1. SHAH JEHAN KHAN AKHUNDZADA J.--- This single judgment is directed to dispose of two civil Revision Petitions bearing Nos.31 of 2010 and 32 of 2010, because parties thereto are one and the same and both these petitions have arisen out of the common judgment and decree dated 26-11- 2009 passed by the learned Additional District Judge Tank.
2. 2.Briefly stated facts of the cases are that Muhammad Khan, plaintiff/respondent, had filed two pre-emption suits against Mubarak Ali Shah and others, defendants/petitioners, in respect of the land fully described in the plaints mutated through Mutation No.2006 and Mutation No.2007, both attested on 24-2-2000. According to the averments made in the plaints, the plaintiff had superior right of pre-emption qua the defendants on the basis of contiguity, co-sharership, immunities and appendages.
3. 3.Both the suits were contested by the defendants by filing written statements and the pleadings of the parties were formulated into the following issues:--- (1)Whether the plaintiff has got the cause of action?
4. (2)Whether the suit of the plaintiff is time-barred?
5. (3)Whether the plaintiff has made the talbs in accordance with section 13 of the N.-W.F.P. Pre- emption Act?
6. (4)Whether the plaintiff suit is liable to dismissal of special cost?
7. (5)Whether the defendant No.1 has made any improvement on the property in question?
8. (6)Whether the plaintiff is estopped to sue due to his conduct?
9. (7)Whether the plaintiff is entitled to a decree prayed for?
10. (8)Relief?
11. 4.Thereafter, the parties produced pro and contra evidence and then learned trial Judge after hearing arguments of their counsel in respect of the above issues and scanning the evidence brought on record dismissed both the suits vide judgment and decree dated 27-7-2004, but on appeal, the cases were remanded to the trial Judge by the learned Additional District Judge vide judgments and decrees dated 23-6-2007. After remand, both the suits were again dismissed by the learned Civil Judge-I Tank, vide judgments and decrees dated 24-4-2007, however, on appeal, it were set aside by the learned Additional District Judge Tank vide judgments and decrees dated 26-3-2009 and the matters were remanded to the learned trial Judge for decision afresh. On this time too, the learned trial Judge non-suited the plaintiff vide judgment and decree dated 30-9- 2009 which was maintained in appeal vide judgment and decree dated 26-11-2009 passed by the learned Additional District Judge Tank. Feeling aggrieved, the plaintiff has now approached this court through the revision petitions in hand.
12. 5.I heard counsel for the parties and perused the record. Perusal of the record and pleadings of the parties shows that the learned trial Court failed to frame issues as per pleadings of the parties and have left some material issues unframed, due to which the impugned judgments and decrees are suffering from miscarriage of justice, because neither these material issues have been framed, nor the parties have been given opportunity to lead evidence in respect of it, hence in view of the above legal lacunas in the impugned judgments and decrees, the same are not sustainable in the eye of law. Those material issues are framed as under:--- (1)Whether the plaintiff has waived his right of pre-emption on account of the fact that the suit- land was transferred in the name of defendants with his consent and in his presence?
13. (2)Whether the plaintiff has got superior right of pre-emption in the suit-land?
14. (3)Whether sale consideration of the suit-land has been fixed and paid in good faith?
15. 6.As the above material issues have been left unframed and it were found today being material for arriving to a just and correct conclusion of the cases, therefore, counsel for the parties stated at the bar that on account of non-framing of the above material issues, the impugned judgments and decrees are nullity in the eye of law and requested that the same be set aside.
16. 7.Consequent upon the above facts and circumstances, I accept both the revision petitions, set aside the impugned judgments and decrees of the learned two courts below and remand the cases to the learned trial Judge for affording opportunities to produce pro and contra evidence on the additional issues and then to decide the cases afresh by giving findings on all the issues in the light of evidence on record in accordance with law keeping in mind the merits of the suits.