' On 18-11-1968 Haji, the deceased petitioner filed a suit against the respondents. According to the plaint the last male owner of the suit-land was Muhammad son of Ahmad. The petitioner claimed that whereas he is owner of 1/3rd share therein, 2/3rd vested in respondent Mst. Dullan (deceased defendant No,2), the predecessor-in-interest of respondents Nos.2 to 5. However, on the death of said Muhammad, Mst. Rasoolan, respondent No,6 got mutated half share out of 1/3rd share of the petitioner in her favour and thereafter proceeded to sell the same to respondent No,7. According to the plaint Muhammad son of Jalal, the father of said Mst. Rasoolan had predeceased Muhammad son of Ahmad, the last male owner and as such the petitioner was entitled to 1/3rd share in the suit-land. The suit was contested only by said Mst. Rasoolan who filed a written statement. She .Pbjected that the suit is not maintainable; that she has perfected her title by adverse possession.
On merits she stated that inheritance mutation has been rightly attested. Following issues were framed:--
(1) Whether the suit is incompetent in its present form? OPD.
(2) Whether the suit is within time? OPD.
(3) Whether defendant No,3 has become the owner of the land in suit by adverse possession for 12 years or more? OPD.
(4) Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction? If so, what is the correct valuation? OPD.
(5) Whether the plaintiff is the owner in possession of the land in suit to the extent of 1/3rd share by inheritance? If so, with what effect? OPP.
(6) Whether the defendant No,3 is not entitled to any share out of the land in suit? OPP.
(7) Relief.
' Evidence of the parties was recorded. The learned trial Court recorded findings on all the said issues. Under Issue No,1 the form of the suit was found to be proper. Under Issue No,2 it was found that the suit was within time. Under Issue No,3 it was found that the parties are co-heirs and as such the suit is within time. Under Issue No,4 it was found that the suit is properly valued for the purposes of court-fee. Issues Nos.5 and 6 were discussed together and it was found with reference to evidence on record that Muhammad son of Jalal predeceased Muhammad son of Ahmad as such Mst. Rasoolan was not entitled to inherit the said estate. The suit was accordingly decreed vide judgment and decree dated 8-3-1979. Against this judgment and decree Khuda Bakhsh, respondent No,7 filed an appeal. This appeal came up for hearing before a learned Additional District Judge, Sargodha who proceeded to allow the same and to dismiss the suit of the petitioner.
2. Learned counsel for the petitioner contends that the impugned judgment of learned Additional District Judge is no judgment at all in the eye of law. According to the learned counsel the learned Additional District Judge has proceeded to record findings on questions which were never in issue between the parties and has also proceeded to reverse the finding on issues which were not even pressed before him. Learned counsel for respondent No,7 has tried to support the impugned judgment and decree of the learned Additional District Judge.
3. I have gone through the records appended with the Civil Revision. I feel no hesitation in finding myself in agreement with the learned counsel for the petitioner.
4. As slated by me above, the suit was only contested by Mst. Rasoolan. She did not file any appeal.
An appeal was tiled by Khuda Bakhsh who had not contested the suit at all. He had not filed any written statement. However, since he was already a defendant to the suit and the judgment and decree of the learned trial Court was against him, the right of appeal cannot be denied to him.
5. The learned Additional District Judge has himself recorded in para. 5 of the impugned judgment that only Issues Nos.5 and 6 were contested before him. However, immediately after making the said note the learned Additional District Judge proceeded to record the contentions of the said appellant before him which have nothing to do with Issues Nos.5 and 6 but are concerned with Issues Nos.1 and 3.
6. Completely oblivious of what he has noted in para. 5 of his judgment, in para. 7 he proceeds to hold that Mst. Rasoolan was an owner in possession of the suit-land because she is so recorded in the Revenue Record (Exhs.D.2, D.3 and D.4) and as such she was competent to sell the land to Khuda Bakhsh, appellant. While so recording the said findings the learned Additional District Judge appears to have completely forgotten that the Revenue Record (Exhs.D.2, D.3 and D.4) reflects the position in accordance with the impugned mutation of inheritance.
7. There is not a word in the entire judgment as to whether Mst. Rasoolan was entitled to inherit the suit-land from Muhammad son of Ahmad as held by the learned trial Court and as to whether the learned trial Court was right in concluding that she is not so entitled.
8. One is really shocked to read in the impugned judgment the observation of the learned Additional District Judge that since Mst. Rasoolan was in possession of the property she was competent to sell the same.
9. Learned Additional District Judge proceeds to observe that the sale-deed was executed in favour of respondent No,7 on 25-6-1968 (Exh.D.1) and because of this fact alone the respondent No,7 is a bona fide purchaser. The learned Additional District Judge failed to note that respondent No,7 had not filed a written statement and never took the plea that he was a bona fide purchaser.
10. Learned Additional District Judge has also failed to read the evidence of D.W.3 and D.W.4 who admitted that Muhammad son of Jalal predeceased Muhammad son of Ahmad and as such Mst.
Rasoolan was not entitled at all to inherit the estate of the last ' male owner i,e, Muhammad son of Ahmad.
11. During the course of hearing of his Civil Revision I had given my mind to remand the appeal for a rehearing but after examining the judgment and the other record I find that it would not serve any purpose. The basic plea of the petitioners that Mst.Dullan was not entitled to inherent the estate of Muhammad son of Ahmad stand admitted. There is no question of possession of Rasoolan being adverse. So far as the question of bona fide purchase is concerned, there being no written statement and consequently no plea, evidence if any, on the said plea cannot be even looked into.
The form of the suit is also correct as the petitioner is a co-sharer in the suit-land.
12. As a result of the above discussion I find that the learned Additional District Judge has grossly misdirected himself and consequently has acted with material irregularity in the exercise of his jurisdiction while allowing the appeal of respondent No,7. Resultantly this Civil Revision is allowed.
The judgment and decree dated 7-3-1983 of learned Additional District Judge, Sargodha are set aside, while that dated 8-3-1979 of learned trial Court are restored with costs throughout.