' FAZAL-I-HAQ ABBASI, J.--Madad Khan son of Said Ghulam, resident of Shamuzai Zarakhaila filed a suit on 9-6-1990 in the. Court of EAC, Chakdara, seeking possession of land mentioned in the heading of the plaint, against one Khanay alias Kakey. Suit was contested by the defendant.
Thereafter suit was transferred to the Court of Civil Judge Illaqa Qazi Chakdara on 9-12-1996, amended plaint was submitted, wherein one Umar Khan was arrayed as defendant No.1 while Khanay as defendant No.2. Declaration was sought by the plaintiff that he is owner to the extent of half share, in the land described in the heading of amended plaint; and also prayed 'for possession.
2. As Umar Khan defendant No.1 did not appear, therefore, on 4-1-1999 ex parte proceedings were initiated. However, suit was contested by defendant No.2.
3. In the light -of the pleadings of the parties following issues were framed by the trial Court:--
(1) Whether the plaintiff has got a cause of action?
(2) Whether the suit of the plaintiff was time-barred?
(3) Whether the suit is hit by principle of res judicata?
(4) Whether the plaintiff is estopped by his own conduct?
(5) Whether in the land purchased by father of defendant No.2 from defendant No.1, some part of land of plaintiff was included and whether defendants wrongly sold and purchased the land of the plaintiff?
(6) Whether the defendant No.1 rightly sold his land to the father of defendant No.2? . (7) Whether the defendant is entitled to the decree prayed for?
(8) Relief.
4. On 15-3-2000 statement of the plaintiff was recorded as CW-1. Thereafter on 28-3-2000 statement of defendant No.2, was recorded, who by placing his hand on Holy Quran stated that the suit-land was purchased by him in the year 1981 and that the land which he purchased from defendant No.1, had boundaries, he purchased the same within the boundaries bonafidely, and that defendant No.1 had purchased the same land from Dr. Shoaib and sold to him.
5. On the basis of above referred statement of defendant No.2, suit of the plaintiff was dismissed by the trial court vide judgment dated 5-4-2000. Appeal filed by the plaintiff was also dismissed by District Judge/Zilla Qazi Timargarah, Camp Court Chakdara vide judgment dated 16-2-2001.
6. Feeling aggrieved, the petitioner/plaintiff has preferred this civil revision petition.
7. Respondent No.1 was placed ex parte by the Deputy Registrar of this Court on 15-4-2011. During pendency of civil revision, the petitioner died and his legal heirs were arrayed as petitioners.
8. Learned counsel for the petitioners referred to an application, moved by the petitioner/plaintiff on 15-5-1999 for summoning the witnesses mentioned in the list, which was allowed and a sum of Rs.370 was deposited in the court as diet money. Learned counsel argued that no offer for taking Oath was. Made by the plaintiff, but the learned trial Court offered Oath to the defendant and on the basis of Oath wrongly decided the case. He submitted that both the Courts below wrongly dismissed the suit of plaintiff, by ignoring the statement of plaintiff as such judgments of courts below are liable to be set aside.
9. Learned counsel for respondent No.2 contended that the case was decided on Oath by the Courts below and no interference is required in the concurrent findings.
10. I have heard the arguments and perused the record.
11. On 15-5-1999 the petitioner/ plaintiff submitted application for summoning his witnesses and also deposited diet money on 15-3-2000. Plaintiff was examined as CW-1, who supported his claim but without any offer made by the plaintiff, statement of defendant No.2 was recorded by administering him Oath on Holy Quran. Both the Courts below based their judgment mainly on the statement of defendant No.2.
12. Under Oaths Act, 1873, a party could offer the Oath to the other party, but the opposite party could either accept or reject the offer. Under Article 163(1) of Qanun-e-Shahadat Order, 1984, when the plaintiff takes Oath in support of his claim, the Court shall on the application of the plaintiff, call upon the defendant to deny the claim on Oath. Without any offer or acceptance to take Oath or without taking Oath by the plaintiff in favour of his claim or without application of the plaintiff to call upon the defendant to deny the claim on Oath, both the Courts below erred in law to decide the suit on the basis of Oath taken by defendant No . 2 .
13. In the light of the above, judgments of both the courts below are set aside and the case is remanded to the trial Court for deciding the same on merits after summoning the parties. This revision petition is allowed in the above terms, leaving the parties to bear their own costs. Office is directed to send the record of the case to the trial Court forthwith.