CH. IJAZ AHMED, J.---We intend to decide the following appeals by one consolidated judgment arising out of the same impugned judgment of the Trial Court dated 1-6-1999:--
(i) R.F.A. No,296/1999
(ii) R.F.A. No,373/1999
2. The brief facts out of which the aforesaid appeals arise are that Khalid Javaid Anwar respondent No,1 in the aforesaid appeals filed a suit for partition of the house in question with possession along with consequential relief in the Court of Senior Civil Judge, Gujranwala. It is pertinent to mention here that initially the suit was filed on 1-12-1992 by Khalid Javaid Anwar respondent No,1 against Muhammad Shafique Anwar and Mst. Munira Rafique. During the pendency of the suit before the trial Court, Waqas Shafiq Anwar and Jawad Shafiq Anwar were impleaded as defendants Nos.3 & 4 in the suit. During the pendency of the suit, Muhammad Shafique Anwar has expired; therefore, his legal heirs were also brought on record. The contents of the plaint reveal that Khalid Javaid Anwar respondent No,1 plaintiff, Muhammad Shafique Anwar predecessor-in-interest of respondents Nos.2 to 7/defendants No,1 (i to vi) are sons and late Mst. Munira Rafique Anwar is widow of late Mian Muhammad Rafique Anwar, who expired on 4-10-1992 at Gujranwala; therefore, they are sole legal representatives of late Mian Muhammad Rafique Anwar. Late Mian Muhammad Rafique Anwar and late Mst. Munira Rafique Anwar are owners in possession of a residential house in equal shares built over 1/2 portion of plot No,11-A, Satellite Town, Gujranwala. Late Mst. Munira Rafique Anwar/defendant No,2 is already owner to the extent of 1/2 share in the suit house whereas the remaining half share owned by Main Muhammad Rafique Anwar, which has devolved upon his legal heirs as his successors in accordance with the injunctions of Islam. The parties are joint owners of the suit house and enjoying the possession of the same. Waqas Shafiq Anwar and Jawad Shafiq Anwar defendants Nos.3 & 4 in the plaint, who are sons of late Mian Muhammad Shafique Anwar/defendant No,1 in the suit claimed ownership of the property in question on the basis of an oral gift executed by late Mian Muhammad Shafique Anwar and Mst. Munira Rafique Anwar in their favour. The contents of the plaint further reveal that the claim of the aforesaid defendants in the suit is false and baseless. Late Mian Muhammad Rafique Anwar and Mst. Munira Rafique Anwa-never gifted the propert in question in favour of defendants Nos.3 & The contents of the plaint further reveal that application submitted by late Mian Muhammad Rafique Anwar and Mst. Munira .Rafique Anwar to the Housing and Physical Planning Department along with their affidavits are based upon fraud and forgery, which has been fraudulently prepared for the purpose of depriving respondent No, l/plaintif of his lawful share in the property in question. On the basis of the aforesaid circumstances, Khalid Javaid Anwar respondent No,1' has filed the aforesaid suit with the prayer of partition of the property in question in accordance with injunctions of Islam.
Muhammad Shafique Anwar/defendant No,1 has filed written statement, controverted the allegations levelled in the plaint on 5-3-1998, which is at page 21 of the Paper Book. Defendant No,2 in the suit Mst. Munira Rafique Anwar also filed written statement on 5-3-1998, which is at page 26 of the Paper Book. It is pertinent to mention here that this written statement was not signed by Mst.
Munira Rafique Anwar/defendant No,2. It is only signed by Kh. Aziz-ur-Rehman, Advocate. Waqas Shafiq Anwar and Jawad Shafiq Anwar/defendants Nos. 3 & 4 have also filed written statement on 5-3-1998, which is at page 32 of the Paper Book. Mst. Roshana Shafiq and others also filed written statement, which is at page 37 of the Paper Book on 23-11-1998. Mst. Munira Rafique Anwar also filed another written statement on 7-12-1998 which is at page 41 of the Paper Book which is not in consonance with the earlier written statement filed by Mst. Munira Rafique Anwar. Late Muhammad Shafique Anwar/ defendant No, 1 also filed another written statement on 2-10-1996, which is at page 43 of the Paper Book. Similarly, Mst. Munira Rafique Anwar/defendant No,2 also filed another written statement on 2-10-1996, which is at page. 48 of the Paper Book. Waqas Shafiq Anwar and.
Jawad Shafiq Anwar/defendants Nos.3 & 4 also filed another written statement on 2-10-1996, which is at page 53. Muhammad Shafique Anwar/defendant No,1 also filed written statement on 1-3-1993, which is at page 58. Mst. Munira Rafique Anwar filed another written statement, which is at page 62 on 1-3-1993, which is also signed by Mst. Munira Rafique Anwar. Mst Munira Rafique Anwar also filed an application before the Trial Court on 13-6-1998 that his counsel has not acted' upon her directions; therefore, she has cancelled power of attorney in favour of her counsel Kh. Aziz-ur- Rehman, Advocate and also has given power of attorney to Miss Zareen Siddiqi Advocate, which is at page 116 of the file. Out of the pleadings of the parties the trial Court framed the following issues:--
(1) Whether the plaintiff has no cause .Of action? OPD 1-2
(2) Whether the plaint is liable to be rejected under O. VII rule 11 C.P.C? OPD 1-2
(3) Whether valuation of the suit for purpose of court-fee is not correct? If so, what is the correct valuation? O.P. Parties.
(4) Whether the property in dispute is heritable estate left by late Mian Muhammad Rafique Anwar?
If so, what is the share of the plaintiff out of it? OPP
(5) Whether the property in dispute was transferred through oral gift by late Mian Muhammad Rafique Anwar to his grandson Muhammad Waqas Shafiq Anwar and Muhammad Jawad Shafiq Anwar (defendants Nos.3 & 4) on 16-7-1992 and delivered its possession to the donees who accepted the same? OPD1-2
(6) Whether Mst. Munira Rafique Anwar also orally gifted away her own property 1/2 of plot No,11-A/1, Satellite Town, Gujranwala on 16-7-1992 to Muhammad Waqas Shafiq Anwar and Muhammad Jawad Shafiq Anwar defendants Nos.3 & 4 and delivered its possession to the donees? OPD 2.
(7) Whether late Mian Muhammad Rafique Anwar and defendant No,2 made an application registered at serial No,6060 dated 27-7-1992 to the Housing & Physical Planning Department, Gujranwala for substituting the names of the above said donees as owners in their record? If so, with what effect? OPD.
(8) Whether defendant No,2 submitted a reminder application dated 20-10-1992 to the Housing & Physical Planning Department, Gujranwala for entering the names of Muhammad Waqas Shafiq Anwar and Jawad Shafiq Anwar as owners of 11/A-1, Satellite Town, Gujranwala, in their record? If so, with what effect? OPD-2.
(9) Relief. The Trial Court, as mentioned above decreed the suit vide judgment and decree dated 1-6-1999, hence, the aforesaid appeals.
3. Sh. Zia Ullah Advocate in R.F.A. No,296/1999 filed on behalf of late Mst. Munira Rafique Anwar submits that judgment of the trial Court is contradictory in nature as the trial Court did not accept the gift executed by late Mian Muhammad Rafique Anwar on the basis of the evidence of the parties but the gift executed by late Mian Muhammad Rafique Anwar in favour of Waqas Shafiq Anwar and Jawad Shafiq Anwar was accepted on the basis of the same evidence produced by the parties with regard to both the gifts. He further submits that Mst. Munira Rafique Anwar has been living with the respondents and she was not in the knowledge of the litigation in question in true sense and thereafter when she has come to know about the real controversy, she has filed written statement, controverting the stand taken by her in her earlier written statement and has also engaged another counsel. The trail Court erred in law not to consider the stand taken by her in the subsequent written statement in its true perspective. He further submits that there is no controversy in the contents of the plaint qua 1/2 portion of the property in question, which is owned by late Mst. Munira Rafique Anwar; therefore, trial Court erred in law to decree that suit in favour of the defendants in the suit on the basis of the written statement filed by her in the suit. The trail Court cannot grant relief to the defendants in the suit over and above the claim of the plaintiff in the plaint. He further urges that in view of the relief claimed by respondent No,1/plaintiff in his plaint, the trial Court had no jurisdiction or at least justification, both in fact and law to decide the inter se controversy of the defendants cropped up during the litigation.
4. The learned counsel of the respondents in R.F.A. No,296/1999 and appellant in R.F.A No,373 of 1999 submits that the trial Court has framed the issued in view of the pleadings of the parties and issue No,6 was framed. Parties have led their evidence; therefore parties were conscious about the controversy. The trial Court was justified to decree the suit to the extent of gift executed by late Mian Muhammad Rafique Anwar in favour of Waqas Shafiq Anwar and Jawad Shafiq Anwar. He further submits that the trial Court is not justified to decree the suit in favour of respondent No, 1/plaintiff in view of the gift executed by late Mian Muhammad Rafique Anwar in favour of the appellants. The trial Court erred in law to decree the suit without adverting to the evidence on record as the application was filed by late Mian Muhammad Rafique Anwar and Mst. Munira Rafique Anwar in the Housing & Physical planning Department, Gujranwala along with their affidavits, which was not finalized in view of the influence of respondent No,1/plaintiff. He further submits that findings of the trial Court with regard to the gift, which was executed in favour of the appellants Waqas Shafiq Anwar and Jawad. Shafiq Anwar, in Appeal No,373 of 1999, which is in accordance with the injunctions of Islam as all the ingredients are fulfilled but the findings of the trial Court is contrary to the injunctions of Islam and the evidence on record. Respondent No,1 has long standing litigation with his late father but this fact was not considered by the trial Court in its true perspective. The learned counsel of respondent No,1 submits that the impugned judgment and decree is valid.
5. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6. Mst. Munira Rafique Anwar has filed four written statements of which one written statement is at pages 26 to 31 of the Paper Book, filed on 5-3-1998. It is pertinent to mention here that this written statement was not signed by Mst. Munira Rafique Anwar/defendant No,2, it is only signed by her counsel Kh. Aziz-ur-Rehman, Advocate. Mst. Munira Rafique Anwar also filed another written statement on 7-12-1998 which is at pages 41 to 42 of the Paper Book, signed by her advocate as well as by Mst. Munira Rafique Anwar, which is not in consonance with the contents of the earlier written statement. In this she has taken a stand that property in question to the extent of 1/2 share is owned by her. Mst. Munira Rafique Anwar/defendant No,2 also filed another written statement on 2-10-1996, which is at pages 48 to 52 of the Paper Book, which is not signed by Mst. Munira Rafique Anwar. She filed another written statement, which is at pages 62 to 66, which is signed by the advocate as well as Mst. Munira Rafique Anwar, on 1-3-1993. Mst. Munira Rafique Anwar filed an application before the trial Court on 13-6-1998, which is at page 116 of the Paper Book that her counsel Kh. Aziz-ur-Rehman, Advocate is not acting in accordance with her instructions; therefore, she has cancelled power of attorney in favour of her counsel Kh. Azizur-Rehman, Advocate and also has appointed her counsel Miss Zareen Siddiqi Advocate, Gujranwala. It is better and appropriate to reproduce relevant provisions of C.P.C. To resolve the controversy between the parties:-- O. VI, R.2. Pleadings to state material facts and not evidence.--Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleadings relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figures. 0. XIV, R.1. Framing of issues.--(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. '
(4) Issues are of two kinds: (a) issues of facts, (b) issues of law.
(5)
(6)
' 0. XIV, R.2. Issues of law and of fact.--Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. 0. XIV, R.3. Materials, from which issues may be framed.--- The Court may frame the issue from all or any of the following materials:--
(a) allegations made on oath by the parties, or by any persons, present on their behalf, or made by the pleaders of such parties;
(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;
(c) the contents of documents produced by either party. 0. XIV, R.S. Power to amend, and strike out, issues.--(1) The Court may at any time bethre passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.
Order VI, Rule 2 contemplates that every pleadings shall contain, and contain only, a statement in a concise form of the material facts on which the party pleadings relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed' in figures. Order XIV, Rule 1(1)(2) & (3) prescribes that the issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (Under line is our).
Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.(Underline is our for the purpose of Emphasis) and each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. The object of framing issues is that the parties should be apprised of the points for which they are expected to lead evidence and to avoid any prejudice being caused to either side due to absence of material issues. Under Order XIV, rule 3 of C.P.C., all the material controversies in pleadings, applications and affidavits, statements, are to be covered in the form of issues to enable the parties to lead requisite evidence. Meaning thereby every material proposition affirmed by one party and denied by the other has to be a subject of distinct issue in terms of Rule 1 of Order XIV, C.P.C. Rule 5 of Order XIV, empowers the Court to amend issues, frame additional issues, necessary for determining the Court to amend issues, at any time before the passing of a decree. It is pertinent to mention here that issues are framed with regard to material facts as alleged in the plaint and denied in the written statement and from any other material along with the pleas of the parties. Issues are necessary matter, directly and substantially in issue between litigants. Civil Procedure Code is itself a Code providing mechanism to decide the controversy between the parties within the parameters prescribed under C.P.C. The Civil Procedure Code consists of two parts; Sections and Orders. Part 1 consists of sections, which is substantive law whereas second part consists of Orders, which is procedural in nature. It is duty and obligation of the Court to frame issues keeping in view the divergent pleas of the parties mentioned in the contents of the plaint and written statement. It is not the duty of the Court to frame an issue with regard to the controversy arising out of the written statement qua the controversy between the defendants in the suit; therefore, trial Court erred in law to frame issue No,6, which is purely inter se between the defendants, which is beyond the scope of the plaint. It is well-accepted principle of law that the issues arise from the material proposition of fact or law affirmed. By one party and denied by the other. The aim of framing issues is to ascertain the real dispute between the parties by narrowing down the sphere of controversy. As there was no allegation with regard to the property in question owned by Mst. Munira Rafiq Anwar in the contents of the plaint; therefore, it was unnecessary for the trial Court to frame issue No,6 and thereby record its finding in that respect. The error of framing of wrong issue and recording a finding on it is considered necessarily fatal in the given circumstances of the case to the impugned judgment and decree. Meaning thereby the issue in question i,e, issues Nos.6 being foreign to pleadings of the parties, was erroneous. As the issue No,6 is held erroneous, the finding on such issue is equally erroneous. Power to recast issues stands conferred by Rule 5 of Order XIV, C.P.C., which is required to be exercised for determining the matters in controversy between the parties and section 107, C.P.C. Empowers the appellate Court to perform the same duty. In arriving to this conclusion, we are fortified by the law laid down in Noor Din and others v. Muhammad Hussain NLR 1992 CLJ 78. Issue No,6 does not arise out of the pleadings of the parties because it only arises between the defendants in the suit. Plaint and written statement are undoubtedly pleadings, therefore, issues are to be framed on the basis of the allegations made by the parties in their pleadings to the extent divergent pleas between the plaintiffs and defendants but the trial Court erred in law to frame issue No,6 with regard to divergent pleas inter se defendants, which has no nexus with the contents of the plaint and relief claimed by the plaintiff in his suit. What are material proposition of law and facts, must be determined not merely from the allegations in the plaint but also from the defence put forward in the written statement; therefore, trial Court, as mentioned above, erred in law to frame issue No,6, which is deleted by us in view of the aforesaid discussion. Consequently findings on issue No,6 is also irrelevant to decide the present controversy arising in the suit filed by the plaintiff against the appellants.
7. In view of what has been discussed above the impugned judgment and decree to the extent of Mst. Munira Rafique Anwar is not sustainable in the eye of law; therefore, appeal is partly accepted to the extent of Mst. Munira Rafique Anwar. It is perinent to mention here that Mst. Munira Rafique Anwar has filed four written statements before the trial Court. We do not dilate upon this so that the case of either party may not be prejudiced. The parties may take benefit of the written statements before the competent authority/competent Court, of course, the competent authority/competent Court shall decide the same in accordance with law.
8. It is better and appropriate to reproduce basic facts in chronological order to resolve the controversy, between the parties with regard to issue No,5 out of which R.F.A. No,373/99 arises;--
(i) According to the version of defendants Nos.3 and 4, late Mian Muhammad Rafique Anwar has celebrated the birthday party of his sons Muhammad Shafique Anwar on 16-7-1992 wherein he has executed oral gift with regard to his share in the property in question in favour of defendants. Nos. 3 and 4 namely Waqas Shafiq Anwar and Jawad Shafiq Anwar;
(ii) Late Mian Muhammad Rafique Anwar died on 4-10-1992;
(iii) Respondent No,1 has filed suit for partition on 1-12-1992; ' Defendants Nos.3 and 4 have produced following witnesses and documents to discharge their onus with regard to the gift in question in their favour by late Mian Muhammad Rafique Anwar.
D.W.1 Walayat Ali Accounts Clerk, office of the Housing and Physical Planning Department, Gujranwala, received application from late Mian Muhammad Rafique Anwar and Mst. Munira Rafique Anwar on 27-7-1992. Muhammad Dawood D.W.2 (attended the birthday ceremony). D.W.
Shah Din, who identified the signatures on the application and affidavits. D.W.3 Muhammad Waqas Anwar, D.W.5 Muhammad Aslam Chief Security Officer of Anwar Group of Industries, who stated that property in question is gifted by donor in favour of defendants Nos.3 and 4 Exh.D-1 application submitted by late Mian Muhammad Rafique Anwar and Mst. Munira Rafique Anwar in the office of the Deputy Director, office of Housing and Physical Planning Department on 20-10-1992. Exh.D-2 application submitted by Mst. Munira Rafique Anwar on 20-10-1992 to the Deputy Director, office of Hosuing and Physical Planning Department, Gujranwala, Exh.D-3 affidavit of late Ivian Muhammad Rafique Anwar Exh.D-4 affidavit of Mst. Munira Rafique Anwar, Exh.D-5 affidavit of late Mian Muhammad Rafique Anwar. The star witness of the defendants Nos.3 and 4 is Muhammad Dawood Taseer D.W-2, who is stated to be family friend of late Mian Muhammad Rafique Anwar. He does not state a single sentence in his statement that whether the donees are present at the time of declaration of gift by late Mian Muhammad Rafique Anwar in favour of them and possession of the property in question was delivered to them coupled with the fact that the stand of the defendants Nos. 3 and 4 in their written statement is that both the donees were minors on 16-7-1992 whereas documents Exh.D-1 and Exh.D-2 show otherwise. Coupled with the fact that Dr. Muzafar Abbas and certain other notables of the city in question were present in the birthday ceremony, who are not produced to corroborate the statement of Muhammad Dawood Taseer D.W.2 whereas respondent has controverted the celebration of the birthday whereas Muhammad Waqas Shafiq Anwar admitted that it was not regular function. Muhammad Aslam D.W., 5 was not present in the birthday ceremony celebrated by late Mian Muhammad Rafique Anwar on 16-7-1992; therefore, trial Court was justified to ignore the evidence of Muhammad Aslam D.W.S. It is pertinent to mention here that affidavits consist of Exh.D-3. And Exh.D-5 are only affidavits to the extent to be presented to the Deputy Director, office of Housing and Physical Planning Department, Gujranwala.
The contents of the affidavits further show that late Mian Muhammad Rafique Anwar and Mst.
Munira Rafique Anwar do not own any plot in any of the Housing Scheme coupled with the fact that aforesaid affidavits do not bear any date, which are not attested by any Oath Commissioner and the name of the scribers are also missing. The defendants have produced Shah Din to prove the contents of the affidavits. His evidence was ignored/not believed by the trial Court with cogent reasons. The trial Court has given findings that stamp papers were purchased on 28-6-1992 and 15-6-1992. The trial Court after reappraisal of the evidence has decided issue No,5 in favour of respondent No,5 in the following terms:- "Under the circumstances, it is proved to the hilt that late Mian Muhammad Rafique Anwar never made any oral gift of the disputed property in favour of defendant Nos.3 and 4 on 16-7-1992. It is better and appropriate to reproduce basic facts to resolve the controversy between the parties with regard to issue No,5:-
(1) The alleged gift was executed orally on 16-7-1992 in the birthday ceremony arranged by late Mian Muhammad Rafique Anwar of his son Muhammad Shafique Anwar;
(2) In the said ceremony late Mian Muhammad Refique Anwar orally announced the gift of his share with regard to the property in question in favour of defendants Nos.3 and 4/appellants;
(3) Late Mian Muhammad Rafique Anwar died on 4-10-1992 and respondent No,1 has filed the suit on 1-12-1992. In case whole of the evidence of defendants Nos.3 and 4/appellants be put in a juxtaposition then defendants Nos.3 and 4 failed to prove that gift was executed.In their favour. The stamp papers were purchased on different dates and executed on the same date in terms of the evidence of D.W-3 whereas the same is not in consonance with the stand taken by the defendants Nos.3 and 4 in their written statement coupled with the fact that affidavits do not contain the name of the scribe and also did not contain date of execution; therefore, affidavits of late Mian Muhammad Rafique Anwar were rightly ignored or not believed by the trial Court with cogent reasons. Similarly, applications submitted by the donor in the office of the Deputy Director Office of Housing and Physical Planning Department, were also rejected by the trial Court with cogent reasons in view of the circumstances that the donors have only intimated to the Housing and Physical Planning Department that they did not have any plot in their names. The appellants/defendants Nos.3 and 4 are the beneficiaries of the' gift in question; therefore, it is duty and obligation of the beneficiaries to prove the execution of the gift which they badly failed in the present case. The statement of D. W.3 Shah Din is stated to be family friend, who also is not in a position to prove the same. Similarly D.W.5 Muhammad Aslam is not a witness of the' execution of the gift in question as _he was not present on the birthday celebration of Muhammad Shafique Anwar arranged by his father. Late Mian Muhammad Rafique Anwar. The contents of the documents reveal that defendants Nos.3 and 4/appellants are major whereas the stand taken by defendants Nos.3 and 4/appellants in their written statement that they are minors; therefore, trial Court was justified after noting the discrepancies in the evidence produced by' the appellants that appellants/defendants Nos.3 and 4 failed to prove the execution of the gift in their favour by late Mian Muhammad Rafique Anwar. We have reappraised the evidence on record and upheld the findings of the trial Court on issue No,5.
As mentioned above, issue No,5 is the basic issue with regard to this appeal, which has been decided against the appellants/defendants Nos.3 and 4 and consequently the findings on other issues are also upheld to the extent of the gift executed by late Mian Muhammad Rafique Anwar.
We do not find any infirmity or illegality with regard to the findings on issue No,5, which is upheld as the learned counsel of the appellants in R.F.A. No,373 of 1999 failed to point out any infirmity or illegality in the impugned judgment and decree. In view of what has been discussed above, this appeal is dismissed with no order as to costs.