1982 PLP 822 (CLC)

Date of institution: 7th October, 1981. This revision petition is directed against order dated 7‑9‑1981 passed b5 the Additional District Judge on an application moved by the petitioners during the course of pendency of an appeal between the parties and which still stands pending. By the impugned order the prayer of the petitioners either for remanding the suit in appeal so as to be consolidated with the suit for possession of the land in dispute subsequently filed by the respondent and which is also pending between the parties in the court of the first instance or staying the appeal so that both the suits between the parties for the same land in appeals be disposed of together so as to avoid passing of conflicting decrees. The prayer of the petitioners was totally turned down and the suit of the plaintiff‑respondent in the trial Court was stayed without a prayer to that effect by either of the parties. The land in suit was not originally owned by Ali Mard Khan respondent It was during the pendency of the instant suit between Moulvi Muhammad Bakhsh father of some of the petitioners and some others that land in suit was sold to Ali Mard Khan by the original owners. Consequently on transfer of the land to him he was also impleaded as a party and after hearing the case, the suit of the petitioners was dismissed by the trial Court and an appeal against that decision was lodged in the Court of the District Judge for disposal and it awaits its decision. By the subsequent suit for possession of the land in suit it was asserted by respondent Ali Mard Khan that it was during the pendency of the previous suit filed by the petitioners that he was dispossessed under the orders of the High Court in criminal proceedings under section 145, Cr. P. C. which were initiated at his very instance and in a way that order of the High Court in reversing the order of attachment of the land in dispute thereby restoring the possession to the petitioners, has been made a date of occurrence of cause of action thereby starting a point of limitation to which the petitioners have objected that the land in dispute had never gone in possession of the respondent and that the order of attachment was set aside by the High Court in pursuance of which the delivery of possession was made to them from the custody of the receiver and as such their possession according to them cannot legally, be taken as disrupted and their adverse possession by prescription would be established in the long‑run. On these points there is no evidence on record before the lower appellate Court for determination of the case adequately. These are the new pleas to take shape of issues to be framed by the trial Court and proved and disproved thereof by production of fresh evidence to be led by the parties. In these circumstances the proper course for the Additional District Judge was to stay the disposal of the appeal till the suit for possession brought by the respondent comes to an end in the trial Court thereby to be followed by the aggrieved party to the first appellate Court when both the appeals shall be taken together for disposal according to law. That being so, .the impugned order is set aside by acceptance of this revision petition and the disposal of the appeal is stayed as indicated above and the trial Court is directed immediately to take up the suit for trial and dispose of the same expeditiously so that the matter in issue between the parties for being too old may not be protracted beyond a reasonable time. M. A. K.