1. MUHAMMAD AFZAL ZULLAH, J.-This appeal through special leave, is directed against the judgment dated 19-4-1978 of the Lahore High Court, whereby a revision petition arising out of a partition suit, was dismissed.
2. The plaintiffs (respondents) had averred in the plaint that the suit pro--perty (a Haveli) belonged to one Shera, father of respondent No. 1 and grandfather of Fordil appellant No. 2. The plaintiffs sought partition of the Haveli the ownership of which was thus claimed on the basis of inheritance.
3. The proceedings were taken ex parte against Fordil but Muhammad Akbar appellant No. 1 defended the suit asserting that the suit property belonged exclusively to Fordil, because, he had inherited it from his father, namely, Ahmad who was the original owner. Shera's ownership was denied. After framing necessary issues on the pleadings of the parties, the learned trial Court give a finding in favour of the plaintiffs on the main question of the ownership. The defendants failed in the District Court as also in the High Court. Soon thereafter Fordil who had earlier been proceeded against ex parte, moved an application before the learned trial Court for setting aside, the ex parte decree. This application was dismissed. He then filed an appeal before the District Judge which was allowed ; ex parte proceedings were set aside ; and, the case was remanded to the learned trial Court for a fresh decision.
4. The learned trial Judge admitted some fresh evidence and after recording the statements of the learned counsel for the parties, closing their respective cases, decided the suit afresh in favour of the plaintiffs, and passed a preli--minary decree. The appeal filed by the defendants including Fordil, failed and the revision in the High Court having been dismissed through the impugned order, special leave to appeal was granted to them by this Court to consider the following contentions raised at the leave stage that the learned Single Judge erred in holding that the second petitioner (Fordil) bad no interest to defend which was erroneous as his 1/2 share was taken away and decreed in favour of the respondents. It was next contended that the learned Single Judge failed to give due weight to the contention that the courts below could not adjudge by taking it into consideration the pre-remand evidence as in law it did not exist, and, therefore, the decree granting 1 /2 share to the respondents suffered from legal defect."
5. Learned counsel for the appellants has vehemently argued that the state--ment dated I1-4-1977 made by the learned counsel for the defendants purport--ing to have accepted the evidence in the first round of litigation as evidence after remand, has not only been misread but also has been considered without reading the context in which it was made. He also raised the legal question that barring the said statement dated 11-4-1977 which was contended, has been misread, there was no legal authority for the learned trial Court to have treated the pre-remand evidence as evidence for deciding the suit afresh. The main contention being that the earlier evidence as recorded, in the absence of Fordil appellant--the fact that Muhammad Akbar appellant the vendee from Fordil appellant defended the suit in the earlier proceedings and had oppor--tunity of cross-examining the witnesses, according to the learned counsel, would not make any difference.
6. We have carefully gone through the order sheet maintained by the learned trial Judge. The statement made by the appellants' counsel on 11-4-1977 reads as follows :- This statement, according to the learned counsel was in the context of the proceedings conducted by the learned trial Judge since October 1976. The affirmative evidence had been adduced by the appellants and recorded during the post-remand proceedings. They were bet to adduce their evidence in rebuttal when the said statement of the counsel was recorded. Therefore, as contended, it should be read in the context of the evidence examined by the appellants during post-remand proceedings and the word although in the context of stage and time of proceedings, could be also referred to the evidence recorded prior to the remand, it was in reality intended to convey the sense that the affirmative evidence of the appellants recorded after the remand proceeding, was considered by the counsel as enough and that in this context, the intention was not to produce evidence in rebuttal.
7. The learned counsel for the respondents on the other hand, contended that notwithstanding the fact that some evidence was produced by the appellants during the post-remand proceedings, they had in reality, relied before the learned trial Court on the evidence recorded during pre- remand proceedings. He also contended that at the time of arguments before the learned trial Judge, none of the appellants, not even Fordil, pressed the point that the pre-remand evidence could not be considered by the Court. And above all, the learned counsel contended that the leaned Advocate who made the statement dated 11-4-1977, was not appearing on behalf of Fordil defen--dant alone but represented all the defendants 'who were making the statements in that context. According to the learned counsel, there was no doubt about the underlying intention when the statement was made.
8. It is true that the question regarding interpretation of the statement dated 11-4-1977 was not pressed before the learned trial Judge from the appellants' side. If it would have been pressed, there is no reason why this aspect should not have been noticed in the judgment which is otherwise detailed. On the contrary, while marshalling the evidence, the learned trial Court noted as follows :- " . . In the proof of their case, the plaintiffs examined Abdul Bari P. W. 1, Sumandar P. W. 2, Jumma P.
9. W. 3, Muhammad Din P. W. 4, and Gulab one of the plaintiffs as P. W.
5. Subsequently once again the plaintiffs examined Abdul Bari as P. W. 1/A, Mst. Said Bano plaintiff as P. W. 2/A, Akhtar Ali as P. W.
10. 3/A, Khudadad plaintiff as p W. 4/A, and Khan Mulkha as P. W. 5/A. The documentary evi--dence consists of Exh. P. 1 to Exh. P.
16. In rebuttal the defendants examined Munawar Khan as D. W. 1, Muhammad Akbar defendant as D. W. 2, Bostan as D. W. 1/A, Chanan Shah as D. W. 2/A, Muhammad Nawaz as D. W. 3/A, Fordil defendant No. 1 as D. W. 4/A, and Muhammad Akbar defendant No. 6 as D. W 5/A. They relied upon Exh. D. 1, as documentary proof."
11. Munawwar Khan D. W. 1, who was examined from the defendants' side during pre-remand proceedings, was the solitary witness regarding the alleged sale between Fordil appellant and Muhammad Akbar. He was not re--examined during the post-remand proceedings. As noted earlier, this point was not pressed before the learned trial Court but it having been raised before the learned first appellate Court and the High Court, was examined and decided against the appellants in so far as the interpretation of the statement dated 11-4-1977 is concerned. Although, it is possible to consider the said state--ment in the context of the post-remand proceedings so as to give it only on meaning, namely, that it related to the affirmative evidence of the appellant recorded after the remand proceedings, there is nothing which would show that this is the only interpretation. The other interpretation, namely, that it referred to both the stages i.e. The pre- remand and post-remand, in so far as they, in the context of the statement were admittedly the past stages, is also reasonable. The word ---sabka--- would cover these stages. In its revisional jurisdiction, the High Court accepted the latter interpretation which as analysed above, is neither impossible nor unreasonable. That being so, no justification has been made out for interference by this Court on this aspect of the matter.
12. It is not the case of the appellants that if the statement dated 11-4-1977 did cover the pre-remand.
13. Proceedings, the trial Court's decision would nevertheless be illegal on account of consideration of irrelevant material. Even if they would have urged this point, it would not have been of any benefit to them as in the circumstances of the case, they would not be permitted to take divergent position at different stages of the same litigation. In this view of the matter we do not consider it necessary to examine the other argument--advanced by the learned counsel. This appeal fails and is accordingly dismissed. There shall be, however, no order as to costs.