' MIAN SAQIB NISAR, J.---The petitioner Shahnaz Kausar brought a suit for partition etc. Against the respondents, of properties mentioned in the plaint. The suit was resisted by the respondents. Issues were framed, parties were put to trial and the case was decreed by the learned Civil Judge on 2- 12-2004. Against the above, the respondents prefeirred an appeal, which has been accepted and while framing two additional issues the matter has been remanded to the learned trial Court for recording evidence upon the above and deciding the matter afresh.
2. Learned counsel for the petitioner states that the remand of the case has been founded on two grounds; firstly, that some application under section 12(2), C.P.C. Has been moved by the petitioner challenging a decree obtained by respondents Nos.1 and 2 against Sultan, Nosheen and Babar (deceased), the other brothers and sisters of the parties; secondly, the respondents in their written statement have taken up the plea that the father of the parties had paid an amount of Rs,4,75,000 to the petitioner are her would be share in his estate and she had accordingly relinquished such share, but the learned trial Court has failed to frame any issue. As mentioned earlier, issues were accordingly framed and the matter was remanded.
3. Learned counsel for the petitioner contends that the application under section 12(2). C.P.C. Filed by the petitioner has been dismissed for non-prosecution on 9-12-2005, in this behalf he has placed on record attested photo copy of the said order and that the application has not been got restored so far. The petitioner has even no intention to pursue such application any further.
Obviously in the light of the above, the reasoning of the learned Appellate Court regarding the effect of the pendency of the application under section 12(2), C.P.C. Has become redundant.
4. As far as the other reason of remand, suffice it to say that the learned trial Court while giving its finding on issue No,6 has dealt with the question/the plea of the respondents about the payment of Rs,4,75,000 by the father of the petitioner and has held that the fact has not been proved by the respondents. The respondents even at no point of time during the trial had asked for the framing of any issue in this behalf. When the decree was passed against them, in the memo. Of appeal it is not a ground that on account of non-framing of the said issue any prejudice has been caused to them, therefore, I am of the view that A the learned trial Court has rightly dealt with the above plea under issue No,6, which is quite comprehensive and the respondents had also led evidence deeming it to be the issue covering their plea about the payment of amount to the petitioner and alleged relinquishment of share by her. Therefore, instead of framing any additional issue the Court should have decided the matter itself on the basis of the evidence on record. Resultantly, by allowing this revision petition the judgment and decree of the learned Court of Appeal being perverse of jurisdiction and suffering from material irregularity cannot be sustained, which is hereby set-aside and the matter is remanded to the learned Appellate Court to decide the case afresh.
' Before parting it may be observed that the plea raised by the petitioner that respondents' appeal was incompetent because the decree sheet had not been filed along with the appeal, suffice it to say that the issue must be raised before the learned Appellate Court, which shall decide the objection in accordance with law, and is not called for decision over here.