MUNIR A. SHEIKH, J.- By this common judgment, we propose to decide Civil Petitions Nos. 2895-L and 3099-L of 2000 as questions of law and facts common in both of them.
2. The respondent in Civil Petition No. 3099-L of 2000 filed suit for the recovery of possession of the land in dispute from the' petitioners On the ground that he had purchased this land from Muhammad Hussain, Miraj Din and five sons of Sardar Muhammad. The suit was defended by the petitioners-defendants in the said petition on the ground that they were in adverse possession of the property apart from the fact that the same was a waqf property. All the Courts below have come to the conclusion that the land subject matter of the sale was not shown to have been.
Subject matter of a waqf, therefore, to that extent, it was not a waqf property. Sale in favour of the respondent-plaintiff was held to have been proved, therefore, a decree for the recovery of possession of the same was passed in his favour which was upheld in appeal. In the revision petition filed by the petitioners- defendant, the case has been remanded only to the extent of determining sale made by the vendors other than Miraj Din and Muhammad Hussain, for Miraj Din when appeared before the Trial Court admitted to have made sale of his share whereas Muhammad Hussain the other vendor denied having executed the sale-deed which was being relied upon by the plaintiffs, therefore, it was held that after the remand, if the sale by the other vendors is not proved, his suit; shall be decreed to the extent of share of Miraj Din which was determined to comprise land measuring 7 marlas according to the revenue record.
3. The other connected Civil Petition No. 2895-L of 2000 has been filed by the plaintiff challenging the closing of the case as regards proof of sale made by Muhammad Hussain also and it. Has been prayed that if the remand is to be made, it should be made for proof of sale by all the' vendors through further evidence and the plaintiff should not be debarred from proving sale by Muhammad Hussain also.
4. Learned counsel for the petitioner in CP 2895-L/2000 tried to argue that the findings of the Courts below and also of the High Court that the part of land which was subject matter of the sale from Khasra No. 2397 which was measuring 3 kanals 16 marlas and 109 sq. Ft was not waqf is not correct and should be set aside.
5. We are afraid, this cannot be done, for the findings of the Courts below are based on proper and elaborate appraisal of evidence produced by the parties. The portion of khasra No. 2397 allegedly purchased by the respondent in CP 2895-L of 2000 from the above . Mentioned vendors is not waqf property, therefore, the suit shall have to proceed qua the said portion and the respondent-plaintiff instead of being debarred from proving sale by all the vendors afresh in his favour of the entire land subject matter of the sale even by Muhammad Hussain has been restricted to prove sale by the vendors other than Muhammad Hussain only.
6. Civil Petition No. 3099-L/2000 is barred by five days whereas the connected civil petition No. 2895-L/2000 filed by the plaintiff is barred by one day.
7. At this stage, learned counsel for the parties agreed that both these petitions may be converted into appeal and the same partly accepted to the extent that the scope of remand of the suit should be extended to prove sale by all the vendors in favour of the respondent-plaintiff on the basis of further evidence to be led by the parties by maintaining the findings that the said portion of land was not waqf property.
8. By consent, these petitions are converted into appeals, they are partly accepted, in that the case is remanded to the Trial Court to allow the parties to produce further evidence for and against the sale allegedly made in favour of the respondent-plaintiff by all the above mentioned vendors. The findings of the Courts below that this part of the land was not waqf property and that the respondents had not become owners by way of adverse possessions are hereby maintained. The Trial Court is directed to conclude the proceedings after remand and decide the case within six months from the receipt of certified copy of this judgment.