The brief facts out of which the present revision petition arises are that the property in question originally belonged to Imam Din father of the petitioners and respondents Nos,2 to 6. Khurshid Sultana respondent No,2 filed a suit for administration before Civil Judge 1st. Class, Faisalabad on 22-2-1976 by impleading all the legal heirs of Imam Din. She also prayed in the administration suit qua the partition of house No,B-90, Street No,6 Munshi Mohalla Faisalabad. The trial Court passed the preliminary decree on 2-12-1980. Khurshid Sultana, Shamim Akhtar, Muhammad Shafi, Mushtaq Ahmad, Sughra Begum and Mst. Anwar Sitara being aggrieved filed appeal before the Additional District Judge, Faisalabad who dismissed the same vide order dated 22-3-1982. The trial Court appointed local Commission to find out the position of the property in question whether the property in question was divisible or not. The local Commission submitted the report that the property in question was not divisible. During the pendency of the suit Muhammad Latif respondent No,1 purchased 6/13 share from other shareholders. Auction was held by the Court auctioneer on 24-3-1988 and the property was purchased by respondent No,1 Mst. Khurshid Sultana and Mst.
Shamim Akhtar filed objection petition with regard to the auction proceedings held by the Court auctioneer. The objection petition was-dismissed by the learned trial Court vide order dated 2-6- 1988. Khurshid Sultana, Shamim Akhtar, Muhammad Shafi, Mushtaq Ahmad, Sughra Begum and Mst. Anwar Sitara being aggrieved filed appeal before the Additional District Judge, Faisalabad who returned the same to the appellants to present before the competent Court. The aforesaid person filed Civil Revision No,548 of 1989 before this Court which was decided by this Court on 13-5- 1989 and held that the District Judge has pecuniary jurisdiction and the matter was sent back to the First Appellate Court. The learned Additional District Judge set aside the order dated 2-6-1988 vide order dated 3-5-1990. The trial Court framed the issues after remand on 20-12-1990 and fixed the case for evidence on 31-1-1991. Mst. Khurshid Sultana and Mst. Shamim Akhtar filed an application To withdraw their objection petition. The case was adjourned for decision for 9-2-1991.
Muhammad Shafi petitioner filed independent objection petition on 9-2-1991 and the case was adjourned for 6-4-1991. The trial Court dismissed the application of Muhammad Shafi on 6-4-1991.
Muhammad Shafi, Mushtaq Ahmad, Mst. Anwar Sitara and .Sughra Bibi filed appeal before the District Judge which was dismissed vide order dated 24-4-1991. Hence the present revision petition.
2. Learned counsel of the petitioner submits that the trial Court was erred in law to dismiss the objection petition filed by Muhammad Shafi as he alongwith others was party before the Additional District Judge as well as before this Court and the matter was remanded to the trial Court.
Respondent No,1 did not raise any objection qua the appeal filed by Muhammad Shafi alongwith Mst. Khurshid Sultana and Mst. Shamim Akhtar. He further submits that application filed by any of the co-sharers is deemed to have been filed on behalf of all the co-sharers in the property in question. Learned counsel of the respondents submits that Muhammad Shafi did not file independent objection petition but he filed an application on 9-2-1991 to pursue the objection petition filed by Mst. Khurshid Sultana and Mst. Shamim Akhtar. He further submits that Muhammad Latif purchased the property from the co-sharers to the extent of 6/13 share and the remaining property was purchased by Muhammad Latif in auction proceedings. He further submits that petitioner had paid all the purchase money to the parties. The brothers and sisters had filed suits and applications collusively and both the Courts below rightly dismissed the application of Muhammad Shafi with cogent reasons as is evident from paras. Nos,3 and 4 of the impugned order of the trial Court and paras. Nos,5 and 6 of the impugned order of the First Appellate Court. He further submits that remand order dated 13-5-1990 clearly reveals that trial Court was directed to decide the objection petition filed by Mst. Khurshid Sultana and Mst. Shamim Akhtar. He further submits that Muhammad ' Shafi had to file an objection petition under Order XXI, rule 90 within one month by virtue of Article 165 of the Limitation Act. He further submits that both the Courts below have given concurrent finding against the petitioner and the revision petition is liable to be dismissed.
3. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is admitted fact that appeal was filed by Mst. Khurshid Sultana alongwith Muhammad Shafi etc. Respondent No,1 did not raise any objection qua the appeal filed by Khurshid Sultana alongwith a stranger as Muhammad Shafi and others did not file objection petition before the trial Court. A Muhammad Shafi was party in Civil Revision No,548 of 1989 before this Court which was remanded to the Additional District Judge. The Additional District Judge finally set aside the order dated 2-6-1988 vide order dated 3-5-1990. It is pertinent to mention here that the respondents did not, as already mentioned above, raise any objection qua the appeal filed by Muhammad Shafi alongwith Khurshid Sultana, therefore, the judgment of the Additional District Judge dated 3-5-1990 is final between the parties as per principle laid down by the Honourable Supreme Court in Pir Bakhsh v. Chairman Allotment Committee (PLD 1987 S.C. 145). Even otherwise the petitioner had already been transposed as appellant/petitioner in the earlier round of litigation.
The trial Court can suo motu allow the petitioner to contest B the objection petition filed by Mst.
Khurshi& Sultana and Mst. Shamim Akhtar in view of Order 1, rule 10, C.P.C. as per principle laid down by the Honourable Supreme Court in Central Government of Pakistan and others v. Suleman Khan and others (PLD 1992 S.C. 590). Similarly First Appellate Court has also vast powers to allow the petitioner to contest the objection petition filed by co- C sharers Khurshid Sultana and Mst.
Shamim Akhtar under Order 41, rule 33, C.P.C. as per principle laid down by the Honourable Supreme Court in Suleman Khan's case (supra). It is also settled principle of law that every co- sharer is entitled to claim himself to be holding the possession of common property through the other co-sharer in actual possession thereof. In arriving to this conclusion I am fortified by the following judgments:-
1. Taj Din and others v. Mst. Sardar Begum (1993 M LD 724).
2. Saadat Ullah Khan and others v. Mir Playo (PLD 1970 Peshawar 150).
3. Rachappa Subrao Jadhaw Desai v. Shidappa Benkatroao Jadhaw Besai (AIR 1918 Privy Council 188).
4. The Honourable Supreme Court insisted that cases must be decided on merits instead of technicalities as per principle laid E down in Manager Jammu .and Kashmir State Property in Pakistan v. Khuda Yar and another (PLD 1975 S.C. 678). Both the Courts below erred in law to non- suit the petitioner on a technical ground.
5. In this view of the matter, this revision petition is accepted, the impugned orders of the trial Court and the First Appellate Court are set aside. Meaning thereby that the objection petition filed by Muhammad Shafi shall be deemed to be pending adjudication before the trial Court. Since the matter is pending adjudication between the parties since long the trial Court is directed to decide the application of Muhammad Shafi strictly in accordance with law within 4 months after receiving the order of this Court. In case respondent No,1 has not filed the reply of the application of Muhammad Shafi then he is directed to file reply of the application within 15 days from today. The parties are directed to appear before thetrial Court on 24-11-2001.