' MUHAMMAD NAWAZ ABBASI, J.---This single judgment proposes to dispose of Civil Appeal No,534 of 1995 filed by Mst. Bibi Sahiba and others against Mustaqir Shah and others and connected Civil Appeal No,535 of 1995 (Mst. Bibi Sahiba and others v. Ghulam Nabi and others) involving the common question of law and facts. These appeals have been preferred against the consolidated judgment dated 23-10-1994 passed by a learned Single Judge of Peshawar High Court, Bench Abbottabad, in two civil revisions filed by the respondent.
' The facts of the case in small compass in the background are that Syed Mahmood Shah, the predecessor-in-interest of the appellants, filed a civil suit bearing No,50/1 against Miskeen Shah and others in the Civil Court at Kohistan, Batgram, in respect of property bearing Khasra, Nos.1192 and 1194. The parties in the suit having compromised, made statement before the Court through their counsel and in consequence thereto, a consent decree was passed according to which 2/3rd share in the property was given to Syed Mehmood Shah and 1/3rd to Roshan, the vendee and defendant in the suit. The respondents in the present appeals being aggrieved of the consent decree passed in the suit, tiled an application under section 12(2), C.P.C. In the Court of Senior Civil Judge, Kohistan, at Batgram on 26-3-1983. This application was initially dismissed by the learned trial Judge vide order dated. 7-11-1989 and later in a revision petition filed by the present respondents, the District Judge, Mansehra, vide order dated 11-6-1991 remanded the case back to the trial Court for decision of the application under section 12(2), C.P.C. Afresh. In the post-remand proceedings, the learned trial Judge having framed a number of issues recorded the evidence of the parties and vide judgment dated 1-9-1991 dismissed the application. The respondents filed separate Civil. Revisions bearing Nos. 7 and 8 of 1994 in the Abbottabad Bench of Peshawar High Court and the learned Single Judge in the High Court, vide judgment dated 23-10-1994, having diluted the matter in detail, allowed the revision petitions with the following observations:-- ' The aforesaid statements of the witnesses are contradictory to each other, Roshan Khan and Mian Gul were not sure whether Miskeen Shah and Mustaqir Shah, who were to be adversely affected by the compromise, thumb-impressed or signed the compromise deed. The close scrutiny of the evidence only leads to the conclusion that the mode and the manner in which the alleged compromise was presented was not above board. It appears that alleged document was manipulated in mysterious circumstances on the basis of which compromise decree has been obtained. In such state of affairs, I tend to accept these revisions, set aside the compromise decree and remand the case back to trial Court with the direction to decide the case on merits in accordance with law after allowing the plaintiff to implead all the necessary parties in the suit.
Costs to follow the events."
' The present appeals arise out of the Civil Petitions bearing Nos.9 and 10 of 1995 against the impugned judgment and leave was granted vide order dated 7-5-1995 which is reproduced hereunder:- ' "The respondents/applicants challenged the judgment and decree in Suit No,50/1, decided on 4- 9-1982 by the learned trial Judge, through an application under section 12(2), C.P.C. On the ground that it has been obtained through fraud and collusion.
2. It was alleged that they were the owners in possessions of 1/3rd share in the suit property.
However, the petitioners brought a collusive, suit, without impleading the respondents as party to it, and got a consent decree whereby Syed Mehmood Shah was declared to be the owner of 2/3rd share and the remaining 1/3rd share was declared to be the ownership of Roshan Khan. This application was dismissed by the trial Judge on 1-9-1991. Two revision petitions were filed against the same judgment i.e, Civil Revisions Nos.7 of 1994 and 8 of 1994. Learned High Court vide judgment dated 23-10-1994 accepted both the revision petitions, set aside the compromise decree in Suit No,50/1 and remanded the case back to the trial Court with the direction to decide the case on merits in accordance with law after allowing the plaintiffs to implead all the necessary parties in the suit.
3. It was contended by the learned counsel for the petitioners that the learned High Court has misread the evidence and has also ignored the material evidence on which the trial Court had based its finding. In support of his contention the learned counsel referred to the following observation of the learned High Court in para. 6 of its judgment:-- ' It is admitted that the petitioner is in possession of the one of the houses and he is co-owner in the joint property which fact has also been admitted by Roshan Khan (R.W.1) and other'."
4. Roshan Khan (R.W.1), however, has not made any such admission rather he has stated "I am bona fide purchaser of the suit land. Ghulam Nabi Shah petitioner had got no right whatsoever in the suit land. However, residential house of the petitioner is situated in the vicinity of the suit land".
' Reference is also made to the copy of Jamabandi wherein respondent is not recorded as a co- owner in the suit Khasra number and the land in which the house of the respondent is stated to exist bears separate Khasra number. Leave in both these petitions is granted to consider whether, the High Court has misread and non-read the material evidence in setting aside the judgment of the trial Court".
' Learned counsel for the appellants while tracing out the history of the case contended that the respondents having no interest in the land, had no locus standi to challenge the decree and invoke the jurisdiction of Civil Court under section 12(2), C.P.C. The learned counsel next contended that in any case they had full knowledge of filing of suit and were also party to the mutation of sale in favour of Roshan, and therefore, they would be estopped to challenge the decree under section 12(2), C.P.C. Which was neither collusive nor based on misrepresentation or fraud. The learned counsel has argued that the order of dismissal of the application under section 12(2), C.P.C. By the learned Civil Judge being not suffering from misreading and non-reading of evidence, was not interfereable by the High Court in exercise of its revisional jurisdiction. The learned counsel, however, has not been able to satisfactorily establish from the record that respondents having no right and interest in the property had no locus standi to challenge the decree through an application under section 12(2), C.P.C. On the ground of fraud and misrepresentation. The dispute between the parties confined only to the extent of question relating to the genuineness of the compromise and the learned Judge in the High Court having scrutinized the evidence in detail, formed opinion that the compromise was of doubtful character and consequently, remanded the case to the trial Court for decision on merits. The appellants at the leave granting stage, without challenging finding of learned Judge in the High Court regarding the doubtful character of compromise, emphasized that respondents had no right in the suit property and Roshan Khan, who was defendant in the suit, was bona fide purchaser of the suit land. It was argued on behalf of the respondent that Ghulam Nabi Shah and Mustaqir Shah were co-sharer in the suit property and the suit was filed without impleading the respondents as party which was subsequently compromised adverse to their interest through concealment of their interest in the property.
We have heard the learned counsel for the parties at length and also perused the record with their assistance. The learned Judge in the High Court without commenting upon the claim of the parties in suit property on merits decided only a limited question relating to the character of the compromise as without determining of the disputed questions regarding the genuineness of compromise and the rights of parties in the property, the decree in the suit on the basis of compromise between the parties in the suit with exclusion of respondents would not be sustainable. The record does not suggest that the respondents were either strangers to the property or had no locus standi to challenge the decree. The controversy relating to the right, title and interest of the parties in the suit property cannot be resolved without recording the evidence and thus the learned Judge in the High Court has rightly remanded the case back to the trial Court for decision on merits.
' For the foregoing reasons, the abovesaid appeals fail and the same are, accordingly, dismissed with no order as to costs.