ORDER UMAR ATA BANDIAL, J.---This revision petition is filed against the judgment of the learned ADJ dated 11-9-2009, affirming the judgment of the learned civil court dated 28-2-2007 whereby the respondents suit for possession of land claimed to be owned by them after demolishing construction was decreed to the extent of 7 kanals, 12 marlas bearing Khasra No.150 according to the Jamabandi for the year 1997-1998 of Mouza Tohar, Tehsil and District Gujranwala. The claim of title by respondents in their suit can be traced to Exh.D1 being a mutation of Exchange No.1275 dated 13-12-1997 between Mst. Umatul Islam the recorded owner of suit-land and the plaintiffs/ respondents. This mutation is not disclosed by the respondents in their suit for which reliance is placed on Exh.P1 being an extract of the jamabandi of the estate for the year 1997-1998. Both the learned courts below have decreed the suit on the ground that the respondents/plaintiffs according to the Revenue Records have duly recorded title to the land in question. The impugned judgments have treated the defendants plea in the written statements to Be one of adverse possession; as evident in the discussion by the trial Court at Issue No.3 and by learned appellate court in Paragraph No.9 of their respectiv judgments.
2. The learned counsel for the petitioners has contended that the plea of the defendants/petitioners is one of "owners in possession" by dedication of the land to the petitioners on the pretext that "22/23 kanal lands was left for the residence of the Nau Muslims". This plea is taken in preliminary objection No.6 of the written statement. Based on the said plea, Paragraph No.6 on merits of the written statement alleges possession as owner since partition.
3. Learned counsel for the petitioners has contended that issues as framed in the suit do not reflect the plea taken by defendants/petitioners. Therefore, the elements of gift or charity that the petitioners claim in their pleadings could not be properly brought out in evidence. He relies on Mst.
Rasheeda Bibi and others v. Mukhtar Ahmad and others (2008 SCMR 1384) paras 15 and 17 to contend that if issues are not properly framed to reflect the controversy between the parties then the result is a mistrial. He seeks a direction that matter be remanded for recording of evidence 'on a newy-framed issue namely whether there is a lawful gift of the land in favour of the defendants/petitioners or their predecessors. He further alleges that both the judgments are hasty and superficial in content. In this regard he points to the fact that the dispute on valuation and, non-fixation of court-fee is also/not noticed in the issues framed on the controversy. He re- enforces this plea by stating that on the question of ownership of land, the learned courts below have not at all discussed oral evidence on record by DW-1 to DW-4, who have claimed that the land in question was dedicated by way of gift in the name of Almighty to the new adherents of the faith.
4. Learned counsel for plaintiffs/. Respondents submits that both judgments given below have relied on extracts from the Revenue Record namely Exh.P1 and Exh.D1 to sustain the plea of ownership of the disputed land by the respondents. Admittedly, the petitioners are in possession of the land but hold no title thereto and therefore cannot, without proof of an interest, retain possession of the said land against the claim by the recorded ownership by the respondents. For the defendants/petitioners to succeed on merits, he contends. That it was incumbent to prove the gift claimed by them, which has not been done. Relies on Ch. Muhammad Boota v. Mst: Bano Begun, (2003 CL 485). In the absence of a written document of gift, the unsubstantiated -plea of the defendants/ petitioners has no force; in this regard lie refers to Muhammad Samar and 3 others v. Jahangir Ahmad and 3 others (2002 CLC 1865). Finally he adds that on a concurrent finding of fact given by the learned lowr courts, this Court may in exercise of its revisional jurisdiction interfere with the impugned judgments on grounds of non-reading or misreading of record or the commission of illegality by the learned lower courts but cannot interfere with a finding of fact on the ground of insufficiency or different appreciation of evidence. He relies on Naja and 2 others v. Shamand and 4 others (PLD 1985 Lahore 607), Fateh Muhammad and 3 others v.
Abdul Majeed and another (PLD 1985 Lahore 650), Abdul Rehman's Wahla v. Dr. Sher Din Batra (PLD 1986 SC 234) and Shah Gul and others v. Mst. Shaman Akhtar and others (1990 SCMR 110).
Accordingly, learned counsel has prayed for the dismissal of this revision petition.
5. There are a number of points which are self-evident on the record. Firstly, the learned trial Court did not frame an issue on the objection regarding non-affixation of court-fee according to the relief claimed in the suit and for purposes of jurisdiction. A matter involving public revenue ought to have been reflected upon before launching into adjudication of the main controversy. Secondly, on the point of ownership of the suit-land it is clear that the defendants/ petitioners brought oral evidence in support of their plea in the written statement making a counter claim to ownership of the land. Whether such evidence was sufficient to displace the claim by the plaintiffs/respondents need not presently be opined. However, such evidence on the question of ownership of the suit- land ought to have been discussed by the learned lower courts which has not been done. Thirdly, in oral evidence it is claimed that the petitioners/defendants were in possession of the suit-land since the time of partition of the suit-land. Fourthly, the mutation of exchange Exh.D1 by the admitted owner of the disputed land was recorded one and half months before her death in very advanced years of age. During her life she never challenged the defendants/petitioners possession of the suit-land. The effect of these facts on the question of mala fide and fraud which forms part of the Issue No.5, regarding the integrity of the plaintiffs/ respondents transaction has not been considered by the learned lower courts. Accordingly, applying principles reiterated in the precedents Relied by the learned counsel for the respondents namely Naja v. Shalunand (ibid)
Fateh Muhammad v. Abdul Majeed (ibid) and Abdul Rehman's v. Dr. Sherdin (ibid), the learned lower courts have omitted to consider and analyze evidence' on record for giving its findings. The foregoing is a consequence of a more significant failure by the learned trial Court. This is the omission to frame an issue on the plea of a charitable gift raised in the written statement. It is the duty of the learned, trial Court to frame issues on the questions of fact and law requiring determination for adjudication of the controversy between parties to the suit. Reliance is placed on Roazi Khan and others v. Nasir and others (1997 SCMR 1849) and Mst. Sughran Bibi and others v.
Mst. Jameela. Begun and others (2001 SCMR 772). The said omission has led to the non- determination of a material plea and therefore failure to decide the real controversy resulting in serious irregularity inviting interference..
6. The Court accordingly, draws the conclusion that the judgments given by the learned courts below are cursory. The facts of the case deserve closer scrutiny through a proper delineation of the issues and opportunity of recording of evidence thereon followed by its assessment in accordance with law. Although not expressed clearly the plea at ownership in possession by the defendants/petitioners needs to be evaluated, for which issue ought to be framed and evidence be allowed to be led by the parties before fresh findings are given in the suit. Accordingly, the Case is remanded to the learned trial Court and revision is disposed of.