AMIN-UD-DIN KHAN, J. --- Through this civil revision, the petitioner has impugned the judgment and decree dated 17.05.1994 passed by the Addl. District Judge, Bahawalpur, whereby the appeal filed by the petitioner was dismissed, and the judgment and decree dated 30.07.1989 passed by the Civil Judge 1st Class, Ahmadpur East, whereby the suit for declaration filed by respondents Nos. 1 to '7 was decreed against respondent No. 8 and the predecessor of respondents Nos. 9 to 13.
2. Briefly, the facts as leading to this civil revision are that according to learned counsel for the petitioner, the predecessor of respondents Nos. 1 to 7 filed a suit for declaration on 27.02.1983 against respondent No. 8 and the predecessor of respondents Nos. 9 to 13. Learned counsel states that in original plaint, width and length of property was mentioned as 45 feet 06 inches each side, whereas on the death of original defendant No. 1 (Haji Rahim Bakhsh) when amended plaint was filed, width and length of property was enhanced from 45 feet 06 inches to 88 feet each side. The property of petitioner was also included in this description of property and the petitioner was not made party to the suit but dishonestly a decree was procured against the property of petitioner without impleading her as party. Further states that even in the site plan annexed with the plaint by the plaintiff, width and length of property has been mentioned as 45 feet; that when against the decree granted by the Trial Court dated 30.07.1989 an appeal was filed by the judgment-debtors, namely, Hafiz Bashir Ahmad etc. In pending appeal before the first Appellate Court the petitioner moved an application to be impleaded as party in the appeal but during the pendency of appeal, original parties to the appeal filed a compromise application on 10.01.1993 and made a statement that appeal be dismissed as withdrawn which was dismissed as withdrawn on 11,01.1993 Learned counsel states that even the application filed by the petitioner for impleading her as party was pending at that time since 28.09.1989 and also an independent appeal filed by the petitioner was pending at that time but despite the dismissal of appeal of judgment-debtors as withdrawn, the application of petitioner was not decided, Learned counsel for the petitioner has drawn my attention to the findings of first Appellate Court with regard to issue No. 11. I have noticed that under the law the Court is bound to give specific findings on each issue and it cannot be kept open for the parties to implement the judgment in accordance with their whim and will. I have noticed that the findings recorded by the first Appellate Court are also not specific.
3. On the other hand, learned counsel for the respondents states that the appeal was not competent, as the petitioner was entitled to file application under Section 12(2) of the C.P.C. If any decree was procured through fraud and misrepresentation and further that the petitioner is claiming a right on the property on the basis of an agreement, she has no proprietary rights with regard to the property against which a decree has been granted.
4. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance,
5. I do not want to go into the merits of case deeply and opine thereupon, so that it may not prejudice the case of any of the parties. Admittedly. There is nothing on record to show that the plaintiffs sought permission to amend the suit when amended plaint was filed and the petitioner was not made party in the suit. Further, even if the objection of learned counsel for the respondents/decree-holders be scanned that revision petitioner is claiming her right on the basis of some agreement to sell, then in my view the respondents/plaintiffs have no right to decline the rights of petitioner even though these rights are being daimed on the basis of an agreement to sell, 6, The point of learned counsel for the respondents that application under Section 12(2) of the'
C.P.C. Was maintainable I do not agree with the learned counsel for the respondents, as the right of appeal was equally available to the petitioner and rightly appeal was filed and Section 12(2) of the C.P.C.Is never bar to file an appeal against the judgment and decree. It was the choice of petitioner to file application under Section 12(2) of the C.P.C. Or to challenge the judgment and decree through appeal, as the appeal by a stranger is competent when his rights or interest are involved in the litigation.
7. In the tight of what has been discussed above, this civil revision is allowed. The impugned judgments and decrees dated 17.05.1994 and 30.07.1989 passed by the Courts below are set aside. The case is remanded to the Trial Court with a direction to ask the plaintiffs to implead the legal heirs of petitioner Mst. Razia Begum as defendants in the suit and decide the same afresh after recording of evidence of both the parties, within a shortest possible period .