Law:

Section:

(a) Civil Procedure Code (V of 1908) --O. XLI, r. 23 A & S. 107 High Court, while setting aside order of remand passed by District Judge, held, competent to decide case finally on merits Power to decide finally, held, not trammelled by grounds taken in under appeal, only limitation being that evidence on record be sufficient to enable Court to pronounce .¬[Remand of case]. Somasunderam Chatta v. Nachal Achi A I R 1935 Mad. 707; San t Ram and another v. Mst. Mohan Devi (1898) 33 P R 56; Jainul Abideen Marakayar and others v. Habibulla Sahib A I R 1928 Mad. 430 and Pramatha Nath Cho wdhury v. Kamir Mondai P L D 1965 S C 434 ref. (b) Constitution of Pakistan (1973) Art. 185(3) Leave to appeal New point Points neither taken before lower appellate Court nor mentioned in petition for leave to appeal Held, cannot be permitted to be urged' before Supreme Court. JUDGMENT SHAFI UR REHMAN,J. Leave to appeal was ranted in this case to examine the question of law whether in a first appeal against an order of remand made under Rule 23 A of Order XLI of the Civil Procedure Code by the District Judge, the High Court could go "into the merits of the case and finally decide it restoring the findings on all the issues as recorded by the trial Court." 2. The plaintiff, Jamadar Ghulam Ghaus, a brother of defendant. respondent No. 4 Qurban Ali Khan, claimed exclusive occupancy rights in land measuring 73 kanals in village Rajgarh, Chak No. 11 Main Line, Tehsil. Bhalwal District Shahpur. He further claimed that he had given this land to defendants respondents Nos. 1 and 2 for cultivation on batai but about two years before the institution of the suit these tenants had refuted his title and interest in the property and had also inducted defendant respondent No. 3 on the land. they had stopped paying the batai and on that account had become trespassers. He sought their eviction from the land and possession of it. The suit was contested and a joint written statement was filed by defendants Nos. 1 and 2 taking up the grounds that the land did not belong to the plaintiff but that in a partition it had fallen to the share of defendant respondent No. 4 and they had purchased the land…

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