ALI BAIG, C.J.---Through this civil revision petition filed under section 115, C.P.C., the petitioners have called in question the veracity of the impugned judgment and decree dated 29-03-2021 passed by the learned Addl. District Judge, Skardu in C.F.A. No. 54/2019 and judgment/order dated 24-09-2019 passed by learned Senior Civil Judge Skardu in C. Misc Petition No. 2612019 whereby the learned 1st Appellate Court has dismissed the CFA filed by the present petitioners by maintaining the judgment/ order of the learned trial court.
2. Briefly the facts of the case leading to the filing of instant revision petition are that the present petitioner/ plaintiff had filed a civil suit before the learned trial court against the present respondent claiming her sharai share in the legacy of her father and successfully, bring the suit home. It is pertinent to mention here that during pendency of suit/litigation plaintiff Mst. Fizza passed away, therefore, her legal heirs have been impleaded as plaintiffs/petitioners. After obtaining decree in their favour the present petitioners filed an execution petition before the learned executing court and got the decree satisfied. During proceedings in the civil revision petition before one legal heir of sister of contesting parties had filed an application under Order 1, Rule 10(2), C.P.C. and this Court after hearing arguments on behalf of both the parties has reversed the decree passed by the learned courts below by accepting revision petition vide order dated 13- 09-2018 and the case was remanded to the learned trial Court after impleading the legal -heir of late Ghulam Muhammad for retrial, therefore, the present respondent had filed a petition under section 144, C.P.C. before the learned trial court on the basis of judgment of this court. The present petitioners contested the same by filing the replication. The learned trial court after hearing the arguments on behalf of both the parties had allowed the said application and directed the Tehsildar concerned to put the present respondent in possession of land given to the present petitioners in execution proceedings.
3. Feeling aggrieved and dissatisfied with same judgment/ order of the learned trial court the present petitioners had filed Civil First Appeal before the learned 1st Appellate Court Skardu. The learned 1st Appellate Court after hearing the arguments on behalf of both the parties has dismissed the CFA, hence, the instant petition before this court.
4. The learned counsel for the petitioner submitted that the present petitioners have been put in possession of suit land in the light of judgment/ decree passed by both the Courts below. The learned counsel for the petitioners further submitted that the respondent has no locus standi to file the instant petition under section 144, C.P.C. as he has already withdrawn a petition filed under section 47, C.P.C. The learned counsel for the petitioners further submitted that the learned trial court as well as the learned 1st Appellate Court have wrongly appreciated the relevant law and material available on file. The learned counsel for the petitioners further submitted that the present petitioners have successfully proved their suit and obtained the decree in her favour and on the basis of which they have received their sharai share in the legacy of their maternal grandfather.
The learned counsel for the petitioners further submitted that if the newly impleaded plaintiff is succeeded in obtaining a decree in her favour the present petitioners are ready to return her due share from the land as handed over to them during the execution petition proceedings.
5. On the other hand the learned counsel for the respondent No.1 vehemently opposed the contentions raised by the learned counsel for the petitioner by contending that the judgments/ orders passed by the learned courts below are result of correct appreciations of law and material available on file hence, liable to be maintained. The learned counsel for the respondent No.1 further submitted that no decree is in field in favour of present petitioners, therefore, they are not entitled to retain the land handed over to them on the basis of decree which has already been reversed by this court. Hence, the instant petition is not maintainable which may be dismissed in the interest of justice.
6. I have heard the learned counsel for the parties at length and perused the record of the case with their able assistance.
7. Admittedly, Mst. Fizza mother of the present petitioners had filed a civil suit against the present respondent No.1/ defendant and obtained decree from both the learned courts below. The present respondent No.1 had filed a revision petition in this court against the judgments/ decrees of the both courts below. During the pendency of said revision petition grand-daughter of sister of contesting parties filed an application under Order I, Rule 10(2), C.P.C. in this Court for impleading her as plaintiff in the suit which was allowed by this court vide order dated 13-09-2018 and case was remanded back to the trial court by setting aside concurrent findings of both the courts below.
In the meanwhile the decretal property was handed over to the present petitioner, therefore, the present respondent No.1 filed an application under section 144, C.P.C, for restitution / possession of decretal land which was delivered to the LRs of Mst. Fizza. The learned trial court had allowed the application of the respondent No.1 vide order dated 24-09-2019 and the learned 1st Appellate.
Court has maintained the aforesaid order of trial court vide judgment/order dated 29-03-2021, hence, this petition.
8. Admittedly, the present petitioners have got Sharia share of their mother from the legacy of their maternal grand-father on the strength of judgments / decrees of both courts below which were set aside by this Court on the technical ground that grand-daughter of sister of contesting parties was not impleaded as plaintiff.
9. Since, the petitioners have got their Sharia share out of legacy of their maternal grand-father on the basis of concurrent findings of trial court as well as 1st Appellate Court, therefore, they are entitled to retain the suit property till disposal of their suit which is subjudice before the trial court. If eventually, the case is decided against the plaintiffs/ present petitioners up to the final judicial forum then possession of suit land would be delivered to respondent No. 1. Moreover, the present respondent No.1 had earlier filed an application for restitution/possession of suit land in the trail court under section 47, C.P.C. which was unconditionally withdrawn by the respondent No.1 as evident from order sheet of trial court dated 29-11-2018, hence, the respondent No.1 is estopped by his conduct and admission to file fresh petition for restitution / possession of suit land.
10. For what has been discussed above, I am of the view that both learned courts below have committed material illegality and irregularity while passing the impugned judgments / orders and have arrived at an incorrect conclusion. Consequently, both the impugned judgment' and order passed by both the Courts below are set aside by allowing this revision petition. Parties are left to bear their own costs.
11. Before parting with this judgment, the learned trial Court is directed to dispose of the suit of the petitioners within shortest possible time. File.