KHALID PAUL KHWAJA, J.- This revision petition is directed against the judgment dated 19.11.1989 whereby the learned Addl. District Judge, Sargodha dismissed the petitioner's application under Section 12(2) C.P.C.
2. The relevant facts which gave rise to the present revision petition are that on 4.7.1978 Jamala alias Jamal Din the predecessor-in-interest of the respondents Muhammad Yasin, Muhammad Yamin and Mst. Aisha instituted a suit against Muhammad Ashraf, Muhammad Akram, Muhammad Rafique and Muhammad Siddique sons of Muhammad Iqbal for a declaration to the effect that he was the sole owner in possession of the property in dispute measuring 1 kanal 19 marlas and that the defendants had no concern with the said property. By way of consequential relief he sought the issuance of a permanent injunction to restrain the said defendants from alienating the said property, removing the superstructure and the trees standing on it. The suit was contested and on the divergent pleadings of the parties as many as seven issues were framed.
3. The parties adduced their evidence on the said issues. After considering the said evidence, on 26.6.1980, the learned trial court decreed the suit and declared that Jamal Din was entitled to get vacant possession of the property in dispute. The defendants were directed to remove the superstructure from the said property. The defendants lodged an appeal against the said decision of the learned trial court but the same was dismissed vide judgment dated 3.4.1984.
4. On 16.10.1985 Mst. Muhammad Jan, the present petitioner, instituted an application under Section 12(2) of the Civil Procedure Code in the court of the learned Civil Judge Bhalwal for setting aside the decree passed in the above mentioned suit. Subsequently on 17.9.1988 the said application was withdrawn with permission to institute a fresh application in proper forum i.e in the court of the Addl. District Judge, Sargodha. On 2.10.1988 fresh application under Section 12(2) CPC was instituted in the court of the learned Addl. District Judge, Sargodha. In the said application it was alleged that the petitioner being a co- sharer in the joint holding in which the property in dispute was situated was a necessary party to the suit but she had been fraudulently kept out by the parties to the said suit. It was further alleged that actually the suit property measured only 1 kanal 9 marlas but decree for 1 kanal 19 marlas was wrongly obtained. The present respondents namely Muhammad Yasin, Muhammad Amin and Mst. Aisha the successors-in-interest of Jamal Din aforesaid contested the said application and on the pleadings of the parties the following issues were framed;
1. Whether the petitioner has filed an application u/s 12(2) CPC prior to this petition and the same was dismissed, if so its effect?
2. Whether the petitioner is having no cause of action?
3. Whether the petitioner is estopped by her act and conduct to file this petition?
4. Whether the petition is time barred?
5. Whether the judgment and decree passed by Mr. Shaukat Iqbal Sikka dated 26.8.80 and the judgment and decree passed by Mr. Muhammad Ali Shad A.D.J dated 3.4.84 are without authority, based on fraud and mis representation?
6. Relief.
5. The parties adduced their evidence on the above issues. After considering the said evidence the learned Addl. District Judge vide the impugned judgment dated 19.11.1989 dismissed the application. Feeling aggrieved the petitioner has come up in revision to question the validity of the said judgment.
6. I have heard the parties' learned counsel.
7. The perusal of record reveals that the disputed land bears Killa No.12/2 in square No.173.
According to Jamala alias Jamal Din, the predecessor- in-interest of the present respondents, the said land measured 1 kanal 19 marlas. In the evidence adduced by the parties during the suit proceedings some documents were produced about the suit land but they contradicted each other on the point of the area of the suit land. The documents produced by Jamala alias Jamal Din showed that the area of the suit land was 1 kanal 19 marlas while according to the documents produced by the petitioner the said area was 1 kanal 9 marlas. The petitioner in her application under section 12(2) C.P.C had specifically raised the objection that the area of the suit land was 1 kanal 9 marlas and not 1 kanal 19 marlas as alleged by Jamala aforesaid. It is thus clear that there was a dispute between the parties over the area of the land in dispute and both the parties had produced evidence in support of their respective claims. It was thus necessary for the learned trial court (the court which passed the impugned order) to have considered these contentions and the evidence produced in support thereof and give its findings so that the controversy between the parties on this point was brought to an end. Sadly this has not been done. Realising the existence of this defect in the judgment the parties' learned counsel have jointly requested that the case be remanded to the learned trial court for decision afresh after affording an opportunity to the parties to produce further evidence in support of their respective claims. The request is genuine and in order to effectively resolve the dispute between the parties .The same is granted. Resultantly, the revision petition is accepted, the impugned judgment dated 19.11.1989 is set aside and the application under section 12(2) CPC is remanded with the following directions:
(1) The learned Addl. District Judge who had passed the impugned order if he is still at Sargodha or his successor shall afford reasonable opportunity to the parties to adduce further evidence in support of their respective claims especially about the area of Killa No.12/2 of square No.173 i.e the land in dispute.
(2) After recording the said evidence the learned Addl. District Judge shall decide the petition under Section 12(2) C.P.C afresh after hearing the parties' learned counsel.
(3) The parties shall appear before the learned Addl. District Judge on 16.2.1991.
(4) The parties are directed to bear their own costs.
(5) The learned Addl. District Judge shall try to dispose of the matter expeditiously.