' MUHAMMAD JEHANGIR ARSHAD, J.---Mst. Fazal Bibi who was the defendant before the learned trial Court is aggrieved of the order dated 12-4-1994 passed by learned Additional District Judge, Bahawalpur. Whereby the learned Additional District Judge, while accepting appeal of the respondent against the judgment and decree of the learned trial Court dated 26-1-1991 dismissing their suit, remanded the case to the learned trial Court after recasting certain issues with direction to afford opportunity to both the parties to lead evidence on Issue No.1 (recast), if they so require and rewrite the judgment giving findings separately on all the issues.
2. The facts briefly stated are that petitioners and respondent are brothers and sister respectively, having born from the loin of Syed Wassan Shah. On the death of said Syed Wassan Shah, the property detailed in the head note of the plaint was mutated in favour of petitioner as daughter of said Syed Wassan Shah. However, on 14-7-1981 the respondents filed a suit for declaration claiming that they were owners in possession of the disputed property on the basis of oral as well as written gift deed dated 14-4-1973 from petitioner in their favour. The suit was contested by the petitioner who in her written statement not only disowned the alleged gift dated 14-4-1973 by claiming it as forged, fictitious and collusive but also denied to have made any oral gift in favour of the petitioners. The learned trial Court framed the following issues:--
(1) Whether the impugned Tamleek deed dated 14-4-1973 is legal, valid and has been executed with free consent of the defendant? OPP
(2) Whether the plaintiffs have no locus standi to bring this suit? OPD
(3) Whether the suit is improperly stamped, if so, its effect? OPD.
(4) Whether the plaintiffs are owners in possession on account of impugned Tamleek deed dated 14-4-1973? OPP
(5) Relief.
3. On conclusion of the trial, the learned trial Court vide judgment and decree dated 26-6-1991 disbelieving the alleged gift deed dated 14-4-1973 (Exh. P-1) and also the claim of the petitioners to be owner of the property on the basis of oral gift, dismissed the suit. Against the said judgment and decree of the learned trial Court, Syed Jind Wadda etc. The present respondents filed an appeal which was heard by a learned Additional District Judge, Bahawalpur who vide his judgment and decree dated 12-4-1994 remanded the case to the learned trial Court with the following observations:-- "As observed earlier, in para. No.9 supra that the case of the appellant/plaintiffs was that respondent/defendant had made oral gift prior to executing Tamleek deed dated 14-4-1973 and in case under a proper issue covering such averments, the findings of the Court culminates in favour of appellant/plaintiffs, the findings on issue No.4 were bound to follow such findings resulting in its decision in favour of the appellant/plaintiffs. Thus, to my considered view, in this case the issues were not wholly covered all the averments made by the parties. Therefore, the issues are recast in the interest of justice as under:--
(1) Whether the defendant had made valid oral gift of the suit-land in favour of plaintiffs? If so, its effect? OPP.
(2) Whether the subsequent impugned Tamleek deed dated 14-4-1973, in support of oral gift, was validly executed with free consent of the defendant? OPP.
(3) Whether the plaintiffs are, owner in possession of suit-land on account of either oral gift or on the basis of Tamleek deed dated 14-4-1973? OPP.
(4) Whether the plaintiffs have no locus standi to bring this suit? OPD
(5) Whether the suit is improperly stamped? If so, its effect?
(6) Relief."
' This remand order has now been challenged by way of instant Civil Revision.
5. It has been strongly contended and rightly so by the learned counsel for the petitioners that the material already available on record was sufficient for the learned Appellate Court to have decided the appeal of the respondents and there was neither any need of recasting the issues nor to remand the case. Further contends that it is an established principle of law that when the parties are fully aware of the controversy and have led evidence then the question of framing or non- framing of issues or placing of right or wrong onus of the issues, becomes redundant. The learned counsel in support of his arguments has placed reliance on the case "Ashiq Ali and others v. Mst.
Zamir Fatima and others" (PLD 2004 Supreme Court 10) and "Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs" (2005 SCM R 152) to contend that the Hon'ble Supreme Court of Pakistan has disapproved the remand of case when the material already on record is sufficient for the Appellate Court to decide the case and the case could only be remanded when it becomes absolutely necessary and inevitable in view of insufficient or inconclusive evidence on record. His argument is that the main question before the learned trial Court was whether there was any gift having been made by the petitioner in favour of the respondents and both the parties fully knowing the controversy led the evidence. The petitioner got her alleged ,thumb impressions on the disputed gift deed (Exh.P-1) compared from the handwriting expert and got the report of the handwriting expert proved through Muhammad Ashraf Expert Finger Print D.W.-4. He has further contended that if the issues had not been properly framed by the trial Court, though not admitted, yet the same cannot be considered as a material irregularity or illegality affecting the merits of the case or the jurisdiction of the Court. Hence, the judgment and decree of the learned trial Court could not be set aside nor the case could be remanded to the trial Court on the ground of improper casting of issues. In this respect, the learned counsel has placed reliance on Section 99 C.P.C. He has next argued that since the parties were fully conscious of the controversy and availed the opportunity of leading evidence for and against on the issues, there was no necessity of remanding the case to the trial Court and the learned Appellate Court keeping in view the case-law referred to above, should have not remanded the cases to the trial Court.
6. On the other hand learned counsel for the respondents has strongly supported the remand order of the learned Appellate Court by raising the plea that as the question of oral gift followed by acknowledgement through the gift dated (Exh.P-1) were two distinct issues, the learned Appellate Court was therefore, justified in recasting the issues and remanding the case to the trial Court. The learned counsel has further argued that material available on record is not sufficient to avoid remand to the trial Court.
7. I have heard the learned counsel for the parties, perused the relevant record with their assistance and also gone through the cited case-law.
8. The issues already framed by the learned trial Court and recast now by the learned Additional District Judge, in his remand order do not reflect any controversy other than those already framed by the learned trial Court. The learned Appellant Court while remanding the case after recasting the issues failed to take note of the fact that in either eventuality it were the respondents being beneficiaries of the alleged gift who had to prove the existence/making of valid and lawful gift, may be oral or through written document because both the pleas had already been taken in the plaint and evidence to the effect was also led. The fact remains that to prove the existence of valid gift by the petitioner was the duty of the respondents and by bifurcating oral and written gift into two issues, the learned Appellate Court has in fact provided the respondent an opportunity of filing in the lacunae in their evidence. Otherwise, in the light of pleadings of the parties and the evidence led by the respective parties, there was no necessity of recasting any issue and the learned Appellate Court could easily decide the controversy on the basis of material available on the record. The petitioner is a lady and her grievance is that her brothers/respondents are out to deprive her from the valuable landed property devolved upon her after the death of her father as legal heir. She is being dragged into litigation since 1979 and to remand the case at this stage i.e. After a period of more than twenty years, would neither be in the interest of justice nor the same would promote the rule of law. The order of the learned Additional District Judge, remanding the case to the trial Court for deciding the matter afresh, is not only violative of the law declared by the Hon'ble Supreme Court in the above-referred authorities but also excessive exercise of jurisdiction, which is not sustainable and this Court must interfere in the exercise of its revisional jurisdiction under section 115, C.P.C. By declaring the same as without lawful authority.
9. The upshot of above discussion is that this Civil Revision is allowed and the impugned order dated 12-4-1994 is set aside with the direction that appeal filed by the respondents shall be deemed to be pending before the learned Appellate Court. The file of the case be immediately sent to the learned District Judge, Bahawalpur who may keep and decide the same either by himself or entrust it to some Additional District Judge at Ahmadpur Sharqia who will decide the same after notice to the parties. There is no order as to costs.