1994SCMR1114 (PLP)

SAEEDUZZAMAN SIDDIQUI, J.‑‑‑The petitioners have sought leave to appeal against the judgment of Lahore High Court, Rawalpindi Bench, dated 8‑6‑1993, dismissing Civil Revision Application filed by the petitioners against the two concurrent judgments of the Courts below in limine. The circumstances leading to the filing of the above petition are, that one Amanat Khan, who was owner of the land measuring 8 kanals. bearing Khasra No.1271 situated in village Mithial, Tehsil Jand, District Attock sold the above land through registered sale‑deed, executed on 25-5‑1986, in favour of the respondents. The petitioners who claim to have entered into agreement of sale with the said Amanat Khan in respect of the land in dispute, instituted Civil Suit No.850 of 1986 against Amanat Khan on 19‑1‑1986 which was decreed on the basis of an admission made by the said Amanat Khan in the Court on appearance on 23‑11‑1986. The land in dispute was, accordingly, entered in the revenue record in favour of the petitioners on the basis of the consent decree passed in Civil Suit No.850/86. The decree passed in Suit No.850/86 was challenged in Suit No.353 of 1991 instituted by respondents Nos.1 and 2 against respondent No.3 and the petitioners. The suit was resisted by 1he petitioners and after recording evidence of she parties, the Civil Judge Ist Class, Jand passed the following order disposing of the suit:‑‑ "

21. In the light of my findings on said issues, the suit is dismissed with the observation that sale‑deed in favour of plaintiffs dated 25‑8‑1986 has preference over agreement deed dated 29‑1‑1986 and decree dated 23‑11‑1986 resulting thereby the same are ineffective upon the rights of plaintiffs and all the proceedings on the basis of said decree also against law. However, the parties are left to bear their own costs." The petitioners challenged the judgment/decree of 'the Civil Judge 1st Class, Jand, before the Additional District Judge, Attock, but without any success. The Civil Revision Application against the judgment of the first appellate Court was also dismissed in limine as aforesaid. The learned counsel for the petitioners contended before us that the Courts below failed to take notice that the effect of the judgment and decree passed in Suit No.353 of 1991 instituted by respondents Nos.1 and 2 is that the decree passed in favour of the petitioners in Suit No.850 of 1986 has been annulled which could not be legally done except upon an application filed by the respondents in Suit No.850 of 1986 under section 12(2) of the Code of Civil Procedure. It is further contended by the learned counsel that in any case the Courts below after declaring that the decree passed in Suit No.850 of 1986 could not effect the right of the respondents Nos.1 and 2 should have further directed that Suit No.850 of 1986 be tried afresh after allowing the petitioners to implead respondents Nos.1 and 2 as defendants in the suit. These contentions were specifically raised before the first appellate Court but it appears that no finding was given by the High Court on these controversies. We, accordingly, grant leave to appeal to consider the above contentions. A.A./G‑426/S Leave granted.