Ali Akbar Qureshi, J:- This regular second appeal is directed against the judgments and decrees dated 23.12.1987 and 24.10.1981, whereby the suit for possession through pre-emption was decreed.
2. Shortly the facts as stated in the record, that a suit for possession through pre-emption was filed on 11.04.1978, pre-empting the registered sale dated 14.04.1977, for the land measuring 140 kanal 10 marla, alleging superior right of pre-emption. The suit was contested by the appellants/defendants through written statement, the learned trial Court out of the controversial pleadings of the parties framed as many as ten (10) issues, recorded the evidence of the respective parties and decreed the suit vide judgment and decree dated 24.10.1981.
3. Being aggrieved thereof, an appeal was filed by the appellant Khuda Bakhash before this Court i.e. R.F.A. No.1 of 1982, but because of amendment in the law the appeal was transferred to the Court of learned District Judge Muzaffargarh, for its disposal. The learned Additional District Judge Muzaffargarh, heard the arguments of the parties and finally dismissed the appeal vide judgment and decree dated 23.12.1987.
4. It is also pertinent to mention here, that in the first round of litigation, the instant R.S.A. No.12 of 1998, was dismissed by this Court on 25.09.2003, against which the appellant approached to the Hon'ble Supreme Court of Pakistan through Civil Appeal No.720 of 2007, which was allowed on 24.11.2009 and the case was remanded back to this Court, and a direction was given to decide the C.M. No.871-C of 2007, filed under order 41 Rule 27 CPC.
5. In compliance of remand order, the C.M. No.871-C of 2007 was heard and allowed, whereby the appellant Khuda Bakhash was permitted to produce the copies of Jamabandi for the year 1977-78.
6. Thereafter the appellant Khuda Bakhash filed another application C.M. No.61-C of 2013, under Order 41 Rule 27 CPC, seeking the permission to produce the document pertaining to the year 1924 to 1927-28, 1929-30 and 1973-74. The aforesaid application was heard and dismissed on 10-11-2014.
7. Today the main appeal is fixed.
8. Learned counsel for the appellants mainly argued only one point that the appellant Khuda Bakhash while filing the written statement being defendant before the learned trial Court taken a specific stance, while replying para No.3 of the plaint, the same is reproduced here:- Para No.3 of plaint: {{URDU TEXT}} Para No.3 of written reply: {{URDU TEXT}} Although the learned trial Court while framing issues, framed issue No.1, regarding the superior right of plaintiff qua the defendant but no specific issue as regard the superior right of the appellant being tenant was framed.
The issue No.5 framed by the learned trail Court is reproduced here
1. .....
2. .....
5. Whether the plaintiff has a superior right of pre-emption qua the defendant? OPP The aforesaid issue only relates to the superior right of the respondent/plaintiff, whereas the appellant is claiming his superior right of pre-emption on the basis of the tenancy over the land in dispute.
9. The Hon'ble Supreme Court of Pakistan has already ruled in a judgment cited as "Mst.
RasheedaBibi and others v. Mukhtar Ahmad and others"(2008 SCM R 1384) that non-framing of an issue is an illegality amounting to exercise of jurisdiction illegally or with material irregularity.
Relevant part is reproduced here:- "The trial Court was under the legal obligation to frame factual, legal and relevant issues arising out of the pleadings of the parties and hence it failed to perform its duty. From scrutiny of the judgment, it is clear that the parties have been prejudiced for non-framing the issues correctly.
That's why they failed to lead evidence properly. It is the duty of the Court to frame correct issues but the parties were also under duty to make application for amendment of issues. Nevertheless, the Court was bound to frame issues correctly primarily on pleadings of the parties, because the issues framed by the Court correctly reflect the controversies arising from the pleadings of the parties and the Court thus can render an effective judgment on the disputed facts and the party also knows on what fact the evidence should be led. Reference is made to the case of Rozi Khan and others v. Nasir and others 1997 SCM R 1849, Mst. Sughra Bibi and others v. Mst. Jameela Begum and others 2001 SCM R 772. In the case of Ananta Kumar Majumdar and others v. Gopal Ghandra Majumdar and others PLD 1961 Dacca 65, it has been held that plea that framing of a particular issue was not pressed by party affected is no ground for condoning failure to frame necessary issue and the mandate of Order XIV, rule 1, C.P.C. reveals that it is incumbent upon the Court to frame issues in the light of the controversies raised in the pleadings and after examination of the parties, if necessary. Issues of law and facts are to be illustrated clearly, to enable the parties to understand the points at issue to support their respective claims by recording evidence on all material points. It is the settled principle of law that "action or inaction" on the part of the Court cannot prejudice a party to litigation and the failure of Court below to determine material issue amounted to exercise of jurisdiction illegally or with material irregularity."
In the afore referred judgment the Hon'ble Supreme Court of Pakistan has also reminded the duties of the Courts in para No.16 of the judgment which is re-produced as under:- "16. Where the Courts below have missed the above discussed important features and legal aspects from taking into consideration, the Supreme Court as Court of last appeal would be under legal duty to interfere and correct the irregularity and illegality committed by the Courts below. We are surprised to note that the lower courts and the High Court had made their observations declaring the deed validly executed without considering the above referred lacunas in the case."
In another latest esteemed judgment cited as "Muhammad Bashir v. Muhammad Hussain and 16 others"( 2009 SCM R 1256) the Hon'ble Supreme Court of Pakistan almost in the identical circumstances framed issue according to the stance taken by the defendant in a suit, and remitted the case back to the learned trial Court for decision afresh on the newly issue framed by the Hon'ble Supreme Court of Pakistan.
10. At this stage learned counsel for the respondents raised an objection that as this assertion was not pressed by the petitioner before any forum below therefore, at this stage, the appellants are not entitled for this relief. The Hon'ble Supreme Court of Pakistan in the afore-referred judgment has also dealt with the arguments advanced by learned counsel for the respondents while referring a judgment cited as "The Province of Punjab v. Muhammad Hussain Mia"(PLD 1965 SC 1), wherein it was observed, that on the filing of an appeal the entire matter becomes re-open and subjudice and has to be decided in accordance with law prevalent, therefore, even if a ground raised and not pressed, which relates to the fundamental question, as observed by the Hon'ble Supreme Court of Pakistan can be considered by the Court. Reliance is placed on "Abdul Hameed and others v. MuzamilHaq and others"(2005 SCM R 895).
11. Learned counsel for the respondents also argued that the learned Courts below have already concurrently rendered its finding on facts as well as on issues, therefore, the High Court in these circumstances, cannot interfere therewith. The arguments advanced by learned counsel for the respondents have no substance particularly in the peculiar legal aspect of the case. The Hon'ble Supreme Court of Pakistan as regard the concurrent findings recorded by the learned Courts below, has observed that if there is any jurisdictional defect or legal infirmity floating on the surface of the record, the Courts can interfere. Reliance is placed on "Nasir Abbas v. Manzoor Haidar Shah [Civil Appeal No.680/1984], Nazar Abbas v. Manzoor Haidar Shah [Civil Appeal No.681/1984], Muhammad Ibrahim v. Manzoor Haidar Shah [Civil Appeal No.682/1984] and Mst. Sahib Noor v.
Manzoor Haidar Shah [Civil Appeal No.683/1984]" (PLD 1989 SC 568 relevant at page 573).
12. The nutshell of the findings recorded above and the ratio of the judgments delivered by the Hon'ble Supreme Court of Pakistan, it can safely be held that it is the duty of the learned Civil Court to frame issues out of the controversial pleadings/points of the parties, so that the parties could adduce their evidence for fair adjudication of the disputed issue. In this case, despite the fact a specific stance, while filing the written statement was taken in response of para No.3 of the plaint, therefore, learned trial Court was under legal obligation to frame issue according to the controversial pleadings of the parties.
13. In this view of the matter the following issue keeping in view the reply of para No.3 of the plaint made by the appellants, is framed as under:- Issue Whether the appellant had a superior right of pre-emption being tenant of the suit property? OPD Therefore, the case is remanded to the learned trial Court to decide this issue after providing fair opportunity to the parties to adduce their evidence. This exercise shall be completed within one month.
14. Resultantly, this regular second appeal is accepted, the judgment and decree passed by the learned Courts below is set aside and the case is remanded to the learned trial Court to decide the issue, framed by this Court, after recording the evidence of the parties. This exercise shall be completed positively within a period of one month. The parties to the case shall appear before the learned District Judge, Muzaffargarh, on 13.04.2015, who will assign the case to any learned Civil Judge for its disposal. No order as to cost.