' MUHAMMAD EJAZ SWATI, J. --- This Civil Revision Petition is directed against the judgment and decree dated 25th March, 2010 (hereinafter referred as to "the impugned judgment") passed by the learned Majlis-e-Shoora Mastung (hereinafter referred as to "the Appellate Court") accepting the Civil Appeal filed by the respondent Nos. 1 to 8, whereby, the judgment and decree dated 5th November, 2009, passed by the Qazi Dasht (hereinafter referred as to "the Trial Court") was set aside and the suit filed by the petitioners was dismissed.
2. The facts of the instant Civil Revision Petition are that the petitioners (plaintiffs) had filed a suit before the Trial Court against the respondents (defendants) for declaration, permanent injunction, cancellation of Mutation Entry No. 38, attested on 24th April, 2004, Mutation No. 46, attested on 6th March, 2007, Mutation No. 47, attested on 8th March, 2007 and Mutation Entry Nos. 48 and 49, attested on 10th March, 2007 and 12th March, 2007 respectively, in all measuring 138 rods, 18 poles, situated in Mahal, Mouza Mir Hazar, Tappa Spilingi, Tehsil Dasht, District Mastung (hereinafter referred as to "the property in dispute"). It was averred that the property in dispute was a portion of their_ Shamilaat, situated adjacent to their land bearing Khewet No. 94, 95, 98, 40, Khatooni'No. 97, 98, 99, 183, 184, 187 and Khasra No. 592, 594, 596, 597, 599, 600, 601 and 602, and the father of the respondents Nos. 1 to 7 with the connivance of Revenue authorities through misrepresentation, vide Mutation No. 38 on the basis of Inrigal-e-Sehat got transferred the same on his name. The petitioners were unaware about this fact, however, some days prior to filing the suit, they noticed that the respondents were installing a rig-boring on the property in dispute, which was objected by them and when they obtained copies of the revenue entries, they for the first time came to know about the said adverse entries.
3. The respondents Nos. 1 to 8 (defendants) while submitting their written statements controverter the contention of the petitioners by raising certain legal objections as well as on merits. It was mainly objected in the written statements that the lands of the petitioners are situated in Mouza Mall Janubi, whereas, the disputed property is situated in Mouza Mir Nazar, for which the petitioners have had no concern. Initially, the learned Trial Court rejected the plaint under Order VII, Rule 11, C.P.C. And in appeal the said order was set aside on 10th June, 2008 by the Appellate Court and remanded the case to the Trial Court with directions to implead the Patadaran of the Shamilaat as a party. Upon failure of the petitioners, the Trial Court again dismissed the suit under Rule 3 of Order XVII, C.P.C., which was set aside by the Appellate Court and the petitioners were again provided opportunity to implead the necessary parties. The respondents Nos. 9 to 17 were impleaded by the petitioners as a party.
4. The issues decided by the Trial Court and the Appellate Court in their respective judgments are as under:- {{URDU TEXT}}
5. The petitioners produced five witnesses and got record their statement through attorney. The respondents Nos. 1 to 8 produced three witnesses and got recorded their statement through attorney.
6. The Trial Court after evaluating evidence on record vide judgment dated 5th November, 2009 decreed the suit filed by the petitioners. The respondents Nos. 1 to .8 assailed the judgment and decree of the Trial Court by filing Civil Appeal No. 88 of 2009 before the Majlis-e-Shoora Mastung, where after notice and hearing, the Appellate Court vide impugned judgment allowed the appeal and set aside the judgment and decree of the Trial Court and dismissed the suit of the petitioners.
7. The learned counsel for the petitioners contended that the Appellate Court fell in grave error while allowing the appeal on wrong premises of law and facts; that the material evidence produced by the petitioners has been ignored by the Appellate Court causing miscarriage of justice; that the real controversy related to the impugned mutation entries have neither discussed or determined by the Appellate Court; that the Appellate Court has not recorded the point for determination and reverse the judgment and decree of the Trial Court without making findings on the questions involved, therefore, the impugned judgment and decree is contrary to the Rule 31 of Order XLI of the C.P.C.; that the impugned judgment reflects misreading and non-reading of the evidence, therefore, same is liable to be set aside.
8. The learned counsel for respondent Nos. 9 to 17 while adopting the arguments of the learned counsel for the petitioners stated that the Appellate Court has reversed the findings of the Trial Court merely on the ground that necessary/proper parties have not been arrued in the suit, whereas, respondents Nos. 9 to 17 were impleaded as a party and in the absence of any findings of the Appellate Court that they were not necessary party, the inference of the Appellate Court is based on presumption. It is further argued that even no suit can be defeated by reason of misjoinder and non-joinder of the parties as provided under Order I, Rule 9, C.P.C., therefore, the impugned judgment and decree passed by the Appellate Court is liable to be set aside.
9. The learned counsel for the respondents Nos. 1 to 8 contended that the lands of petitioners are situated in Mouza Mali Junobi, whereas, disputed property is situated in Mouza Mir Hazar, for which the petitioners have no concern; that the petitioners are neither Patadaran of the Shamilaat land nor they had any locus standi to file the suit against the respondents Nos. 1 to 8; that the Trial Court had passed judgment and decree without considering the evidence on record and real controversy between the parties, therefore, findings rendered by the Trial Court were contrary to record; that the Appellate Court while attending the real controversy between the parties after dilating upon the evidence in its true perspective rendered the judgment and decree on the question involved which neither reflect misreading or non-reading of evidence; that the petitioners couldn't produce any evidence to substantiate their contention regarding share-holder in the Shamilaat land situated in Mouza Mir Hazar, therefore, the Appellate Court rightly held so, and impugned judgment and decree is based on sound reasoning and liable to be sustained.
10. Having heard the learned counsel for the parties and considering the evidence on record and law, the perusal of record of the case reveals that vide Mutation Entry No. 38, dated 14th April, 2004 i.e. Exh.P-1/A, the Shamilaat land of Mouza Mir Hazar was transferred in the name of father of respondents Nos. 1 to 7, namely, Jamal Khan and on the basis of said entries, Shamilaat land was converted into an ownership through Intiqal-e-Sehar correction of mutation entries). The record further reveals that after the demise of said Jamal Khan, through inheritance Mutation No. 46 (property in dispute) was transferred to respondents Nos. 1 to 7 (defendants), and through Mutation Entry No. 47, a piece of land was gifted by the respondents Nos. 1 to 7 in favour of respondent No. 8 (defendant) and thereafter through Mutation No. 49, the property in dispute was partitioned amongst respondents Nos. 1 to 3 (defendants). The foundation of all subsequent mutation entries are based on Mutation No. 38 Exh.P-11A. The real controversy between the parties hinges upon Mutation No. 38, and subsequent entries were offshoot of the Mutation No. 38, though Issue No. 8 was framed, yet it did not include Mutation No.
38. The record shows that pleadings were not perused with diligent application of mind by the Trial Court and the issue about the validity of Mutation Entry No. 38 could not be framed and resultantly the parties failed to substantiate their respective claim by producing credible evidence. Provisions of Rules 1, 3 and 5 of Oder XIV, C.P.C. Were ignored as a result whereof the findings of the Trial Court and the Appellate Court thereto are lacking the determination on the point of real controversy between the parties. Duty of raising issue under C.P.C. Vested on the Court to frame proper issue which has not been done and, principal question of facts remained unattended, on the basis whereof the judgment and decree of both the Courts below suffer from material irregularities and illegalities. Reference may be made to the case of Mst. Rasheeda Bibi v. Mukhtar Ahmed (2008 SCM R 1384), wherein it was held as under:- "In the case of Ananta Kumar Majumdar and others v. Gopal Chandra 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 point. It is settled principle of law that "action or inaction" on the part of the Court cannot prejudice a party to litigation and the failure of Courts below to determine material issue amounting to exercise jurisdiction illegally or material irregularity. Reference can be made to the cases of Mst. Hafizan v.
Muhammad Yasin and 2 others 1985 CLC 1448, Muhammad Khalid and another v. Muhammad lqbal and another 2005 CLC 970, Barkat Bibi and others v. Mst. Gaman Bibi and others 2005 MLD 280, Azizur Rehman v. L.D.A. 1985 CLC 2028, Muhammad Mansha and others v. Sabir Ali 1999 SCMR 1782, Muhammad lqbal through Legal Heirs and others v. Khan Muhammad through Legal Heirs and others PLD 1999 SC 35; The State v. Asif All 1997 SCMR 209, Ghulam Haider and others v. Mst.
Raj Bharri and others PLD 1998 SC 20 and Fateh Khan v. Boze Mir PLD 1991 SC 782. In the case in hand we find that proper legal issues have not been framed by the Trial Court fully reflecting pleadings of the parties and this important aspect escaped notice of the Courts below."
11. The other important aspect of the case is that the Mutation Entry No. 38 Ex.P-1/A was Shamilaat land prior to its sanction in favour of Jamal Khan (the father of respondents Nos. 1 to 7), it was therefore, obvious that the suit-land prior to Mutation No. 38 was not owned by the owner in their independent or joint capacity rather it was Shamilaat Deh i.e. a common land reserved for all the Patadaran in accordance with their respective shares, but in pursuant to Mutation Entry No. 38 all the Patadaran of Shamilaat were not impleaded as a party. It is mandate of law that in respect of joint holding at all the Patadaran are required to be impleaded as a party as laid down by the Hon'ble Supreme Court of Pakistan in case of Khalique Ahmed v. Abdul Ghani (PLD 1973 SC 214) as under:- "a suit for possession can be brought by all the co-owners jointly. It is open, however, to one of them also to sue for possession, but he must join the other co-owners as defendants and the decree will be for joint possession and not in favour of the plaintiff only."
The Trial Court as well as the Appellate Court did not advert upon the above important feature and legal aspect of the case from taking into consideration, thus, it would be under legal duty to interfere and correct the irregularities and illegalities committed by the Courts below, therefore, the judgment and decree passed by the Courts below are not sustainable.
' In view of the above, this Civil Revision Petition is partly allowed and in exercise of powers conferred under section 115, C.P.C., the judgment and decree dated 5th November, 2009, passed by the Qazi Dasht and judgment and decree dated 25th March, 2010, passed by the Majlis-e-Shoora Mastung are set aside, in result, the case is remanded back to the Trial Court for fresh decision after impleading the shareholders of the Shamilaat pursuant to Mutation Entry No. 38 as a party and after framing additional issue in respect of validity of Mutation Entry No. 38, and to provide opportunity to the parties to produce evidence, within 6 months from the date of receipt of copy of the judgment of this Court.