' The petitioner, Barkat Ali filed a suit for declaration and injunction to the effect that Lashkar Ali deceased was owner of land measuring 43 Kanals and 2 Marlas (the suit-land). And that said Lashkar Ali died on 25-12-1983 but in his lifetime Akbar Ali; father of defendant respondent, took over the suit-land and continued in possession of the suit property as a tenant. And that impugned gift-deed was forged and Fraudulent and no possession was transferred under the gift-deed in favour of Allah Ditta. The plaintiff/petitioner as such challenged the gift-deed, dated 18-1-1984, allegedly executed by Lashkar Ali in favour of Allah Ditta defendant/respondent. The petitioner in his plaint had asserted that being real brother of Lashkar Ali deceased, he was legally competent to challenge the purported gift-deed dated 18-1-1984.
2. The respondent as defendant filed contesting written statement whereupon following issues were framed by the trial Court:-- 'Issues (1)Whether the plaintiff is one of the legal heirs of Lashkar Ali deceased and therefore, entitled to any share of inheritance from the property of deceased? OPP (2)Whether the gift-deed dated 18-1-1984 is illegal against the facts based on fraud and misrepresentation and is ineffective upon the rights of the plaintiff? OPP (3)Whether the suit is not maintainable in its present form? OPP (4)Whether the present suit has not been properly valued for purposes of court-fee and jurisdiction, if so, its effect and what should have been the correct value? OPD (5)Whether the, present suit is false and has been filed with mala fide intentions?
(6)Whether the present suit is bad for misjoinder OPP or non-joinder of parties? OPD (7)Whether the defendant is entitled to any special costs under section 35-A, if so, to what extent?
OPD (8)Relief.
(3)The learned trial Court recorded the evidence led by the parties and by its judgment and decree dated 9-5-1992 deciding Issue No,1 . Held that plaintiff/petitioner was not the legal heir of Lashkar Ali deceased and thus being a stranger neither could inherit the property of deceased and nor could challenge the gift.
(4) The petitioner preferred an appeal before the District Judge, Sheikhupura. The learned Additional District Judge, Sheikhupura by his judgment and order dated 10-10-1995 reversed the findings of trial Court on Issue No,1 and set aside the said judgment and decree of the trial Court and remanded the case to the trial Court with the following directions:-- "For what has been discussed above, the above appeal is accepted and the impugned judgment and decree is set aside. Consequently, the case is remanded to the learned trial Court to decide Issues Nos.2 to 7 on the basis of evidence already brought on record after hearing the arguments of learned counsel for the parties strictly in accordance with law and to decide the case afresh. It may be clarified that the learned trial Court shall not touch the finding of Issue No,1 arrived at by this Court. There is no order as to costs. The parties are directed to appear before the learned trial Court on 29-10-1995."
(5)This judgment for absence of any challenge theret'o, became final. After remand of the case, the learned trial Court by his judgment and decree dated 25-7-1996 upon decision on Issues Nos.2 to 7, dismissed petitioner's suit. However, on Issue No,1, the learned trial Court observed that this issue already stood decided by the Appellate Court vide judgment dated 10-10-1995 in favour of the petitioner-plaintiff.
6.The petitioner preferred appeal before the District Judge against the judgment and decree dated 25-7-1996. The learned Additional District Judge by his judgment dated 21-7-1997 dismissed the appeal, hence the present civil revision.
(7)No one appeared on behalf of respondents, wherefor, they were proceeded against ex parte.
(8)The learned counsel for the petitioner drew attention of the Court to a fatal error committed by the learned Additional District Judge, while deciding appeal filed by the petitioner, the learned Additional District Judge despite finality attached to the judgment dated 10-10-1995 of learned Additional District Judge on Issue No,1 in favour of the petitioner, proceeded to re-decide the said issue. In para. 13 of the judgment, held that "Lashkar Ali deceased was not the real brother of the present appellant" and therefore, appellant cannot ask for cancellation of the gift deed. It is contended that the learned Additional District Judge could not have reviewed the findings which had already become final and it was under the influence of this finding that judgment on all other issues was rendered by the learned Additional District Judge resulting in dismissal of the petitioner's appeal.
(9) I have considered the submissions of the learned counsel for the petitioner and have also examined the record. As re-counted above, in first round of litigation, Issue No,1 regarding status of plaintiff as one of the legal heir of Lashkar Ali, was initially decided by learned Civil Judge against the petitioner-plaintiff. The matter then went in appeal and the learned Additional District Judge through his judgment dated 10-10-1995 reversed the above said findings of the learned Civil Judge on Issue No,1 and decided the same in favour of the petitioner. The case was remanded by the learned Additional District Judge to decide Issues Nos.2 to 7. It was also clarified by the learned Additional District Judge in his judgment dated 10-10-1995 that "the learned trial Court shall not touch the finding of Issue No,1 arrived at by this Court". Respondent failed to challenge the above said judgment of the learned Additional District Judge through available remedies.
10. As such, judgment dated 10-10-1995 became final. It was for this reason that in post-remand proceedings, the learned Civil Judge, though dismissed petitioner's suit on his findings given on Issues Nos.2 to 7, observed in his judgment dated 25-7-1996 that Issue No,1 already stood decided by the learned Appellate Court hence no further findings were given by the learned Civil Judge. It was thus surprising that the learned Additional District Judge, Ferozewala while deciding petitioner's appeal, proceeded to re-decide Issue No,1 in para.13 of his judgment by holding that:-- "It means that Lashkar deceased was not the real brother of the present appellant, rather he was the real brother of Akbar whose son has been given this land on the basis of gift by the deceased.
In view of these circumstances, I hold that in such-like circumstances the present appellant has got no ground to ask for the cancellation of the gift-deed as being the legal heir of the deceased. I further hold that the present appellant has not come with clean hands in this Court and he has filed this suit with a. Malice behind it without alleging any positive ground in favour of the pleadings alleged by him."
11. The learned Additional District Judge in fact exceeded his jurisdiction by re-deciding Issue No,1 as the same stood finally decided and settled in favour of the petitioner through judgment dated 10- 10-1995. The learned Additional District Judge had no jurisdiction to re-open the findings of the said issue as he was neither sitting in review nor in appeal upon judgment dated 10-10-1995. This Court, therefore, has no option but to set aside the findings of the learned Additional District Judge on Issue No,1 as recorded in the impugned judgment dated 21-7-1997 for having been pronounced in excess of authority vesting in the learned Additional District Judge.
12.Having found that the learned Additional District Judge had no jurisdiction to decide Issue No,1 and that he exceeded the authority vesting in him in re-deciding Issue No, 1 . It is but appropriate to set aside the judgment and decree dated 21-7-1997 completely for the reason that it cannot be ruled out that the learned Additional District Judge proceeded to record findings on all other issues under dominant influence of his findings on Issue No,1 that the petitioner had no locus standi to challenge the gift-deed purportedly made by Lashkar Ali deceased in favour of the respondent.
This finding, against the petitioner, was obviously basic to the entire controversy between the parties and thus was a dominant fact upon the mind of the learned Additional District Judge, while rendering the judgment on other issues as well. Influence of his conclusions and findings on Issue No,1 thus obviously could affect the conclusions and the findings of the learned Additional District Judge on other issues as well.
13. Interest of justice, equity and fairness, therefore, demands that the impugned judgment and decree dated 21-7-1997 be set aside and appeal be remanded for re-decision by the learned Additional District Judge, Ferozewala in accordance with law. This revision petition is thus, accepted. Judgment and decree dated 21-7-1997 is set aside. The case is remanded back to the learned Additional District Judge, Ferozewala for re-decision of the appeal in accordance with law.
Appeal shall be deemed to be pending before the learned Additional District Judge, Ferozewala, who shall, after granting due hearing to all the parties, re-decide the same preferably in a period of three months. In view of absence of the respondent, there shall be no order as to costs.
H.B.T./B-123/L .