' JAWWAD S. KHAWAJA, J.---The petitioners/defendants impugn the appellate order, dated 17-3- 1999 whereby the decree of the learned Trial Court, dated 22-7-1996 was set aside and the matter was remanded for decision afresh. The sole reason which prevailed with the learned Appellate Court was that issue No,1-A which had been framed by the learned trial Court had not been decided through its judgment. Issue No,1-A was framed in the following terms:- ("1-A) Whether the order of the Collector, dated 6-4-1961, is illegal, void, collusive and against the facts, therefore, not binding upon the right of the plaintiff? OPP"
2. After having heard both learned counsel and having examined the record, I am clear that the remand order was not justified.
3. The brief facts of this case are that one Mubarik Ali Shah was owner of 354-Kanals of land. Vide Mutation No,185 (Exh. P.6), dated 4-5-1982, he gifted 198-Kanals out of the aforesaid land to his son Syed Afzaal Ali Shah (petitioner No,2). The balance land was gifted to the remaining three petitioners, who respectively are his widow and twodaughters. This was done vide Mutation No,1119 (Exh.P.7) sanctioned on 17-6-1986. At this juncture it is relevant to note that Mst. Irshad Begum (petitioner No,3) daughter of Mubarik Ali Shah, was married to respondent No,3 namely, Mubashir Ali Shah, but their marriage had ended in divorce.
4. The respondents/plaintiffs filed a declaratory suit that the above-referred land had been gifted by Mubarik Ali Shah to them and others vide Mutation No,5 sanctioned on 25-8-1960. On this basis they claimed title to the suit-land. Based on the pleadings of the parties, the learned Trial Court framed as many as 14 issues including that of relief. However Issues Nos. 1, 2 and 5 are pivotal in this case and are dispositive of the matter in band. These three issues were framed in the following terms:-- "(1) Whether the plaintiffs are in possession of land in dispute as co-owner and impugned Mutation No,815, dated 27-8-1982 and Mutation No,1119, dated 17-6-1988 in favour of the defendants Nos. 2 to 6 are illegal, void, inoperative hence not binding upon the rights of the plaintiffs? OPP
(2) Whether the plaintiffs are entitled to the injunction as prayed for? OPP
(5) Whether the suit is within time? OPP."
5. Here it is worth-noting that the respondents/plaintiffs did not produce Mutation No,5. Which was the basis of the title asserted by them. They also did not produce any Rapt Roznamha in respect of the said mutation. The respondents/plaintiffs, on the other hand, produced the order, dated 6-4- 1961 (Exh.D1) passed by the Collector, Pakpattan, whereby Mutation No,5 was set aside as a result of a consent order. In this order (Exh.D.1), it was noted that possession of the land in question had never been delivered to the respondents/plaintiffs. The record also shows that the respondents/plaintiffs were never in possession of the disputed land. Only respondent No,3, Mubashir Ali Shah at one point appeared in possession of a portion of the land but that too in his capacity as husband of petitioner No,3, namely Mst. Irshad Begum. In these circumstances, the very basis of the claim set up by the respondents/plaintiffs stands demolished. It is worth-noting that it was for the respondents, as plaintiffs, to prove their title. The circumstances noted above show conclusively that Mutation No,5 was not proved and further that no gift independent of the said mutation was proved to have been made in their favour by Mubarik Ali Shah. The evidence also shows that it is only after the breakup the marriage between petitioner No,3 and respondent No,3 that the declaratory suit, out of which this petition arises, was filed by the respondents/plaintiffs. The suit clearlywas motivated by mala fides and for this reason also discretionary relief by way of declaration was to be declined.
6. At this juncture it is also to be noted that the respondents/plaintiffs claimed that they were minors when the order of the Collector (Exh.D.1) was passed and, therefore, the same could not be held against them. This may be so. However, even if the respondents were minors, they youngest among them attained majority by the latest in 1978. The declaratory suit of the respondent, however, was filed on 29-6-1991. On this ground, it was rightly dismissed by the learned Trial Court on the ground of limitation.
7. I now take up for consideration the impugned remand order whereby the decree of the learned Trial Court was set aside solely on the ground that it had failed to decide Issue No,1-A, considering the circumstances which have been discussed abOve, I am not in any doubt that even if the Collector's order (Exh.D.1) was held to be void and ineffective as against the respondents/plaintiffs, the respondents were bound to fail firstly because they could not prove the making of a valid gift in their favour and, secondly, because their declaratory suit was patently time-barred. Additionally because of the mala fides of the respondents/plaintiffs noted above, they were also disentitled to the declaration sought by them.
8. In the foregoing circumstances, the impugned remand order is set aside and the decree of the learned Trial Court is affirmed.