CH. IjAZ AHMAD. J.- The brief facts out of which the present revision petition arises are that plaintiff/petitioner filed a suit or declaration on 28-10-1978 in the Court of leamed Civil Judge Muzaffar-Garh to the effect that he was owner in possession of the land in dispute measuring 11 kanals 8 marlas forming 54/78 share in Khata No. 238 in Mouza Bhutiapur Tehsil and District Muzaffargarh. The contents of the plaint revealed that the property in dispute was owned and possessed by one Chandoo s/o Lakha in whose name this land was confirmed along with Nawaz s/o Hera jointly in 1952. The contents of the plaint further revealed that he is grand-son of the said Chandoo and he himself had get the land allotted; since Chandoo was an issueless and resided with the Petitioner/plaintiff who served him a lot and paid for his expenses; hence before his death the said Chandoo has gifted the property in dispute in his life tie to the plaintiff in possession of the same since 1953. Respondents got the mutation of inheritance No. 3665 sanctioned on 5-8- 1978 and are throating to interfere in the propriety rights of the petitioner, therefore, the petitioner sought a declaration in the alternative on the basis of his adverse possession continuously for more than L2 years. The respondents filed a written statement and controverted the contempts of the plaint. It is pertinent to mention here that only the legal heirs of Ismail contested the suit. The leamed trial Court framed the following: ISSUES.
(1) Whether the Chandoo deceased gifted away the suit property in favour of the plaintiff?
(2) Whether the Mutation No. 3665 in favour of the defendants was obtained by fraud misrepresentation, hence void illegal and ineffective qua the rights of plaintiff?
(3) If issues Nos. 1 and 2 are proved then whether the plaintiff is entitled to the relief claimed?
(3-A) Whether the plaintiff has become the owner of the suit land by adverse possession for the period of mote than 12 years?
(4) Whether the suit is not maintainable in its present form?
(5) Whether the plaintiff is estopped to sue because of his conduct?
(6) Whether the plaintiff has no cause of action?
(7) Whether the suit property is improperly described in the plaint, if so. . What is its effect?
(8) Relief.
The family tree of late Chandoo is as follows:- ((Table))
Lakho Pora ;---------------------------------- Chandoo dies issueless in the year 1983 I original allottee of the land in dispute)
(foi r sons) #tbs Ibrahim (dies issueless) in the lifetime of Chandoo #the Chragh Din (dies issueless) in the lief time of Chandoo Ismail Nawab Din
1. Muhammad Amin)
2. 3. #tbs
4. Muhammad Latif
5. Muhammad Shaft
6. Mst. Latifan
7. Mst Ruqia
8. #the
9. Muhammad Aslam)
10. Muhammad Akram)
11. Muhammad Yasin)
12. Muhammad Afzal
13. Mst. Bashiran t
14. Mst. Sharifan) daughters
15. Mst. Janatan During the pendency of the suit petitioner plaintiff filed application for amendment of the plaint to add ground of adverse possession. The trial Court dismissed the application as well as the suit ride judgment and decree dated 14-6-1980.
2. The petitioner aggrieved by the judgment and decree, filed an appeal before the District Judge, which was entrusted to Additional District Judge, who ride judgment dated 20-1-1982 confirmed the findings of the trial Court on Issue Nos. 2 and 3. And reversed the judgment on the application of amendment filed by the Petitioner/plaintiff before the trial Court in the following terms:- As the result of this discussion, the order of the leamed trial Court, by which the application for amendment of the plaint was rejected, is hereby set aside and the application is treated as granted. Resultantly, the impugned decree and judgment are set aside and the suit is remanded to the leamed trial Court with the direction to re-admit on its original number in the register of Civil Suits, to accept the amended plaint from the appellant plaintiff and thereby to decide the suit afresh after costing necessary issues and giving the decision on such issue in the light of above discussion.
On remand learned trial Court framed additional issue No. 3-A which the parties did not adduce further evidence on other issues, therefore, findings on Issues Nos. 1. 2 and 3 were maintained which were given by trial Court vide judgment dated 4- 6-1980 and dismissed the suit vide judgment and decree dated 14-7-1987 meaning thereby the trial Court also decided additional issue against the petitioner plaintiff.
3. The petitioner aggrieve ed by the judgment and decree of the leamed trial Court dated 14-7-1987 filed an appeal before the leamed Additional District Judge who vide his judgment dated 1-3-1988 dismissed the appeal: hence the present revision petition.
4. The leamed counsel of the petitioner contended that Issue No. 1 was decided in favour of the petitioner throughout, therefore, both the Courts below misread the record and decided Issues Nos.
2 and 3 against the petitioner plaintiff: when the findings of fact on Issue No. 1 is in favour of the petitioner plaintiff then question does not arise to decide Issues Nos. 2 and 3 against the plaintiff as the gift w as rightly made by late Chandoo in favour of the petitioner plaintiff. He further argued that gift was against law. He relied upon Abdul Rashid J. Pakistan P.L.D. 1962 S.C. 42). He further contended that petitioner challenged the remand order dated 14-6-1980 vide C.M. No. 79-C 93 w which was allowed subject to all just exceptions vide order dated 8-2-1993 by this Court. It is further contended that by virtue of Section 105 (2) C.P.C, is well w within legal right to challenge. He relied upon Syed Phut Shah v. Muhammad Hussain P.L.D. i991 S.C. 1051). He further argued that on the basis of Phul Shah's case that justice could not be sacrified on the alter of technicality which did not go to the root of the cause, insofar as the fairness thereof was concerned.
5. The leamed counsel for the respondents contended that Additional District Judge remanded the case \ide its judgment and decree dated 2-1-1982 to decide the suit afresh after casting necessary Issues and give the decision on such issues in the light of the above discussion. The remand order was not challenged before any higher forum, therefore, it is binding between the parties and the findings on Issues Nos. 2 and 3 are final qua the parties. He relied upon the judgment reported as "Mst. Nooran v. Shah Muhammad' (P.L.D. 1968 Lah. 433), 'Shah Din v. Feroze Din' (P.L.D. 1974 Lahore 481). Learned counsel further contended that findings on Issue No. 3 (regarding adverse possession) based upon Section 28 of Limitation Act. This was declared by the Supreme Court Appellate Bench against Injunctions of Islam in 'Maqbool Ahmad v. Federation of Pakistan' (1991 SCMR page 2063). He further argued that Section 28 of the Limitation Act was omitted vide Exemption Act No. 2 of 1995. Therefore, decree cannot be passed on the basis of adverse possession against the petitioner. He relied upon (P.L.D. 1988 S.C. 287) and 1994 SCMR 1637). It is further contended that C.M. No. 79- C 93 was fled after 11 years against remand order, dated 2-1- 1982. The revision petition was filed in 1988 whereas the application was filed on 6-2-1993. He further argued the time for filing the revision petition is 90 days and this Court cannot condone the delay regarding the filing of C.M. No. 79-093.
6. I have given my anxious consideration to the contentions of the learned counsel for the parties and also gone through the record. The petitioner is well within his right to challenge the remand order vide Section 105(2) C.P.C, but this Court has look into it whether the findings on the remand order is hit by principle of res judicata or not? Since the petitioner did not challenge the remand order and participated before the trial Court and findings of fact arrived at against him by the trial Court as well as by the first Appellate Court. He did not agitate the same on the well-known principle of estoppel and w aiver. I am fortified by the judgment in 'Shah Din v. Feroz Din and 2 others" (P.L.D. 1974 Lah. 481), and the relevant observation at page 486 is reproduced hereunder: 'The petitioner has participated in the proceedings, after retenant, before the Deputy Settlement Commissioner. Thereafter, he has appeared before the Appellate Authority and then has invoked revisional jurisdiction of the Settlement Commissioner against the appellate order of the Additional Settlement Commissioner against the appellate order of the Additional Settlement Commissioner.
His acquiescences in the order of remand disentitles him to challenge the validity of the order of remand. He has been sitting on the fence and now when he has lost the battle before the Settlement Mohy-ud-Din s case (2) applies with full force'.
Similar view was taken in Mst. Nooran's case (P.L.D. 1968 Lahore 433) and the relevant observation is reproduced hereunder: "I am unable to accept this argument because if the finality attached to the order of remand and not to the finding on which it is based then the legislative provision contained in sub-section (2) would become nugatory and nullified, and the higher Courts would be competent to interfere in appeals from all orders of remand, for I can hardly think of a case where the finding may be challenged bat the order of remand which is based on that finding should remain operative. Not only the order of remand is final and conclusive, but even the findings and the reasoning which the first Appellate Court may give in support of the order of remand are also final and conclusive.
Moreover, even if the Appellate Court may not agree with the reasoning that by itself will not help the appellants for the reason that unless the order of remand is set aside, the conclusion based on that finding and reasoning will remain operative against them".
I am also fortified by the judgment of the Supreme Court of Pakistan on the principle of estoppel and res judicata (P.L.D. 1971 SC 376) and (P.L.D. 1987 S.C. 145). It is admitted fact that Section 28 of the Limitation Act has been declared against the Injunctions of Islam in the above-mentioned judgment (1991 SCMR 2063) and Section 28 is also omitted from the Limitation Act ride Act 2 of 1995. Therefore, the contention of the leamed counsel of the respondent has force that decree cannot be passed in favour of the petitioner as law laid down by the Supreme Court in Ch. Muhammad Aslam Khan's case (1994 SCMR 1637), even otherwise the findings on Issues Nos. 2, 3 and 3-A are concurrently against the petitioner. This Court while exercising its jurisdiction under Section 115 CPC has very limited power to review the findings concurrently decided against the petitioner. The leamed counsel of the petitioner failed out to point out any legal infirmity and failed not point any piece of evidence which was misread or non-read by the Courts below.
7. In view of what has been discussed above this revision petition is dismissed with no order as to costs.