Iteftanosh Vs Bibi Gul Badora

JUDGMENT SHEET

PESHAWAR HIGH COURT ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

C.R.No.45-Al2009.

JUDGMENT

Date of hearing 14.03.2018.

Appellant / petitioner (Isteftanosh) by Mr. Muhammad Ilyas Khan, Advocate.

Respondent (Mst. Bibi Gul Badora and others) by Mr.Sajjad i\hmed Abbasi, Advocate.

s YED ARSHAD A ,L- Throu gh the present revision petition, petitioner has called in question the consolidated judgment/order dated 03.01.2009 passed by leamed Additional District Judge, Battagram, whereby the appeal filed by the pr-esent respondent against the judgrnent and decree dated30.04-2004 was accepted, the case remanded back to the leamed trial Court.

2.Brief but essential facts of the instant case are that present petitioner filed a suit against the respondents before Civil Judge, Battagram for declaration to the effect that the suit property fully 4c' explained in the heading of the plaint was originally owned by predecessor of the parties namely Pir Alam and thus on his demise, the said property had devolved upon the petitioner/plaintiff, defendant No'l and defendant

No.3 in accordance with their sharee sharcs. He has also challenged mutation No. 402 dated 25.11'1975 whereby land situated in Khasra Nos.20 and 25 was transferred to defendant No.l Maraj ul Alam by the predecessor of the parties and the subsequent mutation No. 1369 dated 28.1.1987, whereby the said property was further transferred to defendant No.2 Muhammad Jan' The petitioner has also prayed for possession and temporary injunction as the altemate relief. On being summoned, all the defendants contested the suit by filing their written statement. From divergent pleadings of the parties, the learned trial Court framed 09 issues and directed the parties to produce their respective evidence. On conclusion of trial, the suit of the plaintiff was decreed by leamed trial Court vide judgment and decree dated 30.07.2004. Defendants No.l and 3 challenged the said judgment and decree through appeal No.66l13 of 2008 whereas defendant No.2 Muhammad Jan challenged the said judgment and decree through separate appeal No.67l13 of 2008. While the said appeals were pending adjudication before leamed appellate Court, defendant No.l Maraj ul Alam instituted a suit No'103 on 26.3.2005 against the present petitioners and others 4' before civil Court at Battagram for declaration to the effect that the suit proPerty which is futly described in

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the plaint was originally owned by their predecessor Pir Alam and on his demise the said property had devolved upon plaintiff, defendant No.l and other sister of defendant and entries in the, revenue record whereby the petitioner was recorded as owner of the suit property was also challenged. When the petitioner was informed about the said suit through process of the Court, he contested the suit by filing his written statement. The plaintiff in suit No.l03 Maraj ul Alam had also filed an application for temporary injunction alongwith the suit. The said application was dismissed by leamed trial Court through order dated 02.8.2006. The said order was challenged before learned appellate Court through appeal No.17114 of 2008. All the above appeals were decided by leamed appellate Court through consolidated judgment/order dated 03.01.2009, whereby the case was remanded to leamed trial Court. The petitioner has challenged the said judgment/order through present revision petition.

3.Leamed counsel for petitioner has argued that evidence of the parties on the record was sufltcient / to decide the main appeal, therefore, the impugned judgment of appellate Court whereby the case was remanded to the trial Court is not justified. He placed reliance on Rehman Shah aud others Vs. Sher Afzal and others (2009 SCMR 462) md PLD Ashiq Ali and others

Vs. Mst. Zahir Fatima and others (2004 Supreme Court

4.On the other hand, leamed counsel appearing on behalfofthe respondents has supported the impugned judgment passed by appellate Court and has argued that the remand order passed by appellate Court

was justified under the facts and circumstances of the case.

5.Argument heard and record perused'

6.Petitioner/plaintifflsteftanosh, the defendant Maraj ul Alam and Mst' Hussan Parri are the legal heirs of Pir Alam' Prior to 1966 Battagram District was unsettled area and in the year 1966 settlement in the said

area was completed and Misl-i-Hakiat/revenue record was prepared for the first time' It is also on the record that predecessor of the parties Mir Alam had died after

settlement, however, his exact date of death does not

discem from the record.

7.Precise claim of the plaintiff was that the entire suit properlry originally belonged to their

predecessor Pir Alam, therefore, entry in the settlement

was recorded record whereby defendant Maraj ul Alam t as reflected in 4" as owner in Khasra No'453, 456 and 457 incorrect' the Misl-e-Hakiat for the yeat 1996-67 were

Similarly, he has also challenged the sale of land through mutation No. 402 dated 25.11.1975 whereby the suit property comprised Khasra Nos'20 and 25 was transferred by Pir Alam to Maraj ul Alam and subsequent mutation No. 1369 dated 28.1'1987 by Maraj ul Alam to Muhammad Janldefendant No.2 was also challenged'

8.Plaintiff in support of his claim produced i'e' patwari halqa as PW, who produced revenue record for Misl-e-Hakiat for the yeat 1966-67 and Jamabandi the year lggS-g9 as Ex:PWl/l and Ex:PW1/2' He also produced parth of mutation No'402 dated 25' I 1' I 97 5 and mutation No.1369 dated 28'1'1987' Plaintiff himself appeared as PW-3, whereas Yaqoob Khan son of Jan

Muhammad from whom defendant Maraj ul Alam claims

as DW- to have purchased a portion of property appeared

1.He has supported the stance of defendant No'l Maraj to ul Alam regarding the sale ofthe property by his father Pir Alam. The other son of Jan Muhammad namely Muhammad Afzal Khan appeared as DW-2 and also

son of supported the statement of 'defendant' Muqtadir person, appeared as DW-3 and Qalandar, a 60 years old Madanday has stated that property known as "Masooma 4 patll' orig\nally belonged to Jan Muhammad Khan which was mortgaged with Pir Alam and Maraj ul Alam'

appeared as Whereas defendant No'2 Muhammad Jan

DW-4, who claimed to be bonafide purchaser of portion of suit property which he purchased through disputed mutation No.1369 dated 28.1.1987 and defendant Maraj ul Alam did not opt to appear as his own witness' Thus the parties were provided firll opportunity to lead their the evidence and the leamed trial Court after appreciating evidence decreed the suit of the plaintiff against the

defendants and resultantly mutation No'402 and 1369 were cancelled only to the extent of share of petitioner/plaintiff and defendant No'3' g. The leamed , aPPellate Court had consolidated the appeals filed by Maraj ul Alam against the impugned judgment and decree of trial Court and judgment other filed by Muhammad Jan against the same and decree and the 3'd appeal which was filed by Maraj ul

trial AIam against interlocutory order passed by leamed Court in his suit No.103/1 which he filed against the

present petitioner, claiming therein that the property

in which was recorded in the name of present petitioner by the revenue record was indeed the property owned are entitled their predecessor Pir Alam and as such both shares' The to the same property in accordance with their

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4 reasons prevailed before leamed appellate Court were

that:-

(l)The plaintiff has not included the whole inherited property in the suit.

(2)The inheritance mutation ofthe predecessor of the parties has not so far attested.

(3)The leamed trial Court without discussing the evidence of plaintiff shifted the burden of proof to the defendants to establish his purchase, and

(4)Maraj ul Alam had filed a separate suit against the plaintiff wherein a similally relief was claimed'

10.The power and discretion of the leamed provided appellate Court to remand the case has been under Order 4l Rules 23 to 25 of Civil Procedure Code' For ease reference the same are reproduced below:- "2i. Remand of case by Appellate Court' an appeal Where the Court from whose decree is preferred has disposed of the suit upon ! pritiiirory point and.the decree is resemed in 'appeal, thl )ppellate Court may, if it thinla fit' ty ora", remand the case, and may further iirect what issue or issues shall be tried in the case so remanded, and shall send a copy ofits judgment and order to the Court from whose "d"ie" the appeal is preferred, with directions -tie to re-admit suit under its original number in the register of civil suits, and proceed to -i"i"rl*ni the siit; and the evidence ('f a"y) ,"i.ri"a during the original trial shall' r' ,u"ti*, to all just exceptions' be evidence duiing the trial after remand' Zlt.

'W"r" on record sfficient' "iid"n"" ippellate court may determine case finally'- Liiere the evidence upon the record to is sfficient to enable the Appellate ^Court prlnrun", i rdgment, the Appellate Court^may.' Tj"r- ,'"r"rilin{ the issues, if necessary'.finally ietermine thi suit, notwithstanding that the

judgment -appeal of the Court from whose decree the is prefeted has proceeded wholly .upo.n some griund other than that on which the Appellate Court Proceeds.

25.Where appellate court may frame issues and refer them for trial to Court whose decree appeaied from.-Were the Court from whose ii"re" th" appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears t: the Appellate Court essential to the right decision o|'the suit upon the merits, the Appellate Court iay, if necissary, frame issues, and refer the same for trial to the Court from whose decree the a)peal is preferred, and in such case shall direit' such Court to take the additional evidence required; and such Court shall issues, and shall return the -evidenceto try such proceed to the Appellate Court together with its findings thereon and the reasons therefor'

11.The power to remand the case thus could not while be exercised lightly but the leamed appellate Court exercising the power to remand the case should examine the evidence and if it comes to the conclusion that it is

not sufficient to pronounce the judgment or decide the issue between the parties then it can remand the case or

the may itself record evidence if so required and decide d er 1975 case. Fateh Ali Vs. Pir uh

CMR 221, S'her Muh an d others Vs Jamadar ^s

'hula mG,hous 198-r s 133, A rshad A n s.

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Messr,s Srp iss I akem and oth ers 1993 SCMR 2 16, Sved tm and o ers Vs. 'hulum Mohi PLD Abdul

1994 52 Ash Ali d oth ers Vs. Mst.

and oth ers PLD 2004 Sup rem eCo url 10 and Fa

Rehman Sh ah and other''s Vs. Sher A fzal an d others

2009 SCMR462.

12.Now moving to moot question as to whether grounds which prevailed before leamed appellate Court for remand of the case was legally justif,red and the case to could not be decided on the available record' Needless mention that leamed appellate Court did not point out

that which fact remained undetermined at trial' which

was essential for determination of the rights of the parties. The findings of learned appellate Court that the

in entire property of the deceased has not been included The the suit property are also based on no evidence' as to which leamed appellate Court did not mention that parties was not of the property of the predecessor of the included in the suit' Even otherwise if the plaintiff had

to which the omitted to include a portion of the property cause of action relates and on same cause of action the

suit was brought then obviously it is the plaintiff who

will face the consequences ofbeing precluded to bring a

fresh suit on the same cause of action but the same is

case' As far as nevertheless a ground to remand the

o pendency of suit No'103/1 frled by Maraj ul Alam y'' matter and can altogether relates to a different subject which would independently be decided on the evidence be produced before the leamed trial Court' The leamed

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counsel representing the respondents could not refer to any issue justifuing remand of the case to the leamed trial Court. Indeed evidence on the record is sufficient for pronouncement of j udgrnent.

13.In view of the above, the judgment and decree passed by learned appellate Court is not sustainable in the eyes of law, which is accordingly set aside, therefore, the case is remanded back to the learned appellate Court to decide the appeal on the available record. This being an old case, therefore, leamed appellate Court is expected to decide the appeal within a period of two months from receipt of the judgment of this Court.

UNCED

JUDGE

*Aftab P.SF Justice Syed Arshad Ali