' On 8-7-1981 the petitioner filed a suit for possession of suit land measuring 2 Kanals, 15 Marlas against the respondent. According to the plaint this land was owned by Miran Bakhsh son of Allah Ditta who made a will in his lifetime on 20-5-1920 declaring Waqf of entire property in the name of the petitioner with condition that his two wives/widows shall enjoy the usurfruct in their lifetime and on their death the property shall vest in the petitioner; that vide a Mutation No,9990 the entire property of Miran Bakhsh except the suit land was mutated in favour of the petitioner; that Mst.
Jewani widow of Miran Bakhsh proceeded to sell the suit land to the respondent vide sale, dated 26-11-1965. This sale was stated to be illegal and void being in violation of the terms of the Waqf.
The respondent in his written statement took the plea that he is in possession since 1965 and suit is barred by time; that the proper court-fee had not been paid; that the petitioner is estopped from filing the suit. Learned trial Court framed as many as 15 issues arising out of pleadings of the parties on 4-10-1981. It then proceeded to treat Issues, Nos.2 and 3 (pertaining to court-fee) and Issues No,4 (pertaining to limitation) as preliminary and decided the same in favour of the petitioner on 28-4-1982. Against this order respondent filed a revision which was allowed by a learned Additional District Judge, Sialkot, with direction that only Issue No,4 be decided as preliminary issue after recording the evidence of the parties. Evidence of the parties was recorded and issue was answered against the petitioner and plaint was rejected under Order 7, Rule 11, C.P.C.
On 23-4-1983. A first appeal filed by the petitioner was dismissed by a learned Additional District Judge, Sialkot on 18-12-1986.
2. Learned counsel for the petitioner contended that the learned Courts below have misread the evidence on record while deciding the Issue No,4 and consequently non-suiting the petitioner.
Learned counsel for the respondent on the other hand supports the impugned judgments and decrees.
3. I have gone through the copies of the record appended with this civil revision and I have examined the impugned judgments in the light of the same. It is but evident on record that the learned Courts below, particularly, learned Additional District Judge has fairly referred to matters which did not pertain to the said preliminary issue at all but to the issues touching merits of the case while recording their respective judgments. Just to quite by way of an instance I may refer the observations of the learned Additional District Judge at para. 5 of his impugned judgment. He states that Mst. Jewni was widow of testator Miran Bakhsh and she was owner to the extent of 1/8th share and after the death of testator she had executed sale-deed in favour of the respondent in respect of her own share then impliedly she had not consented to the will executed by her deceased husband. He then proceeded to discuss the limits on a Muslim owner in the matter of will. Now these matters do not at all pertain to Issue No,4 rather to the main issue on merits which is Issue No,12 to some extent and to Issue No,13 again a main issue on merits of their jurisdiction while ordering or insisting on a piecemeal trial. This civil revision is allowed and impugned judgments and decrees passed by the learned lower Courts are set aside. The result would be that the suit filed by the petitioner shall be deemed to be pending in the Court of learned Senior Civil Judge, Sialkot, where the parties shall appear on 30-5-2001. Learned trial Court shall then commence trial on all issues record the evidence of the parties and thereafter record its finding on said issues framed by it and proceed to decide the suit in accordance with law. The learned trial Court shall make the endeavour and see to it that the suit is decided before 30-6-2001. No order as to costs.
Revision allowed/