' MUHAMMAD KHALID MEHMOOD KHAN, J.---These two civil revision are directed against the one judgment passed by the learned Addl. District Judge Kasur on 10-10-2001. As these two civil revisions are against the same judgment, so I propose to decide these two revision petitions through a single judgment.
2. Briefly stated the facts are that the legal heirs of one Qaisar-ud- Din Khan son of Shuja-ud-Din Khan who died in 1983 filed a suit for declaration and permanent injunction with consequential relief claiming that their predecessor in interest was allotted land measuring 103 Kanals 12 Marlas vide R.R. II in District Kasur in the year, 1957, the said land was confirmed in his name and he was cultivating the same through his tenants. During consolidation proceedings in the village, the name of their predecessor in interest was recorded in "Misal Haqiyat" in Khewat No,96. One Dhope filed a Mukhbari application under the then Settlement Laws with the Additional Settlement.
Commissioner for cancellation of land from the name of their predecessor in interest. The name of petitioner's predecessor-in-interest was shown as Qaisar-ud-Din son of Bahadur Khan. The application was allowed by the Additional Settlement Commissioner Lahore and land was cancelled from the name of one Qaisar-ud-Din Khan son of Bahadur Khan vide order dated 4-5- 1968. Pursuant to the said cancellation order the land was confirmed on 26-11-1969 vide Mutation No,370 in the name of respondents/MukhbaRs, The, order dated 26-11-1969 was challenged through a suit claiming that the order is illegal, ultra vires, void ab initio, ineffective and unwarranted by law and as such is ineffective against the rights of the petitioners, It was averred that name of the petitioner's predecessor-in-interest was Qaisar-ud-Din son of Shuja-udDin and cancellation order pertains to Qaisar-ud-Din son of Khan Bahadur. It was alleged that the petitioner filed an application with the Collector Kasur for correction of Revenue record of the land allotted to Qaisar- ud-Din son of Shuja-ud-Din and prayed for review of Mutation No,307 dated 26-11-1969. The Deputy Settlement Commissioner/ Collector disallowed this application and directed the petitioner to approach civil court for resolution of the dispute, hence, the suit was filed.
3. The respondents Nos.1 and 2 filed the written statement and challenged the jurisdiction of civil Court claiming that the original order of the Additional Commissioner was not challenged and as such the suit of the plaintiff, is barred by time. In addition to these objections number of other objections were raised by respondents Nos.1 and 2. The respondents Nos.3 and 4 filed separate written statement and challenged the maintainability of the suit and claimed that the suit-land was rightly cancelled from the name of predecessor in interest of the petitioner i.e Qaisar-ud-Din Khan son of Shuja-ud-Din Khan. Estoppel by words and conduct was also pleaded by respondents.
They have pleaded that suit-land after cancellation from the name of Qaisar-ud-Din Khan son of Shuja-ud-Din Khan were transferred by the allottees to number of persons, who have not been impleaded as party in the suit. Their case was that the name of predecessor-in-interest of petitioner was mentioned as Qaisar-ud-Din son of Khan Bahadur through a clerical mistake and Qaisar-ud-Din son of Shuja-ud-Din Khan are one of the same person. An inquiry allegedly was conducted by Illaqa Magistrate Chunian on 16-10-1991 which confirms that there was no other person having the name of Qaisar-ud-Din son of Khan Bahadur as land owner in the village.
4. Out of pleadings of the parties, the learned trial Court framed the following issues:-- "Issues:
(1) Whether this court has no jurisdiction to try this suit? OPD
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the suit is time-barred? OPD
(4) Whether the plaintiffs are estopped by their own act and conduct from filing the suit? OPD
(5) Whether the suit is bad for non-joinder of necessary parties? OPD
(6) Whether the suit valuation for the purpose of court-fee and jurisdiction is incorrect? If so what is correct valuation? OP Parties.
(7) Whether the defendants are entitled to special costs under section 35-A of C.P.C.? OPD
(8) Whether the order dated 26-11-1969 is illegal, void and inoperative and the plaintiffs are entitled to the decree as prayed for? OPP
(9) Relief.
5. The learned trial Court dismissed the suit vide judgment and decree dated 7-12-1998. The petitioners assailed the said judgment and decree through an appeal, which was allowed by the learned appellate Court vide judgment and decree dated 10-10-2001 and remanded the suit to the learned trial Court for fresh decision after providing opportunity to the petitioners to implead the necessary party to the suit and to challenge the orders of Additional Settlement Commissioner, Lahore.
6. Both the parties have assailed the remand order dated 10-10-2001 through two separate revision petitions.
7. The learned counsel for the petitioner in Revision Petition No,1274 of 2002 submits that the impugned order is illegal, against law and facts. The learned court has erred in law by allowing the appellant to amend the plaint and to, implead the necessary parties i.e, the subsequent purchaser of the land. The respondents/plaintiffs never applied to the learned trial Court for amending the plaint, but the learned trial Court while exercising the powers, which are not vested in him has passed the impugned order. He further submits that the, order of Additional Settlement Commissioner has attained finality as the respondents/ plaintiffs have not challenged the said order and opted to file revision petition against the order dated 26-11-1969. He submits that allowing the petitioner/appellant to amend the plaint amounts to set up a new case which is against the spirit of law. It is further submitted that the impugned order is hit by the spirit of Order XLI, Rules 24 and 25 of the Code of Civil Procedure. Lastly submits that the order impugned is nullity in the eye of law.
8. Learned counsel for the respondents supports the judgment of learned triaL Court, but prayed that the learned appellate Court should have accepted the appeal, as it was proved on record that the impugned order passed by the Collector was against the facts. He further submits that sufficient evidence and material was available on record to establish that Qaisar-ud-Din Khan son of Shuja-ud-Din Khan and Qaisar-ud-Din Khan son of Khan Bahadur are two different persons and the application for cancellation of allotment was moved against Qaisar-ud-Din son of Khan Bahadur and the order dated 4-5-1968 pertains to said Qaisar-udDin son of Khan Bahadur. It is admitted by the defendants in suit that Dhopi filed Mukhbari application against Qaisar-ud-Din son of Khan Bahadur and not against Qaisar-ud-Din son of Shuja-ud-Din. The D.W.3 has further admitted that there was no person of the name of Qaisar-udDin Khan son of Khan Bahadur but he was called "Khan" he has knowledge that Qaisar-ud-Din's father name is Shuja-ud-Din, himself said he was called Khan Bahadur. He further submits that the impugned order dated 4-5-1968 was without the knowledge of their predecessor in interest and as such he was condemned .Unheard.
Lastly he adds that there is no limitation against the void order.
9. The controversy between the parties as per available record is only one point i.e, the name of petitioner's predecessor in interest. They claimed that his name was Qaisar-ud-Din Khan son of Shuja-ud-Din Khan and the Mukhbari application was filed by the petitioner/defendant against Qaisar-ud-Din Khan son of Khan Bahadur. According to the version of respondent/plaintiffs that Qaisar-ud-Din Khan son of Shujaud-Din Khan are two different independent persons. The suit-land was allotted to Qaisar-ud-Din Khan son of Shuja-u-Din and as such the cancellation order was not meant for respondent/plaintiff's predecessor.
' The Additional Settlement Commissioner without summoning the predecessor in interest of the respondent/plaintiff cancelled the mutation and when he came to know about the said cancellation, he filed an application for correction in the Revenue Record. The Collector was bound to hold an independent inquiry before dismissing the application for correction of record. The petitioners'/respondents' claim is that Qaisar-ud-Din Khan son of Khan Bahadur and Qaisar-ud- Din Khan son of Shuja-ud-Din are one and the same person and at the time of allotment of land the name of father of Qaisar-ud-Din Khan was wrongly mentioned in the Revenue Record and the cancellation order on the application of Dhope was against the predecessor in interest of respondents/plaintiffs. The learned appellate court came to the conclusion from the evidence available on record that the respondents/ plaintiffs were non-suited only on the ground of non- joinder of necessary parties, who are the subsequent purchaser of land from the Mukhbar. If the learned trial Court was of the view that necessary parties have not been impleaded in the suit, he should have given time to the petitioners to implead the necessary parties and as such non- providing of the opportunity to the respondents/plaintiffs ended in a grave injustice. The civil Court if was of the opinion that principal order dated 4-5-1968 has not been challenged through the suit, but the Mutation No,370 dated 26-11-1969 was pursuant to the order dated 4-5-1968 hence, it was the duty of the learned trial Court to provide opportunity to the respondent/plaintiffs to amend its plaint. The learned appellate court has not touched the findings of facts and rightly so because the learned appellate court came to the conclusion that suit suffers from non-joinder of necessary parties and as such the opportunity should have been given to the petitioner to amend the plaint and implead the necessary parties to the suit.
10. Perusal of issues further shows that no issue has been framed by the learned trial court on the real controversy between the parties, which is the identity of a person namely Qaisar-ud-Din Khan son of Shuja-udDin Khan or Qaisar-ud-Din Khan son of Khan Balladur. The real controversy between the parties is the identification of a person. The respondents/plaintiffs claim is that Qaisar-ud-Din Khan son of Khan Bahadur and Qaisar-ud-Din Khan son of Shuja-ud-Din Khan are two different persons and the Additional Settlement Commissioner has passed the cancellation orders of land against Qaisar-ud-Din Khan son of Khan Bahadur and as such the land allotted to the respondent/plaintiff's predecessor-in-interest could not be cancelled, if the petitioners succeeded to prove that Qaisar-ud-Din Khan son of Khan Bahadur and Qaisar-ud-Din Khan son of Shuja-ud-Din are two different persons, then the suit of the plaintiff is bound to succeed. The learned trial court has D failed to frame the most relevant issue of real controversy between the parties and opted to dismiss the suit purely on the ground of non-joinder of necessary parties.
Further claim of the respondents/plaintiffs is that the order dated 4-5-1968 passed by Additional Commissioner was without notice to them and as such they have suffered loss for the fault of Additional Settlement Commissioner. The learned trial court should have framed the issue on this point as well. No doubt the 'learned civil court has framed the Issue No,8 on the legality of order dated 26-11-1969, but while deciding this issue, the learned trial court was influenced by his findings on issue No,5. Even if for the sake of argument if it is admitted that the order dated 26-11-1969 was legal, but the main controversy remained unanswered. The order dated 4-5-1968 was against Qaisar-ud-Din Khan son of Khan Bahadur and as such unless the controversy about the identity of Qaisar-ud-Din Khan son of Khan Bahadur and Qaisar-ud-Din Khan son of Shuja-u-Din Khan is resolved, no effective decree could be passed. The learned appellate Court has rightly come to the conclusion that the petitioner should have been allowed to implead the necessary parties to the suit and to amend the plaint.
11. In view of above said discussion in my humble view an issue regarding the identity of Qaisar-ud- Din Khan son of Shuja-u-Din Khan is necessary to be framed. I am in agreement with the learned appellate Court, that respondent/plaintiff be allowed to implead the necessary parties and further direct the learned trial court to frame issue regarding the identity of Qaisar-ud-Din Khan son of Khan Bahadur and Qaisar-udDin Khan son of Shuja-ud-Din.
12. In view of above, the Revision Petition No,726 of 2002 is allowed partially and the impugned order dated 10-10-2001 is modified to the extent that learned trial court will frame the issue regarding the identity of predecessor in interest of respondent/plaintiffs and the Revision Petition No, 1274 of 2002 is dismissed. There is no order as to costs.