' FAROOQ ALI CHANNA , J.---By this revision application, the applicants through their attorney Abdul Jabbar have called in question the order dated 27-9-2012, passed by learned Vth Additional District Judge, Hyderabad (hereinafter referred to as Appellate Court) in Civil Appeal No.115 of 2012, whereby set aside the judgment and decree dated 14-5-2011 and 16-5-2011 respectively, passed by learned Vth Senior Civil Judge, Hyderabad in F.C. Suit No.63 of 2009 filed by the applicants against the respondents.
2. Succinctly, facts giving rise to file this civil revision are that the applicants filed the suit for declaration and permanent injunction against the respondents that their paternal grandfather Muhammad had agricultural land bearing S.Nos.3-1 to 4, 184-1 to 4, 180-3 and 4, 182-1 to 4 total admeasuring about 16-3-1/2 acres situated in deh Detha, Tappa Tando Hyder, Taluka and District Hyderabad, out of which S. Nos. 3-1 to 4 admeasuring 5-28 acres was in possession of the applicants. Deceased Muhammad died, leaving behind three sons namely Amir, Ahmed Khan and Bhoro, and three daughters namely Mst. Arbo, Mst. Mithal and Mst. Gulshan as his surviving legal heirs. After the death of their paternal grandfather, the respondents Nos.4 to 8 inherited his land and got it mutated in their favour fraudulently in the revenue record of rights excluding the name of their father Amir, therefore, they approached the trial Court, filed the Civil Suit with the following prayers:--
(a) Declare the plaintiffs as legal heirs of their late father namely Amir sOn of Muhammad Detho as lawful owner.
(b) Direct the defendants Nos.2 and 3 to cancel/correct the mutation entry in the names of plaintiffs and they may be shown as legal heirs of their late Amir son of Muhammad in the record of rights.
(c) Declare that the defendants be permanently restrained from dispossessing the plaintiffs from the suit property and they may also be restrained from interfering in peaceful possession through themselves, or through their agents, attorneys, subordinates, etc. Directly or indirectly -in any manner whatsoever.
(d) Cost of the suit may saddled upon the defendants.
(e) Any other relief deems 'fit and proper may be awarded in favour of the plaintiff.
3. The respondents Nos.4 to 8 despite the service by all modes of service including publication of notices in newspaper did not appear before the trial Court, therefore, the service against them was held good and the matter was proceeded ex parte against them. The trial Court after. Recording evidence of applicants, passed ex parte judgment and decree dated 14-5-2011 and 16-5-2011 respectively, decreeing the suit of the applicants partly to the extent of prayer clause (a) declining the prayer clauses (b) and (c).
4. The respondent No.4 namely Ahmed filed Civil Appeal No.115 of 2012 under section 96, C.P.C.
Against the ex parte judgment and decree dated 14-5-2011 and 16-5-2011 respectively, passed by the trial Court. After service the applicants made appearance and the appellate Court after affording an opportunity of hearing to the counsel of both the parties allowed the appeal, remanded the case to the trial Court for fresh decision vide judgment dated 27-9-2012, the operative part of the said judgment reads as under-- "On deliberation it is found that the appellant has not put forth a strong case for setting aside ex parte decree and record does not show if against impugned ex parte judgment and decree thereto any application was filed before learned trial Court to set them aside. However, at the same time it is found that the plaintiff/ respondent No.1 never put forth a proper case even before learned trial Court so much so that the plaintiff did not mention the date when his paternal grandfather expired. Plaintiff has asserted that his father expired on 13-3-2005 whereas the appellant through present appeal has put forth a different fact i.e. Asserting that the father of the plaintiff namely Amir Bux in fact died in the year 1997 whereas his paternal grandfather Muhammad expired in the year 2003. It appears as if the plaintiff was reluctant to put forth a case of pre-deceased, hence put forth a jumbled fact and did not narrate the facts properly which has also resulted in the impugned judgment in a slip shod manner. Expecting that on remand a proper picture from both sides would be placed before learned trial Court for quality adjudication and determination of rights between the parties, including the entitlement of the plaintiff to have a relief with regard to prayer clauses other than clause (a), if any."
5. Learned counsel for the applicants has contended that the case was remanded to the trial Court for determination of shares of both the parties in their ancestral landed property including the entitlement of the applicants to have a relief with regard to prayer clauses other than clause (a).
The applicants in their Civil Suit No.63 of 2009 have not sought the relief of declaration of their share in the property left by their deceased paternal grandfather, therefore, the aforesaid direction contained in the impugned judgment of Appellate Court are against the relief sought for in Civil Suit, hence not sustainable.
6. The above submissions of learned counsel for the applicants on confronting are not controverted by the learned counsel for the private respondents. The averments of F.C, Suit No.63 of 2009, copy whereof has been annexed with this Civil Revision Application, also supports the contentions of learned counsel for the applicants.
7. I have gone through the pleadings before the trial Court, so also the ex parte judgment and decree dated 14-5-2011 and 16-5-2011 respectively, passed in F.C. Suit No.63 of 2009, which does not manifest anywhere that the applicants had approached the trial Court seeking the declaration of their share in the agricultural land left by their deceased paternal grandfather. The prayer clauses
(b) and (c) in respect of cancellation/correction of the mutation entry in the names of the applicants as legal heirs of late Amir and restraining the respondents from interference in peaceful possession of applicants over 5-28 acres land were declined. The trial Court has allowed the prayer clause (a) only declaring the applicants' status to be the legal heirs of deceased Amir, the respondents Nos.4 to 8 have also not disputed the aforesaid status of applicants. On the contrary the respondent No.4 in ground No.2 of the memo of appeal has admitted that deceased Amir was the father of plaintiffs/applicants, thus there is no controversy between the parties in this respect, hence the respondents Nos.4 to 8 cannot be said to be aggrieved with the impugned ex parte judgment and decree, which also does not adversely affect any right of the respondents Nos.4 to 8 in their ancestral property.
8. Section 96, C.P.C. Provides that if decree or order appealed against adversely affects a person, he can challenge the same in appeal, the said condition precedent is missing in this matter. The appellate Court in the impugned judgment has also observed that the appellant (respondent No.4) has not put forth a strong case for setting aside the ex parte decree, the record also does not show that the appellant (respondent No.4) before filing appeal, approached the trial Court and filed any application for setting aside the ex parte judgment and decree.
9. In view of above facts and observation of Appellate Court so also admitted position that the applicants have runt filed appeal against the dismissal of their prayer clauses (b) and (c) there appears no reason to set aside the ex parte judgment and decree passed by the trial Court and to allow the appeal, remanding the matter to trial Court directing both the parties to place before the trial Court proper picture for adjudication and determination of their inherent rights in their ancestral agriculture land left by deceased Muhammad, such directions are beyond the pleadings before the trial Court, hence the impugned judgment is perverse, suffering from infirmity and material irregularities, which mandates this Court to interfere in the findings of Courts below in exercise of revisional jurisdiction conferred upon this Court in section 115, C.P.C. I, therefore, set aside the judgment dated 27-9-2012 passed in Civil Appeal No.115 of 2012. The Revision Application is allowed.
10. Nevertheless to mention that both the parties would be at, liberty to exhaust appropriate remedy provided under the law for determination of their shares under the law of inheritance in their ancestral property left by deceased Muhammad if so desire.