SHER MUHAMMAD KHAN, J. Impugned here are the judgments/decrees of learned Civil Judge-IV, D.I.Khan in Civil Suit No,91/1 of 1996 passed on 19-5-2009 and Additional District Judge, D.I.Khan in R.C.A. No,33/13 of 2009 passed on 26-6-2010 respectively, vide which suit filed by actual respondents Nos.1 to 4 (hereinafter called the plaintiffs), against petitioners was decreed as per prayer in the plaint and appeal filed by petitioners was dismissed by the appellate Court.
2. The precise facts, relevant and necessary for the decision of the instant revision petition are that plaintiffs filed suit in the trial Court on 26-2-1996 against petitioners, for declaration, permanent injunction and in alternative for possession of the disputed property, fully described in the heading of the plaint.
3. According to averment of the plaint, as drafted, the claim of plaintiffs was that they are owners in possession in khata No, 355 to the extent of 481 kanals 5 marlas, on the basis of Mutations Nos.4052, 4056 attested on 27-3-1963, Mutations Nos.4053, 4055 attested on 31-1-1963, Mutation No,4076 attested on 27-6-1963 and Mutation No, 4115 attested on 22-1-1964, which were duly entered in the revenue record pertaining to record of rights for the years 1958-59 to 1962-63 but during preparation of the next periodical record, on the basis of partition Mutation No,1125, khata No,355 was divided into four new khatas Nos.372, 382, 283 and 384 due to which the lands of plaintiffs were reduced to 254 kanals 8 marlas and 226 kanals 17 marlas was left from the entry in their names. According to new arrangements the newly created khatas Nos.372, 382, 383 were of ownership and khata No,384 was separately prepared of "Dakhelkari" hereditary occupancy. They prayed that the partition Mutation No,1125 vide which their shares were reduced, is liable to be cancelled and declared ineffective upon their rights and petitioners should be held liable to make good the deficiency occurred in their shares.
4. The learned trial Court summoned the petitioners, who filed their written statement and denied the claim of the plaintiffs.
5. The divergent pleadings of the parties were reduced into the following issues:--
(1) Whether the plaintiff has got a cause of action and locus standi?
(2) Whether the partition made in the Jamabandi for The year 1967-68 incorrect and partition Mutation No,1125 is liable to be cancelled?
(3) Whether the suit is within time?
(4) Whether the plaintiff has waived his right whatever?
(5) Whether the suit of the plaintiff is maintainable?
(6) Whether the plaintiff is estopped to sue by his own conduct?
(7) Whether this Court has got jurisdiction for the purpose of court-fee?
(8) Whether the plaintiff is entitled to the decree as prayed for?
(9) Relief.
6. On 7-3-2007 the plaintiffs submitted an application for withdrawal of the suit with permission to institute fresh suit, because they felt there were some formal defects, which could become fatal for dismissal of their suit. Petitioners contested the above mentioned application but the learned trial Court vide order dated 11-12-2007, converted the application of plaintiffs for withdrawal of the suit into application for amendment of the plaint, allowed the same on payment of cost of Rs,300 and the plaintiffs were directed to file amended plaint.
7. Amended plaint was filed on 23-4-2008 wherein plaintiffs claimed 98 kanals 6 marlas deficiency in their shares instead of 226 kanals 17 marlas as per their claim in original plaint.
8. Petitioners again filed written statement and almost raised the same legal and factual objections but this time the learned trial Court, framed the following fresh issues:--
(1) Whether the plaintiff has got cause of action?
(2) Whether in the different jamabandies share of plaintiffs have been reduced, if so to what extent?
(3) Whether this Court has got jurisdiction to entertain the present suit'?
(4) Whether Mutations Nos.4052, 4053, 4055, 4056, 4076, 4115 have been effected in between the parties and land has been transferred to plaintiffs in consequence of those mutations, similarly how much land was transferred through these mutations?
(5) Whether plaintiffs are entitled to the decree as prayed for?
(6) Relief.
9. Plaintiffs in support of their claim produced Aziz Khan ADK-I as P.W.1, Muhammad Ibrahim Khan Patwari Halqa Mauza Ramak as APW-1, Shamsuddin ADK as APW-2, who produced the relevant revenue record and exhibited its copies on the file. Mazhar Mumtaz Ahmad attorney of the plaintiffs appeared as APW-3 and then closed their evidence.
10. Petitioner No, 1, who was also attorney of the rest of the petitioners appeared as DW-1 and also examined Amanullah son of Qadir Bakhsh as DW-2, in their support.
11. It seems that the evidence produced by the parties was not helpful to arrive at correct decision, therefore, Muhammad Riaz ADK was examined as CW-1, who furnished his answers, to the queries formulated by the Court. Vide his report exhibit Exh.CW1/l to Exh.CW 1/4, he calculated the area less measured in the name of all co-Sharers and also pin pointed deficiency can be covered. the persons. from whose shares the
12. It is pertinent to mention here that petitioners in their written statement denied the claith of the plaintiffs but during evidence admitted their ownership and possession over 481 kanals 5 marlas since the date of purchase.
13. The learned trial Court decided the suit vide, judgment/decree dated 19-5-2009 and gave findings on subsequently framed issues after amendment of the plaint. Giving findings on Issues Nos.1 and 2 the learned trial Court placed reliance on the B statement and documents exhibited by CW-1 and hold that the plaintiffs have got cause of action against the defendants for bringing the suit and also that their shares has been reduced in subsequent jamabandi to the extent of 83 kanals and 9 marlas.
14. The trial Court had formulated.the following three questions to CW-1 for his, answers in the light of revenue record:--
(1) How many land, out of 4801 anals, sold to plaintiffs, is "malekana" (ownership) and how many "Dakhelkari" (hereditary occupancy)?
(2) Whether the entire "Dakhelkari" (hereditary occupancy) land has been deducted or not?
(3) Whether the deficiency of 98 kanals 5 marlas land has been entered in the name of petitioners (defendants) or not?
15. The answers to the above mentioned questions were answered in the following order:--
(1) Out of 480 kanals 15 marlas land, purchased by plaintiffs, 97 kanals 5 marlas lands has been deducted As "Dakhelkari" (hereditary occupancy) from the plaintiffs' shares.
(2) The ''Dakhelkari" (hereditary occupancy) shares have been deducted from all the owners of the khata, proportionately according to their shares, including the plaintiffs.
(3) The shares, of the plaintiffs were not added to the shares of petitioners. It has been entered in the name of "Dakhelkaran" (tenants at will) of the same khata.
16. According to Exh. CW1/4, out of 84 kanals 6 marlas land deducted from the plaintiffs, 21 kanals 14 marlas was entered to legal heirs of Mst. Waziran, 23 kanals 16 marlas to Ahmad son of Mosa legal heirs of Ghulam Shabir etc., 8, kanals 18 marlas to Qadir son of Hussain legal heirs of Attaullah, Amanullah etc., 8 kanals 18 marlas to Ramzu son of Hussain legal heirs of Sabu widow, Nazu, Attaullah sons of Ramzan and 21 kanals in the name of Allah Bakhsh son of Gama all owners in khata Nos.1125, 1140 according to periodical record of the years 2002-2003.
17.It is not clear that whether the parties to the suit had willingly surrendered their right of cross examination on CW-1 or the learned trial Court failed to provide C opportunity to them but prima facie the statement of CW-1 is unchallenged, as not cross examined by either side, therefore, admitted by both the parties.
18. The learned trial Court in the judgment/decree did not appreciate the entire statement of CW-1, but based its judgment on selected portion from it: the deficiency in the shares of the plaintiffs was calculated and made it base for the decree, ignoring the other facts mentioned in the documents Exh.CW1/1 to Exh.CW1/4, particularly the answer to query No,3, wherein it was submitted that the shares of the plaintiffs have not been entered in the name of petitioners rather it was entered in the name of "Dakbelkaran" (tenants at will).
19. Petitioners challenged the above mentioned judgment/decree by way of appeal. An application before the appellate Court for framing the following additional issues was also filed, which according to them were vital for just decision of the case but not framed by the trial Court:--
(1) Whether the necessary persons have been made parties to the suit and suit of plaintiffs is bad for misjoinder and non-joinder of necessary parties?
(2) Whether the reduced shares of the plaintiffs have gone back to the defendants or not?
'20. Another application in the appellate Court was filed by Allah Bakhsh, etc., for impleading them as defendants in the case because on the strength of the impugned judgment/decree passed by the trial Court, Mutation No,9229 has been attested on 6-6-2009, vide which certain shares of the lands owned by them, were deducted and entered in the name of the plaintiffs. Their plea was that they have been condemned unheard and without giving opportunity of hearing, their property has been decreed to the plaintiffs. They were necessary party, therefore, they should be provided opportunity for defending their rights.
21. The learned appellate Court vide impugned judgment delivered on 26-6-2010, not only dismissed appeal of the petitioners but also applications filed by petitioners and Allah Bakhsh, etc., hence the instant revision petition.
22. Learned counsel for the petitioner argued that plaintiffs were not clear in their mind at the time of institution of the suit about their actual shares in the subject matter therefore, in the original plaint, filed on 26-2-1996 they claimed 226 kanals 17 marlas land from petitioners and then amended their suit after about 11 years and reduced their claim to 98 kanals 6 marlas. The trial Court passed decree in their favour to- the extent of 83 kanals 9 marlas, which is ample proof of the vagueness regarding claim of the plaintiffs and their entitlement. It was next 'argued that the learned trial Court did not frame issues according to divergent stands taken by the parties in their pleadings and failed to exercise jurisdiction vested in it. He next argued that the learned trial Court has relied upon the evidence of CW1 but while passing judgment, did not examine the documents prepared by CW-1 in its totality, resulted in factual and legal flaws apparent on face in the impugned judgment/decree, which is altogether in derogation of the statement of CW-1. He lastly argued that the judgment/decree of the trial Court is not sustainable in the eyes of law because so many persons have been condemned 'unheard and the appellate Court also failed to exercise jurisdiction vested in it and caused serious injustice to petitioners and others who were not party to the proceedings.
23. On the other hand, learned counsel appearing on behalf of respondents/ plaintiffs argued that petitioners are estopped by their conduct because they denied sanctioning of mutations in favour of plaintiffs, in their written statements but admitted the same in their statements recorded during evidence in the trial Court. He next argued that purchase of 481 kanals 5 marlas is admitted petitioners then the job of the trial Court was only to identify the persons in whose names the said deducted lands were entered in the revenue record. It is also argued that the learned trial Court, as well as the appellate Court, after lengthy trial, has thoroughly probed into the matter and arrived at accurate conclusion,after affording full opportunities to the contesting parties and there is no' justification to interfere ,in concurrent findings of the two Courts below, in exercise of revisional jurisdiction.
24. From hearing the arguments of both the sides and going through the documents available on record I am of the opinion that the learned trial Court has not framed the issues in accordance with divergent pleadings of the parties. The original plaint was, filed on 26-2-1996 and written statement by petitioners was filed on 30-10-1996, which culminated into nine issues, framed by the trial Court on 2-1-1997. After amendment of the plaint, the petitioners through amended written statement took almost the same defence pleas but for unknown reason the learned trial Court failed to frame the issues according to the pleadings of the parties.
25. After conclusion of the evidence of both the sides, the learned trial Court felt it necessary to examine CW-1 for arriving at just decision of the case therefore, formulated three questions to him which were answered in the light of revenue record and it came to the knowledge of the Court through statement of CW-1 that the lands deducted from the shares of the plaintiffs through partition Mutation No,1125 are not entered in the name of petitioners, but in the name of "Dakhelkaran" (tenants at will). Comparative table Exh.CW1/1 has been prepared by CW-1, wherein detail of the persons in whose names 84 kanals 6 marlas "land was entered. Allah Bakhsh etc., are included in that list NA. they were not party to the suit and the decree passed by the trial Court in their absence had clearly deprived them of their vested rights.
26. It also came into limelight through evidence of CW-1 that original khata No,355 was consisting of 65 khasra numbers, total measuring 7661 kanals 16 marlas. Out of which plaintiffs have purchased 480 kanals 15 marlas through Mutations Nos.4052, 4053, 4055, 4056, 4076 and 4115 from petitioners. In the periodical record prepared in 1967-68, 97 kanals 5 marlas "Dakhelkari" (hereditary occupancy) land has been deducted from the plaintiffs. The plaintiffs have abandoned their claim to that extent. Similar kind of land was deducted from all the owners in the above mentioned khatas and entered in newly created khata No,384, of "Dakhelkari" (hereditary occupancy). It was incumbent upon the trial Court to implead all the owners of original khata No,355 in the suit and to obtain the relevant record of all the owners pertaining to the periodical record of 1967-68, prepared on the basis of partition Mutation No,1125.
27. The learned trial Court should have framed vital issues from the pleadings of the parties at the time when it were filed in 'the Court. After recording evidence of the parties when new facts were brought on the record, it was duty of the Court to direct the parties to amend their pleadings for impleading the necessary parties in the suit and then to provide opportunity of hearing to the newly added defendants. New issues must have been framed after receiving written statements from the newly added defendants, to do complete and substantial justice to all the parties concerned.
28. Law favours adjudication of all the disputed facts on merits after granting opportunity to the parties to prove the same so that the rights of the parties 'might be determined finally. In the case of Muhammad Yousaf v. Haji Murad Muhammad PLD 2003 Supreme Court 184 the Apex Court set aside the judgments/ decrees passed by trial Court and appellate Court, maintained in revision by the High Court in revisional jurisdiction, on the grounds that the trial Court did not peruse the pleadings of the parties with diligent application of mind and proper issues clinching the controversy were not framed. It was also observed that where an issue, though in terms covering the main question and the cause, could not sufficiently direct the attention of the parties to the main question of the fact, necessary to be decided, the parties might have been prevented from adducing evidence, or fresh issue might be directed to try the principal question of fact. Duty of raising issues under C.P.C. rested on the Court and it would be unsafe to presume from the failure of the Court to 'raise the necessary issues and intention of the defendant to admit the fact, which the plaintiff was bound to prove.
29. In the case of Mst. Rasheeda Bibi and others v. Mukhtar Ahmad 2008 SCM R 1384, the Apex Court in a situation where a particular issue was not pressed by a party affected, was declared no ground for condoning failure to frame necessary issues under the mandate of Order XIV Rule I, C.P.C., which binds the Court to frame issues in the light of the controversies raised in the pleadings, after examination of the parties, if necessary.
30. In the instant case the entire Khata No,355 has been divided into four new khatas. As is evident from the record the entire khata was owned by numerous other persons besides parties to the present suit and all of them might have been benefited or injuriously affected with partition Mutation No,1125, for the reason by creating newly khata No,384 with regard to "Dakhelkari"
(hereditary occupancy). The case of Allah Bakhsh etc, applicants before the appellate Court is glaring example of the above mentioned proposition, who were not party before the Court but have been deprived of their property through impugned judgments/decrees.
31. In the case of Messer Mona Lisa Fruit Juice Industry Limited v. Govt. of Sindh 1988 MLD 9, the honourable Karachi High Court ruled that where suit was likely to be decreed and by such decree any party was going to be adversely affected then such party was necessary party and it was essential that it should be present before the Court so as to avoid multiplicity of proceedings and shorten litigation. It was further held that if such applicants were not impleaded as defendants they were likely to file separate suits to protect their rights which would amount to promoting litigation and could result in conflicting judgments.
32. The order of the learned appellate Court regarding dismissal of the application of Allah Bakhsh etc., is typical example of the above mentioned proposition, the appellate Court has advised Allah Bakhsh etc to file application under section 12(2). C.P.C. for their redressal. It was stated at the bar by learned counsel of the petitioners that the said Allah Bakhsh etc., who have been arrayed as pro forma respondents Nos.4 to 6, in the instant revision petition have filed application under section 12(2), C.P.C., which is pending adjudication before the lower Court.
33. In the light of above stated facts I have no hesitation in setting aside the impugned judgments/decrees passed by the lower Courts and to remand the case back to the trial Court with the directions to implead all the necessary parties, who have been benefited or injuriously affected from partition Mutation No,1125. After impleading the newly added defendants and obtaining their written statements fresh issues may be framed in accordance with pleadings of the parties, particularly with regard to the reduced shares of the plaintiffs and its beneficiaries.
34. Resultantly, the instant revision petition is accepted and the case is remanded back to the trial Court for de novo trial in the light of above observations. Parties are directed to appear before the trial Court on 15-12-2010. Parties are left to bear their own cost.