' Briefly stated facts of the case out of which this civil revision has arisen are that House No,S-1-14- S-14 commonly known as House No,14, Street No,5, Guru Arjan Nagar, Gowalmandi, Lahore was jointly transferred to Mehraj Din petitioner, Mst. Mehraj Begum deceased the predecessor of petitioners Nos.2 to 9 and the respondent being legal heirs of Taj Din deceased by the Settlement Department vide Transfer Order, dated 17-12-1979. The respondent was in possession of the entire house. Resultantly, the petitioners filed a suit for possession through partition to the extent of their share in the property. This suit was contested by the respondent and the learned Trial Court vide judgment and decree, dated 14-7-1981 passed a preliminary decree for partition and possession in favour of the petitioners and appointed a local commissioner for visiting the spot and for submission of the report to the Court suggesting the mode of the partition of the house in question between the parties. It was further directed that in case the property is found to be indivisible then it shall be sold and the parties shall be entitled to their respective shares in the sale price. The respondent filed an appeal against the said judgment and decree which was heard by Mr. Sarfraz Ahmad Cheema, Additional District Judge, Lahore. During the pendency of this appeal on 18-9- 1982, the parties entered into compromise in the following terms:--- {{URDU TEXT}} ' Resultantly, the appeal was disposed of in terms of the compromise vide judgment and decree, dated 18-9-1982. According to the petitioners, the respondent damaged the property in question and created such a situation amongst the prospective buyers that nobody was ready to purchase the house in question at the market rate. The abovesaid compromise decree was challenged by the petitioners in the civil suit, the plaint whereof was rejected by the learned trial. Court. Appeal as well as revision petitions against the order of rejection of the plaint failed. A petition for proceedings against the respondent in contempt were also lodged by the petitioners but the application was subsequently withdrawn. The petitioners thereafter filed an application before the learned trial Court seeking a relief of a passing of a final decree in terms of clause 4 of the compromise decree inasmuch as according to the petitioners it is the respondent who bas made it impossible for the petitioners to fulfil conditions of the compromise decree. This application has been contested by the respondent on the ground that the respondent has not violated any terms of compromise decree and the allegations levelled in the application with regard to the causing of damage to the property and complained of conduct of the respondent has also been controverted in reply to the application. Certain preliminary objections have also made which are to the effect that the compromise decree having been challenged upto this Court, this application is liable to be dismissed. The respondent also filed an application for passing of a final decree and delivery of possession of the house in question on the ground that due to the failure of the petitioners to pay the agreed amount, the respondent has become full owner of the house in question, hence, is entitled to the possession thereof. This application was also contested by the petitioners on the same ground on which they asked for passing of a final decree in their favour. Learned trial Court instead of putting the controversial questions of facts and law in issue and deciding the said applications on merits, vide order, dated 30-1-1985 passed a final decree in favour of the respondent to the effect that due to failure of the petitioners to deposit or pay the amount of Rs,90,000 to the respondent, their rights in the house in question shall be deemed to have been surrendered in favour of the respondent and, therefore, he is declared as full owner of the house in question and as such is entitled to the possession thereof. This judgment and decree was challenged by the petitioners in first appeal before the District Court, Lahore which has been dismissed by the Additional District Judge vide judgment and decree, dated 10-2-1988. These two judgments and decree have been challenged in this civil revision.
2. Mr. C.M. Latif Rawn, Advocate learned counsel for the petitioners has argued that the learned trial Court had no jurisdiction to pass a final decree without framing of issues regarding the controversial questions of facts and law and without giving an opportunity to the parties to lead evidence in support thereof, therefore, trial of the case stands vitiated and, hence, the judgment and decree rendered by the trial Court is illegal and without jurisdiction. Learned counsel further contends that the judgment of the lower appellate Court suffers from the same legal infirmity.
3. Mr. Zaheerud Din Chaudhary, Advocate for the respondent has argued that it was not necessary for the trial Court to have framed issues and to allow the parties to lead evidence in support of their respective contentions while taking a decision for passing of a final decree inasmuch as it stands established even otherwise that it is the petitioners who are at fault and have failed to make the payment within the stipulated period of time therefore, the decree passed by the trial Court and affirmed by the learned first appellate Court is lawful.
4. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. The applications submitted by both the parties for passing of a final decree in their favour have been contested by both the parties and controversial questions of fact and law arise out of the pleadings of the parties which could not have been determined without framing of issues and without giving an opportunity of leading evidence in support of the respective contentions of the parties. Consequently, trial Court has adopted the procedure which is not warranted in law while deciding the question of passing of a final decree, hence, has exercised jurisdiction illegally and with material irregularity. Therefore, the judgment rendered by the learned first appellate Court also suffers from the same infirmity. Both the judgments are not based upon any lawful material.
5. Resultantly, this civil revision is accepted, impugned judgments and decree is set aside and the case is remanded to the trial Court for decision of the same afresh. Learned trial Court shall frame issues arising out of the respective contentions raised by the parties in their pleadings in relation to the passing of the final decree and shall give proper opportunity to the parties to lead evidence in support of their contentions and then decide the suit finally within a period of three months w.e.f.
The date copy of this order is received in the Court. Parties are left to bear their own costs.