' This civil revision is directed against the judgment and decree dated 07.01.2004, passed by the learned appellate Court, whereby the appeal filed by the respondents was accepted and suit was decreed.
2.The respondents/plaintiffs instituted a suit for declaration on the ground, that the judgments and decrees dated 18.10.1975, 12.11.1976 and 28.02.1977 obtained by the petitioner/defendant against the respondent namely, Mst. Hanifan Bibi, were illegal and ineffective qua the rights of the respondents.
As a consequential relief, the respondents/plaintiffs prayed for permanent injunction to restrain the petitioner/defendant for dispossessing the respondents from the suit land on the basis of aforesaid impugned decrees. Further contended, that the respondents/plaintiffs had become owner in possession of the disputed property measuring 185 Kanal 1 Marla by virtue of the exchange Mutation No, 14 dated 15.01.1974 and the petitioner, through the a fore-mentioned judgments and decrees, intended to deprive the respondents from their entitlement and further, the petitioner had also forged a fictitious compromise deed dated 18.10.1975.
3. The suit was contested by the Petitioner No, 1/defendant Muhammad Ilyas mainly on the ground, that the afore-mentioned judgments and decrees sought to be annulled, were obtained by him strictly in accordance with law and there is no fraud or misrepresentation, as alleged in the suit.
Also contended in the written statement, that the exchange Mutation No, 14 dated 15.01.1974, was obtained by the petitioner .During the proceedings of the suit titled 'Muhammad Ilyas vs. Hanifan Bibi' which was filed on 11.06.1970 and dismissed on 18.10.1975.
4. The learned trial Court, out of the pleadings of the parties, framed as many as seven issues, recorded evidence of the respective parties and finally dismissed the suit vide judgment and decree dated 22.07.1987. Against which an appeal was filed which was dismissed on 24.04.1995 by the learned Additional District Judge, Sialkot, mainly on the technical ground, that after the insertion of Section 12(2), C.P.C., the suit to challenge the judgment and decree, was no more competent.
5. The case was finally remanded by this Court on 26.12.2001 on the ground, that the suit had been filed prior to the insertion of Section 12(2), C.P.C., therefore, the appeal should be decided afresh.
6. Learned counsel for the petitioners has questioned the validity of the judgment and decree passed by the learned appellate Court on the ground, that the second suit filed by the petitioner for setting aside the order dated 18.10.1975 was not a new suit but was in continuation of the first suit filed on 11.06.1970 and the judgment dated 12.11.1976, passed in favor of the petitioner, only corrected the fraudulently obtained order dated 18.10.1975 and on the same date, the suit was decreed in favour of the petitioner Muhammad Ilyas, which was pending since 11.06.1970. Further contended, that the petitioner filed an execution petition for getting possession under the aforesaid decree; in the execution petition, the respondent/plaintiff filed objections on the ground, that they were in possession of the disputed land but were not party in the suit finally decided on 12.11.1976, therefore, the warrant Dana' for their dispossession in favour of the petitioner be restrained; the objection petition filed by the respondents was dismissed on 13.12.1977 against which a civil revision was filed by the respondents which was dismissed by the' learned Additional District Judge on 11.03.1980 and consequently, the petitioner was put in possession of the suit land on 07.12.1980. Also contended, that as the respondent/plaintiff did not avail the further became final, hence, the suit filed by the respondents/plaintiffs was remedy, therefore, the order of the learned Additional District Judge incompetent and barred in view of Rule 103 of Order XXI, C.P.C. As amended by Law Reforms Ordinance, 1972.
7. When this legal proposition was confronted to the learned counsel for the respondents, the learned counsel submits, that the suit was rightly decreed in favour of the respondents/plaintiffs, but no answer or explanation was offered by the learned counsel for the respondents.
8. At this stage, the judgment delivered by the learned appellate Court was examined with the assistance of learned counsel for the parties in order to ascertain as to whether the learned appellate Court, while recording the findings, has discussed this legal aspect of the case but it is found, that this aspect has neither been attended nor decided by the learned appellate Court.
9. Learned counsel for the respondents also perused the record and the findings but could not refer anything in support of his contention and lastly had no option but to say, that this legal aspect of the case should have been decided by the first appellate Court.
10. Without further commenting upon the facts of the case, which has a long history, the instant case, with the concurrence of the learned counsel for the parties, is remanded to the learned appellate Court to decide the case afresh on merits and in the light of Rule 103 Order XXI, C.P.C.
11. Resultantly, in view of above, this civil revision is allowed, the judgment and decree passed by the learned appellate Court is set aside, the case is remanded to the learned appellate Court to re- decide the same afresh in the light of observation made above. No order as to cost.
12. Parting with the judgment since it is an old matter, therefore, the parties to the case shall appear before the learned District Judge, Sialkot on 20.08.2015 who may hear the case himself or entrust to any other competent Court for its disposal positively within a period of one month thereafter. Till the decision of the appeal, both the parties shall maintain status qua the suit land.