1. ' MRS. SYEDA TAHIRA SAFDAR, J.---Above titled both the petitioners are filed by the petitioneis named above being aggrieved of same orders of Qazi Pasni dated 6-10-2004 and order of Majlis- eShoora Mekran at Turbat dated 23-5-2005. As both the petitions are filed while challenging the validity of order of Appellate Court with same prayer, therefore, it would be just and proper to decide both the petitions with this common order to avoid any sort of contradiction.
2. ' The brief facts of the case are that the respondents/plaintiffs filed a suit seeking declaration of their title in respect of property situated in area of defendants Nos.1 to 25's ancestral property jointly owned by them, which is till present unpartitioned, injunction and effecting of partition of property between them is prayed.
3. ' The defendants including the present petitioners filed their separate replies thereby strongly contested the claim of the plaintiffs/respondents in respect of property in question also denied their right and title in the same. They further raised several legal objections, due to which the suit is not maintainable. According to them the suit is bad for unspecific description of property in question, non-joinder of necessary parties, filed beyond period of limitation, share claimed is unspecific, nonexistence of cause of action and plaint is vague. The suit was pending for regular hearing when an application was also file under provisions of Order VII, rule 11 C.P.C. For dismissal of suit being no maintainable by the petitioners/defendants The trial Court after hearing the parties decided this application through order dated 6-10-2004, whereby the trial Court comes to the conclusion that the suit is no maintainable on grounds mentioned thereii thus dismissed. Being aggrieved of the same the respondents/plaintiffs filed appea before Majlis-e-Shoora, who after hearin; the parties accepted the appeal, set aside order of trial Court and remanded the case for further adjudication on merits. Feeling aggrieved of the order of the petitioner preferred instant petitions praying for setting aside of orders of Appellate Court.
4. ' In instant petitions it is contention of the petitioners that remand of case could only be made in terms of Order XLI, rule 23, C.P.C. And not otherwise, the order was lawfully made by the trial Court, while order of Appellate Court is on no grounds, in case order of remand is to be made it may be only in respect of application moved under Order VII, rule 11, C.P.C.
5. ' The counsel for the parties are heard and record is perused. It is apparent from record that the suit was in its initial stage when the trial Court while accepting the application under Order VII, rule 11, C.P.C. Dismissed the suit being not maintainable, till then issues were not framed. The learned trial Court while considering the application for rejection of plaint gives findings on legal objections raised by the defendants in their written statement. The Appellate Court while deciding the appeal reversed the order on grounds that the trial Court neither framed any issues nor called for evidence, rather arrived to the findings neither based on record nor on law. The Appellate Court though not discussed each and every B objection, but arrives to correct decision that the trial Court has made an error while dismissing the suit being not maintainable in such a way.
6. ' As per findings of learned Qazi the suit is not maintainable as there is clear contradiction in contents of plaint and prayer made therein. The suit of plaintiffs is to the extent of declaration of his title while in prayer clause correction of entries are prayed. The perusal of plaint reveals that the respondents / plaintiffs claimed their right in respect of property in question being share-holders in the same, while prayed for effecting of partition between them and defendants Nos.1 to 25 as per their shares, whereafter, direction be issued to Revenue Authorities for entering the names of deserving persons in record by correcting the entries. There seems to be no contradiction in memo of plaint and prayer as alleged, in case there is so the trial Court is empowered to grant relief to such extent C which is nearest possible in the circumstances, to redress the grievance of the parties. The findings in respect of non-describing of specific share of the respondents/plaintiffs, is also not correct as suit for partition and possession of share thereof are governed by section 54, C.P.C. And Order XX, rule 18, C.P.C., which describes the instances about separation of shares of the parties which is to be carried out by the Collector in respect of property assessed to payment of revenue to the Government or in other cases after passing of preliminary decree the inquiry be made and further required directions be made for partition and separation. The trial Court has failed to observe the relevant provision of law. As far as not describing the proper and specific boundaries of property in question are concerned in case the plaint is vague to this extent steps can be taken for bringing on record the details of property in dispute. Though as per Rule 3 of Order VII, C.P.C. The plaint must contained the description of property to specify the same, but in case of failure from side of plaintiffs the Court can call better particulars of the property in order to specify the property which is matter in dispute. No suit must fail on ground of lack of proper description of property in dispute. The trial Court has D failed to exercise the power vested in it. The suit is also asserted to be bad for non-joinder and misjoinder of parties. The findings of trial Court are also not in accordance with relevant provisions. Rules 9 and 10 of Order I, C.P.C. Deals with misjoinder and non-joinder of parties. The Court is very much empowered to add or delete the parties as provided therein. Further, as per Rule 9 no suit shall be defeated by reason of misjoinder or non-joinder of parties. The findings of trial Court to this extent is also erroneous. The trial Court also comes to the conclusion on relying some documents that suit is filed beyond period of limitation. This cannot proceed. As the issue of limitation is mix question of fact and law, in case reliance has been made on some document, until and unless said document is brought on record no reliance can be placed on the same, nor findings can be given on its basis. The learned trial Court further made an error on this point too.
7. While deciding a suit the material consideration is to give decision on merits, E rather deciding it on mere technicalities. The trial Court was bound to frame issues on merits as well as on legal objections also, whereafter decide the same keeping in view the relevant provisions of law. But in present case learned Qazi simply decided the objections on application made by the petitioners/defendants that too without making basis of his findings on relevant provisions of law.
8. Further, some of the objections are factual as well as legal, for deciding the same evidence is required to be called which is to be considered. But the trial Court while gave findings without the same only on presumptions, which is not proper. Even objection to the extent of misjoinder and non-joinder of parties can easily be meet by adding or deleting the parties. The better particulars can also be called from the party concerned to remove the ambiguity. The trial Court has failed to exercise the powers vested in it and comes to the conclusion which is not inconformity with relevant provisions of law. The learned Appellate Court while assessing the situation comes to the right conclusion by setting aside of order of trial Court and order for remand of the cases for adjudication on its own merits. There is no illegality or irregularity pointed out, which makes the order contrary to law. The petitioners have failed to make out any case in their favour. The impugned order dated 23-5-2005 of Majlis-e-Shoora Mekran at Turbat is hereby upheld. In addition the trial Court is directed to frame issues on all legal and factual grounds, thereby after recording of evidence from both the sides decide the suit in accordance with law. The instant revision petitions bearing Nos.182 of 2005 and 172 of 2005 are dismissed being without merits.
9. No orders as to costs.