' SYED SAKHI HUSSAIN BOKHARI, J.--- We propose to dispose of above appeals by this common judgment as both arise out of same judgment. These appeals are directed against the judgment dated 17-1-2006 passed by Peshawar High Court, D.I. Khan Bench whereby Civil Revision No,189 of 2003 brought by respondents Nos.1 to 4 in Civil Appeal No,263 of 2006 and appellant in Civil Appeal No,300 of 2006 against the judgment, dated 23-10-2003 passed by learned Additional District Judge, D.I. Khan was partly allowed.
2. Relevant facts for the disposal of these appeals are that Rehmatullah Khan (appellant/plaintiff in C.A. No,263 of 2006) filed a suit for possession through pre-emption against Ghulam Farid son of Ghulam Nabi, Mst. Zulaikhan Bibi, Mst. Rabaka Bibi, Qurban Ali and Ghulam Farid son of Muhammad (respondents/defendants Nos.1 to 5 in C.A. No,263 of 2006) regarding land situated in village Sagu.
Janoobi, Tehsil and District D.I. Khan. The appellant/plaintiff stated that respondent/defendant No,5 was owner of suit-land (measuring 40 Kanals) and he sold the same to respondents Nos.1 to 4 vide Mutation No,1287, dated 25-3-1999 but to defeat his right of pre-emption Exchange Mutation No,2334 was attested and the same is illegal, void and ineffective qua his rights. The appellant/plaintiff further stated that he had superior right of pre-emption because his land was contiguous to the suit-land. He came to know about the sale in question through Muhammad Ramzan son of Ghulab at 4-00 p.m. On 5-5-1999 when he was present at Mishkatabad Dakhli Sagu Janoobi, therefore, he made YTalb-e-Muwathibat" in the presence of Muhammad Ramzan mentioned above. Therefore, he sent notice "Talb-e-Ashhad" on 18-5-1999 and filed suit against respondents/defendants. The respondents/defendants mentioned in written statement that it is not a sale rather suit-land was obtained by them through exchange for better management, therefore, suit brought by appellant/plaintiff is not maintainable. Also that appellant/plaintiff was present at the time of attestation of exchange mutation but despite the same he had not made "Talbs" in accordance with law. On the pleadings of the parties following issues were framed:--- "(1) Whether the plaintiff has got a cause of action and locus standi? OPP
(2) Whether the present suit is time-barred? OPD
(3) Whether the plaintiff is estopped to sue by his own conduct?
(4) Whether the plaintiff has superior right of pre-emption? OPP
(5) Whether the plaintiff has made Talbs according to the prevailing law? OPP
(6) Whether the impugned transaction is a transfer for the purpose of better management, hence exempted from pre-emption? OPD
(7) Whether the plaintiff has waived of his right of pre-emption, if any? OPD
(8) What is the market value, of the suit property? OPP
(9) Whether the plaintiff is entitled to the decree as prayed for?
(10) Relief."
3. The parties adduced evidence in respect of their respective claims and after hearing the parties, learned trial Court decided Issues Nos.1, 5 and 6 against the plaintiff and dismissed the suit vide judgment, dated 24-10-2002. Rehmatullah, appellant/plaintiff, filed appeal thereagainst which was accepted vide judgment, dated 23-10-2003 passed by learned Additional District Judge-I, D.I. Khan.
The respondents/ defendants filed revision petition thereagainst which was allowed to the extent of respondents Nos.1 to 3 (Ghulam Farid son of Ghulam Nabi, Mst. Zulaikhan Bibi and Mst. Babaka Bibi) and suit brought by appellant/plaintiff to the extent of 20 Kanals was dismissed whereas revision to the extent of Qurban Ali (appellant in C.A. No,300 of 2006 and respondent No,4 in C.A. No,263 of 2006) was dismissed vide impugned judgment. Now Rehmatullah, appellant/plaintiff has filed Civil Appeal No,263 of 2006 whereas Qurban Ali has filed Civil Appeal No,300 of 2006.
4. We have heard the arguments of learned counsel for the parties and perused the record. As mentioned above Rehmatullah, appellant/ plaintiff had filed suit for possession through pre- emption against respondents/defendants Nos.1 to 4 (in C.A. No,263 of 2006) regarding suit-land (measuring 40 Kanals, situated in Sagu Janoobi). The land was transferred on the basis of exchange Mutation No,1287, dated 25-3-1999 which was between respondents Nos.1 to 4 and respondent No,5 Ghulam Farid son of Muhammad. The case of Rehmatullah, appellant/plaintiff is that it was not exchange rather respondents Nos.1 to 4 purchased the suit-land and to defeat his right of pre-emption aforesaid exchange mutation was sanctioned. However, the case of respondents Nos.1 to 4 is that they obtained suit-land through exchange for better management, therefore, suit for possession through pre-emption is not maintainable. As mentioned above learned trial Court framed ten issues. However, while deciding the case learned trial Court gave findings only on Issues Nos.1, 5 and 6. Learned counsel for Qurban Ali (appellant in C.A. No,300 of 2006) submits that issues Nos.2, 3, 4, 7 and 8 were material issues but learned trial Court has not decided the same. Further submits that learned Additional District Judge decided Issues Nos.2, 3, 4 and 8 without notice to the respondent/defendant, therefore, he has been condemned unheard and that sufficient evidence was not available on record to decide Issue No,8. Learned counsel has prayed for remand of the case for decision afresh as, according to him, case of the present appellant has been seriously prejudiced. On the other hand learned counsel for Rehmatullah, appellant/plaintiff submits that Qurban Ali has not produced any evidence in support of his case, therefore, suit brought by appellant/plaintiff deserves to be decreed in toto and there is no need to remand the case. We have considered the respective submissions made by learned counsel for the parties with care. As stated earlier learned trial Court has not decided Issues Nos.2, 3, 4, 7 and 8.
These are material issues in this case but learned trial Court did not record findings thereon. It shows that trial Court acted hastily. Learned Additional District Judge has decided Issues Nos.2, 3, 4 and 8 but case of Qurban Ali is that no notice was given to him by learned Additional District Judge about the same, therefore, he has been condemned unheard and this has prejudiced his case. It is pertinent to note that even learned Additional District Judge has not given finding on Issue No,7.
The judgment passed by learned High Court shows that revision petition brought by respondents/defendants was disposed of only on the basis of finding on Issue No,6. So learned High Court did not give finding even on Issue No,5. Likewise judgment of learned Additional District Judge was kept intact to the extent of Qurban Ali but there is no order about payment of amount (sale price) to be paid to the vendee. The revision petition brought by respondents/defendants shows that they have also challenged the findings on other issues. It is clear from the material available on record that evidence has not been properly appreciated at any stage. As such we find that it is in the interest of justice that case be remanded to trial Court for decision afresh. So these appeals are accepted, impugned judgments are set aside and case is remanded to the trial Court for decision afresh on merits and in accordance with law. Learned trial Court would give findings on all issues after hearing the parties and providing them proper opportunity to produce further evidence, if so desired. Trial Court is directed to decide the case within one year after receipt of this order. No order as to costs.