' CH. SHAHID SAEED, Through the instant R.S.A. Appellant has challenged the impugned judgment and decree dated 20-12-2000 passed by learned Additional District Judge, Lahore by way of which he dismissed the appeal filed by the appellant and up held the decision made by the learned trial Court by way of which suit filed by the respondents Nos.1 to 3 was. Decreed.
2. Brief facts of the case are that respondent. No,1 filed a suit for declaration against the appellant/defendant with the prayer that a decree declaring the general power of attorney dated 16-12-1979 registered on 19-12-1979 with the Sub-Registrar, Lahore Cantt. And the sale-deed dated 3-1-1980 conveying suit-land to defendant No,1 as illegal, inoperative and void documents conveying no title to defendant No,1 and also declaration to the effect that plaintiff No,1 has become lawful joint owner in possession of suit-land with defendant No,1 to the extent of 12 kanals, 7 marlas by virtue of sale-deeds registered on 2-10-1985 be passed. It was further prayed that decree for permanent injunction be also passed restraining defendant No,1 from making any advances, encroachments, town planning and alienating or encumbering suit-land in any manner whatsoever.
3. On 13-9-1986, conceding written statement purportedly on behalf of defendants Nos.3 and 4 was filed through counsel. Appellant/defendant appeared before learned trial Court and contested the suit by tooth and nail while submitting his written statement. Out of the divergent pleadings of the parties, learned trial Court framed necessary issues including relief. Both the parties got recorded their oral as well as documentary evidence. Learned trial Court ultimately after hearing both the sides at length decreed the suit vide judgment and decree dated 8-11-1989. Appellant preferred an appeal which was accepted and the case was remanded to the learned trial Court with a direction to decide the same afresh in accordance with law. That after the remand of the case, on 6-4-1993, an application under Order VI Rule 17 was filed by, the appellant, the same was rejected by the trial Court merely on the ground that the court could not go beyond the order of the appellate Court.
That learned trial Court vide judgment and decree dated 25-6-1995 again decreed the suit.
Against the said judgment appeal was filed which was dismissed by the learned Additional District Judge Lahore vide judgment and decree dated 20-12-2000. Feeling aggrieved by both the judgments of the courts below appellant has, filed the instant R.S.A.
4. Learned counsel for the appellant contends that the impugned judgments and decrees are against law and facts and also based upon misreading and non-reading of evidence; That the snit, filed by the respondents was hopelessly barred by time because the period of limitation in the suit filed by the respondents was three years and the courts below were bound to dismiss the suit instituted much after the period of limitation prescribed in the relevant Articles (91 and 92) of the.
Limitation Act. Further argued that according to the plaintiff's own claim Mst. Khurshid Bibi mother of defendants Nos.3 and 4 had been appointed guardian of their person and property and as such no sale of any properly owned by them could have been effected without permission of the court until the minors had attained the age of twenty-one years; that proper issues were not framed by the learned trial Court; further maintained that application under Order VI, Rule 17, C.P.C. Filed by the appellant for amendment in the written has wrongly been dismissed by the trial Court; that respondents have not proved the factum of the case that the defendants Nos.3 and 4 were minors at the time when the property was transferred in favour of the appellant; that the appellant has taken sgecific preliminary objection 'in his written statement that the suit is collusive and malicious sale-deeds executed by. Muhammad inayat one of the minor had no legal effect upon his ownership, but no issue was framed in this regard; that the order sheet of the trial Court reflects that Rana Muhammad Arif Advocate has represented the case from both sides i,e, plaintiff and defendants Nos.3 and 4, hence, it can safely be concluded that the plaintiff filed the suit with the collusion of defendants Nos.3 and 4 which was not maintainable in its present form.
5. On the other hand, learned counsel for the respondents states that there are concurrent findings of both the courts below against appellant; that defendants No,3 and 4 were minors, when the appellant purchased the property in dispute; further argued that claim of the respondents in the suit has not been properly rebutted by the appellant; lastly learned counsel for the respondents has supported the impugned judgments and decrees passed by the courts below.
6. Arguments heard. Record perused.
7. Undeniably, evidence produced by the' appellant before the learned trial Court has not been properly appreciated by both the courts below. Some material issues were also not framed by the trial Court. Appellant has also not filed any application at any stage for framing of additional issues. Most of the important aspects of the case have not been considered by the courts below while deciding the matter in issue. Hence, without touching the merits of the case, the instant. RSA is accepted. Case is remanded to the learned 1st Appellate Court with a direction to decide the matter afresh within four months positively after taking into consideration whole the evidence produced by both the parties as well as the contentions raised by the learned counsel for the appellant today before this court: It is further observed that if the learned 1st Appellate court comes to the conclusion that some issues are necessary to be framed for the proper decision of the case, then the court would have the ample power to frame the same and thereafter call the evidence on the said issues. Parties are directed to appear before the learned Additional District Judge Lahore on 18-4-2012.