' CH. SHAHID SAEED, J.---Through the instant Civil Revision petitioner has challenged the impugned judgment and decree dated 20-12-2000 passed by learned Additional District Judge, Lahore by way of which he dismissed the appeal filed by the petitioner and up-held the decision made by the learned trial court by way of which suit filed by the respondent No,1 was decreed.
2. Brief facts of the case are that respondent No,1 filed a suit for declaration against the petitioner/defendant with the prayer that a decree for cancellation to the effect that the plaintiff is the owner in possession of the share of defendants Nos.3 and 4 in the property mentioned in para No,1 of the plaint and that defendant No,1 has no right, title or interest in it, sale deed dated 3-1-1980 to the extent of the share of defendants Nos.3 and 4 allegedly executed by defendant No,2 on the basis of forged and fictitious general power of attorney dated 19-12-1979 is illegal, void, ineffective, result of fraud, misrepresentation, fabrication, impersonation and not binding upon the plaintiff with consequential relief in form of permanent injunction restraining defendant No,1 from interfering in the rights of the plaintiff or changing its nature and character in any manner may be passed.
3. On 13-9-1986, conceding written statement purportedly on behalf of defendants Nos.3 and 4 was filed through counsel. Petitioner/ defendant appeared before learned trial court and contested the suit by tooth and nail while submitting his written statement. Out of the divergent pleadings of the parties, learned trial court framed necessary issues including relief. Both the parties got recorded their oral as well as documentary evidence. Learned trial court ultimately after hearing both the sides at length decreed the suit vide judgment and decree dated 30-9-1990. Petitioner preferred an appeal which was accepted and the case was remanded to the learned trial court with a direction to decide the same afresh in accordance with law. That after the remand of the case, on 6-4-1993, an application under Order VI Rule 17 was filed by the petitioner, the same was rejected by the trial court merely on the ground that the court could not go beyond the order of the appellate Court. That learned trial court vide judgment and decree dated 25-6-1995 again decreed the suit. Against the said judgment appeal was filed which was dismissed by the learned Additional District Judge Lahore vide judgment and decree dated 20-12-2000. Feeling aggrieved by both the judgments of both the courts below petitioner has filed the instant Civil Revision.
4. Learned counsel for the petitioner contends that the impugned judgments and decrees are against law and facts and also based upon mis-reading and non-reading of evidence; that the suit filed by the respondent No,1 was hopelessly barred by time because the period of limitation " to declare the forgery of an instrument issued or registered" or to "cancel or set aside an entrustment not otherwise provided for" is three years and the courts below were bound to dismiss the suit instituted much after the period of limitation prescribed in the relevant Articles (91 and 92) of the Limitation Act; that the suit was hit by section 42 of the Specific Relief Act, 1877 because the possession of the suit land having not been claimed by the respondent No, I. Further argued that according to the plaintiff's own claim Mst. Khurshid Bibi mother of defendants Nos.3 and 4 had been appointed guardian of their person and property and as such no sale of any properly owned by them could have been effected without permission of the court until the minors had attained the age of twenty-one years; that proper issues were not framed by the learned trial court; further maintained that application under Order VI Rule 17, C.P.C. Filed by the petitioner for amendment in the written has wrongly been dismissed by the trial court; that respondent No,1 has not proved the factum of the case that the defendants Nos.3 and 4 were minors at the time when the property was transferred in favour of the petitioner; that the petitioner has taken specific preliminary objection in his written statement that the suit is collusive and malicious sale deeds executed by Muhammad Inayat one of the minors had no legal effect upon his ownership but no issue was framed in this regard; that the order sheet of the trial court reflects that Rana Muhammad Arif Advocate has represented the case from both sides i.e, plaintiff and defendants Nos.3 and 4, hence, it can safely be concluded that the plaintiff filed the suit with the collusion of defendants Nos.3 and 4 which was not maintainable in its present form.
5. On the other hand, learned counsel for the respondents states that there are concurrence findings of both the courts below against petitioner; that defendants Nos.3 and 4 were minors, when the petitioner purchased the property in dispute; further argued that claim of the respondent No,1 in the suit has not been properly rebutted by the petitioner; lastly learned counsel for the respondents has supported the impugned judgments and decrees passed by the courts below.
6. Arguments heard. Record perused.
7. Undeniably, evidence produced by the petitioner before the learned trial court has not been properly appreciated by both the courts below. Some material issues were also not framed by the trial court. Petitioner has also not filed any application at any stage for framing of additional issues.
Most of the important aspects of the case have not been considered by the courts below while deciding the matter in issue. Hence, without touching the merits of the case, the instant Civil Revision is accepted. Case is remanded to the learned 1st Appellate Court with a direction to decide the matter afresh within four months positively after taking into consideration whole the evidence produced by both the parties as well as the contentions raised by the learned counsel for the petitioner today before this court. It is further observed that if the learned 1st Appellate court come to the conclusion that some issues are necessary to be framed for the proper decision of the case, then the court would have the ample power to frame the same and thereafter call the evidence on the said issues. Parties are directed to appear before the learned Additional District Judge Lahore on 18-4-2012.