' NASIR-UL-MULK, J.---To appreciate the controversies between the parties in these petitions for leave to appeal certain essential background facts needed to be stated.
2. Muhammad Aslam, predecessor-in-interest of the petitioner in Civil Petition No, 692 of 2010, filed three suits Nos. 51/1, 52/1 and 53/1 of 1972 way back in the year 1972 for possession through preemption of lands transferred to one, Molvi Abdul Qayyum, through four different mutations. But for the land in Khasra No,488, the pre-emptor's suits were decreed. In appeals and cross appeals, the District Judge set aside the judgment and decrees of the trial Court and dismissed all the three pre-emption suits. The High Court in its judgment dated 2-7-1978 decreed all the three suits of the plaintiff/pre-emptor including that relating to Khasra No,488, which is now subject matter of these petitions. The Court held "It is necessary to make it clear that some additions have to be made to the sale price to be paid in the two suits 51/1 and 53/1 giving rise to Revision Petitions Nos. 322/74 and 320/74 respectively for the reason that the trial court had dismissed the petitioner's suit respecting Khasra No, 488 The plaintiff/ pre-emptor was accordingly directed to pay Rs,88 in Suit.
No, 53/1 and Rs .48/4 in Suit No,51/1 on or before 7-9-1978, failing which the suits would. Stand dismissed. The judgment and decrees of the High Court were upheld by this Court in a reported case titled "Abdul Qayyu m v. Muhammad Aslam (PLD 1979 SC 867)". Subsequently, the preemptor/decree holder filed Review Petition No, 20 of 1978 on 17-9-1978 before the Peshawar High Court, praying for correction of the decree passed by the High Court in the pre-emption suits regarding Khasra No,488 with the averment that the land pre-empted in the said khasra number was 5 kanals, 2 marlas and not 1 kanal, 10 marlas as mentioned in the decree On 27-10-1079, an application was submitted in the review petition for disposing off the same on basis of compromise between the decree holder and the judgment debtor, Abdul Qayyum. Joint statement of Muhammad Aslam, decree holder and one, Abdul Jalil, appearing as attorney for Abdul Qayyum, was recorded by the High Court. It was stated that possession of land comprised in Khasra No,488 measuring 5 kanals, 2 marlas had already been delivered to the decree holder along with other areas decreed in his favour. The High Court allowed the review petition and passed the following order:-- "Application for review (under Order XLVII, Rule 1, C. P.C.) for showing the preempted area of khasra No, 488 in suits Nos.51 /1 and 53/1 giving rise to Revision Petitions Nos. 322/74 and 320/74 respectively . To be 5 kanals, 2 marlas decreed in plaintiff's favour (out of total area 7 kanals, 6 marlas) instead of 1 kanal, 10 marlas and the price to be assessed accordingly in the judgments and decrees of this Hon 'ble Court dated 2-7-1978."
3. Eight years later, on 27-9-1987, Molvi Muhammad Ishaq, brother of the said Molvi Abdul Qayyum, the judgment debtor in the preemption suits, filed a suit against Muhammad Aslam, decree holder, seeking permanent injunction to restrain him from interfering with his possession of land in Khasra No,488, claiming possession of the entire khasra number as co-sharers. On 29-5-1999 he filed an amended plaint praying for possession, alleging forcible dispossession and filed application for contempt of Court for violation of the order of status quo granted by the trial Court. The said suit was decreed by the trial Court on 18-12-2008 as prayed for. The appeal filed by the predecessor- in-interest of Muhammad Aslam before the Additional District Judge failed and so did their revision petition (C.R. No,342 of 2009) before the Abbottabad Bench of the Peshawar High Court. The judgment of the High Court of 8-3-2010 is impugned in Civil Petition No, 692 of 2010 by the predecessor-in-interest of Muhammad Aslam. On the application by the plaintiff for contempt of Court, the trial Court ordered Muhammad Ishfaq and Muhammad Afzal, sons of Muhammad Aslam, to deliver possession of the property to the plaintiff else they would be detained in civil prison for two months. This order was upheld by the High Court in a separate judgment delivered in Civil Revision No,341 of 2009, also dated 8-3-2010. Muhammad Ishfaq and Muhammad Afzal had impugned the said judgment in Civil Petition No,393 of 2010.
4. We heard Mr. Abdul Latif Khan, Advocate Supreme Court, counsel for the petitioners and Mr. Gulzarin Kiyani, Senior Advocate Supreme Court representing the respondents, legal heirs of Molvi Muhammad Ishaq. The learned counsel for the petitioners submitted that the High Court had in the main case simply taken into consideration the statement given by Abdul Jalil, denying that he ever represented Molvi Abdul Qayyum as his attorney in the Review Petition filed before the High Court, resulting in the order dated 24-11-1979. He argued that the other points relating to maintainability of the suit of Molvi Muhammad Ishaq, the jurisdiction of the Court and time limitation was not touched by the High Court, nor was the evidence produced by the parties examined. He submitted that possession of the suit property was delivered to Muhammad Aslam pursuant to the decrees as amended, and his sons have constructed a building thereon where they are running a school.
' Responding to the above contentions, the learned counsel for the respondents argued that Muhammad Aslam was granted a decree to the extent of only 1 kanal, 10 marlas in khasra No, 488 and that was subject to depositing of the pre-emption amount, which, according to him, has never been deposited. The learned counsel assailed On a number of grounds the order of the High Court dated 2411-1979 in the review petition, passed apparently on the compromise statement of Abdul Jalil representing himself as attorney of Molvi Abdul Qayyum. The learned counsel maintained that Molvi Muhammad Ishaq as co-sharer in Khasra No,488 remained in possession of the entire property, including the share decreed in favour of Muhammad Aslam.
' During the course of arguments, we were informed that the legal heirs of Movli Abdul Qayyum and Molvi Muhammad Ishaq had tiled applications under section 12(2), C.P.C. Challenging the decrees passed in favour of Muhammad Aslant in the three pre-emption suits as well as the execution proceedings initiated tor the execution of the said decrees. After making a number of rounds, the Peshawar High Court finally remanded the case to the trial Court for proper adjudication of the applications after recording evidence of the parties. The trial Court allowed .The applications on 28-10-2008 and dismissed the pre-emption suits. The revision petitions tiled by the legal heirs of Muhammad Aslam against the said order were dismissed on the question of limitation. The High Court, however, remanded the case to, the District Judge for deciding the revision petitions on merits. After remand, the Additional District Judge, on 23-11-2010 held that the very .Filing of the applications under section 12(2), C.P.C. In the Court of Civil Judge, were not maintainable as the final decrees in the suits were passed by the High Court, which was the competent Court to entertain the applications under section 12(2), C.P.C. We have also been informed that the said judgment of the Additional District Judge has been assailed before the Peshawar High Court where the matter is still pending.
' We agree with the contentions of the learned counsel for the petitioners that the High Court has not examined all the aspects of the case in the impugned judgment delivered in the main case impugned in Civil Petition No, 692 of 2010. The Court based its decision simply on the denial statement of Abdul Jalil. We would refrain from commenting upon the arguments advanced on merits of the cases by the counsel for the parties as we intend to remand the case to the High Court. The rehearing of these cases by the High Court has also become necessary in view of the pendency of the matters before arising out of the applications under section 12(2), C.P.C. As the questions raised in the said applications and in the present petitions are closely interlinked. We are mindful of the fact that question before the High Court in the matter arising out of the applications under section 12(2), C.P.C. Is whether the said applications were competent before the High Court or the Court of Civil Judge. The learned counsel for the respondents submitted that since the final decrees were passed in the preemption suit's by the High Court, the applications under section 12(2), C.P.C. Can only be entertained by the said Court and this question be decided by this Court in the present proceedings, notwithstanding, that the same is sub judice before the High Court. This argument was opposed by the learned counsel for the petitioners, contending that let the issue, at the first instance, be decided by the High Court. We have no doubt that the applications under section 12(2), C.P.C. For setting aside the judgments and decrees passed in the present suits ought to have been filed before the High Court which passed the final decrees in view of the modification made by it in the decrees of the trial Court, and further amendment in its review jurisdiction.
Additionally, the resolution of the question arising in the judgments impugned in these two petitions for leave to appeal are interconnected with those raised in the applications under section I 2'). C.P.C. It will be proper that all the matters be now finally decided by the High Court together.
Thus, to curtail litigation for the resolution of A the controversy regarding filing of applications under section 12(2), C.P.C., we hold that it is only the High Court which can entertain the said applications.
8. In view of the above discussion, we convert these petitions into appeals and allow the same. The impugned judgments of the High. Court are set aside and cases are remanded to the High Court where Civil Revisions Nos. 341 and 342 of 2010 shall be deemed to be pending. The applications under section 12(2), C.P.C. Filed by the respondents against the judgments and decrees in the preemption suits and the execution proceedings shall be treated as having been filed before the Abbottabad Bench of the Peshawar High Court and be decided on merits along with Civil Revisions Nos. 341 and 342 of 2010.