1. ' DORAB PATEL, J.---This suit out of which this petition for leave arises was filed in 1954 by the first respondent for the joint possession of 8 Kanals of land situated in village Bhakkar which is shown in the present Revenue Records by Khasra Nos.1434/1096/1024/1/3. The land in dispute was part, of the Shamilat land of village Bhakkar and was owned by the first respondent and the other respondents. Although this Shamilat was partitioned in 1942, the land in dispute was excluded from the partition because it was reserved for a common purpose namely: Shar-i-Aam. Muhammad Khan, deceased, now represented by his legal heirs (to whom we will refer as the fourth respondent) was one of these co-owners and he sold 6 Kanals out of the land in dispute to the petitioners for Rs,4,000 by a registered sale-deed registered on 16-5-1952. The petitioners took possession of the land sold to them and started digging foundations for constructing buildings and houses thereon. As according to the first respondent the sale to the petitioners by the fourth respondent was illegal, he filed a suit against the petitioners for joint possession, and the other co- owners of the land including the fourth respondent were impleaded as defendants in this suit. The petitioners contested the suit but it was decided against them. The learned Senior Civil Judge, Mianwali, who tried the suit, held that the land in dispute had not been partitioned because it had been reserved for a private thoroughfare and in reaching this conclusion, he relied on the Jamabandi 1946-47 which had been prepared after the partition of the other land and it showed the land in dispute as Ghairmumkin Rasta. The petitioners on the other hand had relied on a correction in the Revenue 'Record and had produced some evidence in support of their plea that the land in dispute was in the fourth respondent's exclusive ,possession. The learned Senior Civil Judge was not impressed by this evidence and as he held that the land in dispute was a Rasta-i- Aam and had not been partitioned, he decreed the suit for joint possession as prayed. However, we would pause to point out here that as the suit had been filed when the petitioners had commenced constructions on the land in dispute, the first respondent had sought an interim order to restrain the petitioners from making any construction on the disputed land. It is clear from the judgments under appeal that the petitioners had continued the construction despite the stay order granted by the trial Court, therefore, perhaps because a mere decree for joint possession would have been ineffective, the learned Senior Civil Judge further directed that the constructions made by the petitioners should ,be removed by them within six months time so that the land could be used as a thoroughfare and if the petitioners failed to comply with this order the respondents were permitted to remove the constructions at the costs of the petitioners.
2. ' The petitioners challenged this judgment in an appeal in the Peshawar Seat of the West Pakistan High Court, but the learned Judge of the Division Bench who heard this appeal agreed with the findings of the trial Court and expressly observed that the issues in the suit had been rightly decided against the petitioners. However, after holding that the suit had been rightly decreed, the learned Judges of the High Court observed that the relief sought in the suit would have served the purpose of the plaintiff/respondent "if a construction had not been put on the land for he (the deceased, respondent-plaintiff) had obtained an order restraining the petitioners from making any construction on the land. This order does not appear to have been served on the petitioners and a building has been constructed." Accordingly, the learned Judges pointed out that if the decree had been only for joint possession, as prayed in the plaint, as the land in dispute could not be partitioned because it was a Rasta-i-Aam, the decree for joint possession would have become meaningless, without an order for the demolition of the building erected by the petitioners which was an obstruction on the Rasta-i-Aam.The petitioners appear to have resisted the decree for demolition on the ground that it was beyond the pleadings, and they had also relied on section 51 of the Transfer of Property Act. But the trial Court had ordered demolition without giving the petitioners an opportunity to produce evidence in support of the contention that their case fell under section 51 of the Transfer of Property Act. As this was because the plaintiff-respondent had failed to sue for a mandatory injunction for the demolition of the building constructed by the petitioners, the learned Judges directed the plaintiff-respondents to amend their plaint so as to include a prayer for the demolition of the building or buildings constructed by the petitioners. The learned Judges also framed two further issues. These issues were "firstly whether the construction was put up before the institution of the suit, secondly, whether it was put up bona fide and if so, with what effect on the relief." The learned Judges then remanded the case to the trial Court for deciding these issues after giving the parties an opportunity to lead evidence. Accordingly, with these observations by their judgment dated 16th November, 1960, the learned Judges remanded the case to the trial Court for a decision only on the two issues thus framed by them.
3. ' The petitioners challenged this judgment in a petition for leave in this Court being CPSLA 106/1962.
4. This petition for leave was dismissed on 13-11-1962 and although the petition for leave has not been Tiled, it would appear from this Court's order of 13-11-1962 that the petition was passed on the ground that no issue had been framed "regarding the extent of the Shar-i-Aam in the land in suit."
5. But this plea was rejected with the observation that it did not arise for consideration as the Court had "held that the whole of the Khasra number in dispute constituted Shar-e-Aam".
6. ' As this petition for leave was dismissed the order for the remand of the case became final and on remand the parties amended their pleadings in the trial Court. The petitioners also sought permission to produce further documents. But this prayer was rejected by the trial Court which after hearing the parties, decided against the petitioners...The issues framed by the High Court, therefore, the trial Court once again decreed the claim of the respondents-plaintiffs and granted the petitioners six months time to "remove the Malba of the building in question and failing which the plaintiffs-respondents were at liberty to get the constructions removed at the cost of the petitioners". The petitioners challenged this judgment in an appeal in the District Court, Mianwali and also registered their claim for producing additional evidence. But their prayer for additional evidence was rejected on the ground that they had failed to make out a case under Order 41, Rule 27, Civil Procedure Code and on the further ground that the documents sought to be produced related to issue which had already been decided in the first round of litigation culminating in the High Court's judgment of 16-11-1960. Accordingly, as the learned District Judge agreed with the relief granted by the trial Court, he dismissed the appeal of the petitioners.
7. ' The petitioners challenged this judgment in a second appeal in the High Court, but as the High Court dismissed this appeal on 5-4-1977, the petitioners have filed this petition for leave.
8. ' Learned counsel submitted that the Courts below had erred in refusing the prayer of the petitioners for filing additional documents, because the petitioners were at least entitled to produce documents which were not in existence at the date of the decree passed by the trial Court in the first round of litigation. And, in this connection, learned counsel stated that he relied on the Jamabandi of 1946-47, as corrected through a correction slip (Fard Badar) on 17-9-1963 on the application filed by the petitioners on 26-11-1962. Learned counsel also wanted to produce other documents on the basis of which the Jamabandi had been corrected. But the learned District Judge had observed that the petitioners had failed to bring their case under Order 41, Rule 27, Civil Procedure Code, and no exception can be taken to this finding, because the correction of the Jamabandi had been sought on the basis of documents which were available in the earlier round of litigation. In any event, both the Courts further held that the petitioners could not be permitted to file these documents because they were sought to be produced in support of the contention that the land in dispute was not a Shar-i-Aam, but this contention could not be entertained because the case had been remanded only on the two issues framed by the High Court in its judgment of 16-11-1960, therefore, they held that the parties, including the petitioners, could only produce evidence, including documentary evidence which was relevant to those issues. No exception can be taken to this concurrent finding against the petitioners, unless they were entitled, on the remand of the case to reagitate the question whether the land in dispute was or was not Shar-i-Aam. Now apart from the fact that the fourth respondent had not denied this allegation in his written statement, it is not possible to understand how the petitioners could have re-agitated any issue decided against them by the High Court in the first round of litigation as this Court had refused to grant leave against the High Court's judgment. But, according to learned counsel, as the case had not been remanded under Rule 23 of Order 41, Civil Procedure Code, the High Court had acted illegally in remanding the case partially, and therefore, despite the order of. The High Court, the trial Court should have permitted the petitioners to re-agitate their claim that the land in dispute was not Shari-i-Aam. In support of this strange argument, learned counsel also submitted that Rules 23-A and 25 of Order 41 did not envisage a partial remand of a case by an Appellate Court, therefore, the remand of the case by the West Pakistan High Court did not fall under Order 41. But in framing issues and remanding the case the High Court had exercised its powers as an Appellate Court under clause (c) of section 107 of the Civil Procedure Code and as it agreed with the trial Court's finding on the issues framed in the suit, it would have been an exercise in futility to permit the parties to re-open the entire case merely because the ends of justice required that the case should be remanded in order to permit the petitioners to plead, if so open to them, a defence under section 51 of the Transfer of Property Act. And precisely because the case did not fall under any of the express provisions of the Civil Procedure Code, it is clear that the learned Judges of the West Pakistan High Court had, in remanding the case on two issues only, exercised the inherent powers of the Court under section 151 of the Civil Procedure Code.
9. ' Learned counsel also admitted that the case Could have been remanded under section 151 of the Civil Procedure Code. But on the footing that it had been so remanded, his submission was that it was not a case of "an appealable order falling in any of the categories mentioned in C.P.C. The Civil Petition for Special Leave to Appeal is not an appeal for the purposes of subsection (2) of section 105 because it is not under that provision of the C.P.C., but under a Constitutional provision.
10. Moreover, the petition for leave to appeal is not an appeal". We have quoted these words from the petition for leave, as learned counsel placed great stress on this submission. The argument is based on the assumption that the High Court's judgment dated 16-11-1960 did not fall under section 105 of the Civil Procedure Code. Obviously it could not fall under the section, but not on the ground advanced by learned counsel. It could not fall under this section, because the section relates to orders, not to judgments, and as the decision pronounced by the High Court on 16-11-1960 disposing of the appeal of petitioners was a judgment, the provisions of section 105 have no relevance to the plea advanced by learned counsel, and, on the other hand as this Court had refused leave to appeal against this judgment, it became final, therefore, it was not open to any Court, on the remand of the case, to re-examine the question whether the land in dispute was or was not Shar-i-Aam.
11. ' Learned counsel's next submission was that a mandatory injunction was an equitable remedy and that the instant case was not a fit case for the grant of such relief. But the allegation of the first respondent was that the petitioners had continued their illegal construction after notice of the stay order, passed by the trial Court against them on 15-11-1954, and to the extent that this allegation is true, there could not be a more appropriate case for the grant of a mandatory injunction, even though it meant the demolition of a building. However, the equities might be different for that part of the construction which has been erected on the date of the stay order granted by the trial Court.
12. Now, in upholding the order of the lower Courts for the total demolition of the building erected by the petitioners, the High Court relied, inter alia, on the fact that the construction had been built without the approval of the local authorities and the further fact that the petitioners had continued with their construction even after they had become aware of the stay order passed by the trial Court against them. As submitted, the question whether the conduct of the petitioners after notice of the stay order would react against their bona fides is a question which requires examination.
13. Additionally, learned counsel submitted that the first respondent had himself erected .a structure on the land in dispute even though according to him the lands were Shar-i-Aam. Learned counsel for the caveator denied this allegation, but it would appear prima facie, that a construction was put up by the first respondent's brother. There is also some evidence to show that there is another hotel constructed on the land in dispute. These circumstances escaped the attention of the High Court and the lower Courts, and they were relevant to the question of the bona fides of the petitioners.
14. ' The view taken by the High Court about the bona fides of the petitioners, therefore, requires further examination with regard to the construction already erected by them on the date of the stay order passed by the trial Court. Accordingly, we would grant leave only to examine the question whether the Courts were justified in ordering the demolition even of that part of the building erected by the petitioners which had been constructed by 13-11-1954. Security in the sum of Rs,2,000. Learned counsel presses for a stay pending the hearing of the appeal. As leave is granted only with regard to the structures which were built by 13-11-1954, the respondents would be free to proceed with the execution of the decree obtained by them, except with regard to the structures in existence by 13- 11- 1954. Neither of the counsel are agreed about the factual position as to what had been erected by the petitioners by this date, but they are both agreed that one Mr. Aslam had been appointed a Commissioner by the trial Court to give a report on the structures built by the petitioners and Mr. Aslam had submitted a report dated 10-2-1955 in which he had shown, within a site plan, the construction in existence on 13-11-1954, and the construction after that date. Accordingly, we grant a stay against the demolition of that part of the buildings in dispute which had been built by 13-11- 1954, according to Mr. Aslam's report.