MUNIR A. SHEIKH, J.---Leave to appeal has been sought against the judgment dated 30-9-1997 of the Lahore High Court, Multan Bench through which the civil revision filed by the petitioner against the judgments and decrees of the Courts below has been dismissed.
2. The petitioner/plaintiff filed a suit for declaration that he was owner in possession of the land in dispute measuring 11 Kanals, 8 Marlas on the basis of gift made by its allottee namely Chandoo, brother of his grandfather in 1952. Chandoo died issueless in 1953 and necessity to file the suit arose when on 2-10-1978, mutation of Inheritance No,3665 was sanctioned in favour of the sons of the brother of Chandoo, one of whom was Nawab, father of the petitioner to claim that the petitioner was the exclusive owner of the said land on account of gift.
3. The Trial Court in the first round of litigation originally dismissed the suit on 14-6-1980 on the ground that though the making of gift by Chandoo in favour of the petitioner, as a matter of fact, had been established but the same was not valid as the power to make the gift was conferred on the allottees of the evacuee land in the year 1956. During the pendency of the suit, the petitioner had, however, made an application for grant of permission to amend the plaint in order to take alternative plea that he had become the owner of land by way of adverse possession which was not granted. In appeal filed by the petitioner against the said judgment and decree of the Trial Court, the Appellate Court upheld the findings of the Trial Court that the gift made by Chandoo was not valid because the allottee at the relevant time had not been conferred power to alienate the evacuee land by way of gift but the appeal was accepted through judgment dated 20-1-1982 and the case remanded after allowing-the petitioner to amend his plaint to add a plea of adverse possession and for, disposal of the suit after framing of additional issues after the amendment of the plaint.
4. The petitioner admittedly did not challange the remand order on the question of validity of gift decided against him and participated in the proceedings before the Trial Court after remand. The trial Court after remand held that the petitioner had failed to establish that he had become owner of land through adverse possession, therefore, his suit was again dismissed through judgment dated 14-7-1987. Appeal filed by the petitioner against the said judgment was dismissed by the learned Additional District Judge through judgment dated 1-3-1988, against which revision petition filed by him in the High Court has been dismissed through the impugned judgment dated 30-9- 1997, against which this petition has been directed seeking leave to apeal.
5. Learned counsel for the petitioner, inter alia, contended:--
(a) That the petitioner was illegally declined the right of challenging the remand order, dated 20-1- 1982 on the question of validity of gift in the present revision petition against final judgment on the ground that no further challenge was made by him against the said judgment at the relevant time on the assumption as if the said remand order could be challenged by way of appeal as a matter of right whereas Order XLIII, rule, 1(u), C.P.C. Grants right of appeal against a remand order if appeal would lie against judgment passed in appeal but no appeal was maintainable against the judgment of the Appellate Court as the value of the suit for the purposes of court-fee and jurisdiction was Rs,200, therefore, he was well within his right under section 115, C.P.C. To challenge the legality of the said order in the present revision petition having been directed against the final judgment and decree of the Trial Court.
(b) That the findings of the Courts below that the making of gift by Chandoo had been factually proved, therefore, the petitioner had become the owner of the land under Muhammadan Law and merely because notification permitting the allottee of evacuee land to transfer the land by way of gift was made in 1956 did not affect adversely the validity of gift.
6. The contentions raised require further examination, therefore, leave to appeal is granted to consider the same.
7. Interim order, dated 28-1-1998 shall continue till the final disposal of the appeal.