' ZIA-UR-RAHMAN KHAN, J.---The instant revision is directed against the judgment and decree dated 11-7-2009 recorded by the learned District Judge/Zilla Qazi, Chitral whereby while dismissing the appeal of the petitioner the judgment and decree dated 23-8-2007 rendered by the learned Civil Judge/Illaqa Qazi, Booni decreeing the suit of the respondent in respect of the disputed property against the petitioner, has been upheld. The relevant facts in short compass are that the respondent in the capacity of plaintiff filed a suit for declaration and injunction against the petitioner to the effect that they are lawful owners in possession of the disputed property and the present petitioner being an outsider has got no concern with the said property duly described in the plaint and if there is some sale deed in his favour, the same is ineffective upon their rights.
2. The suit was contested by the petitioner through his written statement wherein apart from legal objections, he also raised the plea that the suit property was owned by one Zar Nabi who vide sale deed dated 26-12-1979 alienated the same in his favour. The respondents as plaintiffs examined four other witnesses apart from their own statement in respect of their respective allegations whereas the petitioner examined seven other witnesses including himself and the marginal witnesses of the deed. Previously, the matter was decided but remanded and finally the learned Civil Judge passed a decree in favour of the respondents which was concurred by the learned appellate court through the impugned judgment. Thus the present revision petition.
3. Learned counsel for the petitioner mainly contended that the suit property is in fact the purchased property of the petitioner by way of sale from one Zar Nabi and since then has .Remained in his possession and the respondents' claim towards it is baseless and unfounded and the trial Court has wrongly granted a decree in their favour. He also contended that the local commissioner appointed by the learned trial Court simply for the ascertainment of the correct description of the suit property has overstepped his authority by cross examining the witnesses on the spot and giving his own opinion about the title of the suit property. He contended that the most important issue involved in this suit is that of limitation about which there is a proper plea in the written statement but the learned trial Court failed to frame this important issue and give a clear judgment thereon and likewise the learned appellate Court has also not recorded any finding in this respect, nonetheless in the memorandum of appeal, apart from other grounds, this ground has been specifically agitated. In this way, according to him, not only the cause of the petitioner has got damaged but in addition to that the judgment of the learned appellate Court is also not in accordance with the provisions of Order XLI Rule 31, C.P.C. Whereunder the said court was bound to state points and give reasons thereon while making decision.
4. On the contrary, the learned counsel appearing for the respondents while supporting the impugned judgments vehemently contended that substantial justice has been done between the parties and the grounds agitated by the learned counsel for the petitioner are of trivial importance and are liable to be discarded.
5. I have heard the leaned counsel for the parties at sufficient length and also perused the record with their valuable assistance.
6. The record reveals that the respondents are laying claim of ownership towards the disputed property being ancestral owners and on the other hand about the petitioner they say that he is an outsider but has settled in their village. Be that as it may, whether the petitioner is an outsider and has not purchased the disputed property from one Zar Nabi and in fact he has purchased some other property which is lying adjacent to the suit property is a question which both the parties through their evidence have sought to resolve. But the main question crops up for determination is that when the petitioner in his written statement raised the plea of limitation as a legal objection, why did not the trial Court frame a proper issue by putting the parties at guard as to what type of case they were supposed to meet. This was the first illegality committed by the trial Court because under the law it was the sole responsibility of it to have framed proper issue arising out of the pleadings of the parties. As there was no proper issue with regard to limitation, thus neither any evidence was produced nor this fact was properly appreciated as to whether the suit of the respondents was within the prescribed period of limitation or not.
7. Likewise, it is manifest from the memorandum of appeal that apart from raising many objections including the non-framing of issue about the limitation, the learned appellate Court has failed to meet all these questions as the first court of facts in accordance with the provisions of Order XLI, Rule 31, C.P.C. In the memorandum of appeal, the admissibility of the report of commission was also challenged but the judgment of the appellate Court comprises of few lines and it appears that the learned appellate Court has not properly adverted to dilate upon all the disputed questions. This is the most weightfull contention contended by the learned counsel which in no way can be avoided.
But unfortunately, in this case the leaned appellate court has tried to decide the appeal of the petitioner in a very slipshod manner without accepting its responsibility of dealing with each and every ground having been agitated in the memorandum of appeal. The apex Courts from time to time have passed many judgments urging the appellate Courts to meet all the grounds agitated in the memorandum of appeal, may be they are legal or factual so that the cases are not frequently remanded to them. In the instant case, if on one side, both the courts below have failed to frame the most relevant issue of limitation, on the other hand, the learned appellate Court has avoided to perform its duty and function as an appellate Court. In view of the attending circumstances of the case, it was incumbent upon the learned appellate Court to have seen all the disputes in their true perspective, the non-attendance whereof has caused prejudice to the case of the petitioner. In a case reported as Muhammad Shafi v. Abdul Ghani through Legal Heirs and others (2000 SCM R 1124), the august Supreme Court observed as under:- "---0 .XLI, R.23---Constitution of Pakistan (1973), Art.185 (3)--Remanding of case to Trial Court--- Factual controversy between the parties---High Court has rightly remanded the case to the Trial Court to proceed to frame and decide the issues as indicated by the High Court in its order-- Petitioners failed to point out any error committed by High Court in remanding the case---Leave to appeal was refused."
8. Likewise in another judgment reported as Mst.. Sughra Bibi and others v. Mst. Jameela Begum and others (2001 SCM R 772) the august Supreme. Court has observed as under:- "---0.XVI, R.1---Issues, framing of ---Failure to frame correct issues---Duty of the Court---Scope-- Parties in suit were entitled to make application for the amendment of issues but primarily it was the duty of the Court to frame the issues correctly--- Issues framed by the Court should correctly reflect the controversies arising from the pleadings of the parties so that effective judgment could.Be rendered on the disputed facts and the parties should know as to on what facts the evidence was to be led."
9. What can be possibly gathered from the observations of the august Supreme Court, this court is left with no alternative but to remand the case to the appellate Court with the direction to first frame an issue with regard to limitation and if in its opinion, there is no sufficient evidence produced by the parties due to non-framing of issue by the trial Court, further evidence be recorded and thereafter a proper decision be given in accordance with the requirements of Order XLI, Rule 31, C.P.C. By meeting all the grounds including that of commission report etc. One by one so that the provisions of the procedural law are duly fulfilled.
10. Resultantly, the instant revision petition is accepted, the impugned judgment and decree of the appellate Court is set aside and the matter is remanded to the appellate Court for doing the needful in view of the observations made herein above, within a period of two months. IC The parties are left to bear their own costs.