions of the respective parties, I am of the view that this is the fit case for the exercise of revisional jurisdiction of this Court therefore, I deem it proper to remand the case to the learned appellate Court to decide the appeal afresh as per observations/directions given hereinafter as per the law declared by the Hon' ble Supreme Court of Pakistan.
8. Upshot of the above discussion is that the present revision petition stands accepted and the judgment and decree dated 25-2-2003 passed by the learned Additional District Judge Jhang is hereby set aside with no order as to costs. The result would be that appeal titled "Ghulam Shabir v; Ghulam Sarfraz and others" as well as application for permission to lead additional evidence, both filed by the petitioner, shall be deemed to be pending before the learned District Judge, Jhang, who while following the law laid down by the Hon' ble Supreme Court of Pakistan Muhammad Umar's case (supra), shall first decide the application, under Order XLI, rule 27 C.P.C., for permission to lead the additional evidence, afresh, in accordance with law And after hearing the parties. After the decision of the said application the learned District Judge, Jhang, shall proceed to decide the main appeal, in accordance with law, being unimpressed by any of the findings given by this Court, preferably within a period of two months from the receipt of this order.