' RAUF AHMAD SHEIKH, J.---The petitioner has assailed the vices of judgment and decree dated 11- 4-2000 passed by the learned Additional District Judge, Ferozwala, District Sheikhupura, whereby he set aside the judgment and decree dated 19-9-1985 passed by learned Civil Judge, Ferozwala, decreeing a suit for declaration and possession filed by the petitioner/plaintiff against the predecessor of the respondents.
2. Lnayat, predecessor of the petitioners had contended that he alienated land measuring 5 Kanals and 14. Marlas from Khata No,41 situated at Mauza Marlpar, Tehsil Ferozwala, District Sheikhupura, as per Jamabandi for the year 1960-61 to Fazal Din, predecessor of the respondents through Mutation No,2411 dated 26-9-1963 for a sum of Rs,375. This Khata measured 91 Kanals and 5 Marlas and the plaintiff/predecessor of the petitioners was owner of 1/8th share so after sale of land in favour of the predecessor of the respondents, he was still qwner of land measuring 5 Kanals 14 Marlas but in the register of rights for the year 1964-65 inadvertently the total land of 1/8th share falling in Khata No,41 was shown to be owned by the predecessor of the respondents. It was contended that this mistake was repeated in the subsequent Jamabandis also. The defendant/predecessor of the respondents was directed to get this mistake rectified but he refused.
3. The suit was initially contested by the defendant/predecessor of the respondents. However, on 3- 11-1984 he made a statement that he had purchased land measuring 5 Kanals and 14 Marlas, which was enhanced during consolidation and if it is found that he is in possession of land more than the land purchased, he would relinquish the possession of the same but if it is found that he is in possession according to his entitlement on the basis of the land purchased, the suit be dismissed. It was prayed by both the parties that Halqa Patwari be appointed as referee and his report of demarcation in this respect be called for and the parties would be bound by the same. On this the learned trial Court appointed the Halqa Patwari as referee, who reported that the plaintiff was given land measuring 2 Kanals and 4 Marlas out of land measuring 16 Kanals and 10 Marlas left by his deceased father Sarbaland although he was entitled to half share of the land and that the defendant/respondents was given land measuring 20 Kanals more than his entitlement as per Misal-i-Haqiat for the year 1975-76, which according to the categorization comes to 51 Kanals and the plaintiff/ predecessor of the petitioners was entitled to recover possession of the same. On 19- 9-1985 the learned trial court after receiving the amended plaint for declaration and possession of land measuring 51 Kanals decreed the suit. This judgment was assailed by the predecessor of the respondents and the learned ADJ after hearing the parties set aside the impugned judgment and remanded the suit to the trial court for fresh decision strictly in accordance with law.
4. The learned counsel for the petitioners has contended that the learned ADJ erred in holding that the referee had committed any irregularity and as such the case-law relied upon was not applicable. It is stated that after agreeing to refer the matter to the referee, the defendant/predecessor of the respondents precluded from assailing the judgment and decree, which was passed in terms of the report of the referee so the learned ADJ committed material irregularity in setting aside the same although no lawful and cogent reason for it was available.
5. The learned counsel for the respondents has vehemently contended that the original suit was for possession of land measuring 5 Kanals, 14 Marlas and the reference was made in respect of the disputed land but then the learned trial court received the amended plaint for possession of land measuring 51 Kanals on 19-9-1985 and without seeking amended written statement proceeded on to pass the degree for the said land. It is stated that the reference was in respect of the land measuring 5 Kanals, 14 Marlas but the referee recorded the findings for possession of land measuring 51 Kanals and for this reason the learned trial court had ordered that the referee be summoned for clarification of the existing position but without asking for any clarification as to above difference proceeded on to pass the decree. It is contended that the learned ADJ has thus rightly set aside the judgment and remanded the suit.
6. The record vividly reveals that in the original plaint a decree for possession of land measuring 5 Kanals and 14 Marlas was sought but in the amended plaint filed on 19-9-1985 the prayer was made for possession of land measuring 51 Kanals and without requiring submission of amended written statement the learned trial court passed the judgment and decree in terms of the report of the referee. This was a material irregularity and illegality committed by the learned trial court.
' The referee had gone beyond his reference. The learned ADJ rightly noted that the learned trial court after summoning the Patwari without giving any finding as to this ambiguity proceeded on to pass the judgment and decree. The proper course was that the defendant/predecessor of the respondents should have been directed to file the amended written statement and then the findings should have been recorded as to correctness or otherwise of the report submitted by the referee before passing a decree in terms of the same. The judgment passed by the learned ADJ does not suffer from any illegality or infirmity. No irregularity causing miscarriage of justice has been committed. The revision petition is without merits and the same is hereby dismissed.