' YAHYA AFRIDI, J.- This revision petition is directed against the judgment and decree dated 14.11.2012, passed by learned Additional District Judge-VII, Peshawar, whereby the appeal filed by petitioners against judgment and decree dated 28.09.2011, of learned Civil JudgeXXI, Peshawar, was dismissed.
2. The brief and essential facts of the instant petition are that, respondents/plaintiffs filed a suit for declaration with injunction relief with possession in respect of property measuring 3 Kanals situated in Khasra No.3102 Moza Sangu, Peshawar ("disputed property") being owner in possession against petitioners/defendants, which was contested by the petitioners/defendants through filing written statements. Based on the contesting pleadings of the parties, the trial Court was pleased to frame the following issues:-
(1) Whether plaintiff has got a cause of action?
(2) Whether the plaintiff is estopped to sue? .(3) Whether the suit of the plaintiff is based on mala fide hence liable to be dismissed?
(4) Whether this Court has got jurisdiction to entertain the present suit?
(5) Whether the suit of plaintiff is time barred?
(6) Whether the plaintiff is owner in possession of suit property bearing Khasra No.3102 Khata No.367?
(7) Whether the plaintiff is entitled to the decree as prayed for?
(8) Relief.
3.. Parties produced their pro and contra evidence in support of their respective contentions. The learned trial Court after hearing arguments of learned counsel for the parties decreed the suit of the respondent vide impugned judgment and decree dated 28.09.2011.
4. Aggrieved of the decision of the trial Court, the present petitioners appealed against the same, which was also dismissed by the appellate Court vide judgment and decree dated 14.11.2012, hence the present petition.
5. Valuable arguments of learned counsel for the parties were heard and the record perused.
6. The essential factual background of the case is that the parties are related to each other, being legal heirs of Amber; and in particular, Dost Muhammad, Dilbar and Afzal are sons of Hussain Ali.
Afzal died issueless, while Mst. Paro widow of Amber. Dost Muhammad was the successor-in- interest of present petitioners, while Dilbar was the successor-in-interest of the present respondents.
7. The stance taken by present petitioners is that, they are armed with a decree dated 28.5.1983, which had clearly carved out their share in the legacy of Aniber, and the same included the disputed property, which is in their possession. It is further contended that, the crucial issue regarding the judgment dated 28.5 1983, has not been framed by the trial Court, hence, the case warrants remand. Fourthly, it was asserted that, the two Courts below have erred by allowing the respondents to go beyond their pleadings. Reliance was sought on Muhammad Akbar's case (1998 SCMR 724), Bharoo's case (1999 SCM R 786) and Mst.Malkani's case (2004 SCM R 1591).
8. In rebuttal, the worthy counsel for the respondent contested the assertions of the counsel for the petitioners and maintained that the two Courts below had correctly adjudged the claim of the respondents, which was in accordance with settled principles of law.
9. The crucial issue in the present case is issue No.6, which stipulates as under:- "Whether the plaintiff is owner in possession of suit property bearing Khasra No.3102 Khata No.367?"
10. In order to prove the ownership, the respondents/plaintiffs have been able to produce consistent entries in the revenue record in support of their title and possession over the disputed property spanning more than half a century dating back to entries in the revenue record of 1929-30 (Ex.PW.1/4 to Ex.PW.1/20).
11. However, the crucial entries relate to period after 28.5.1983, when the present petitioners had obtained a preliminary decree in the suit for possession through partition against the predecessor- in-interest of the plaintiffs/respondents vide Civil Suit No.229/1 ("Preliminary decree"). The said suit for possession through partition, finally culminated in preliminary decree dated 28.5.1983 holding in terms:- "In the light of my above discussion plaintiffs are entitled to half of 3/4 share from the property of deceased Amber in residuary capacity in case of prayer (A) landed property the decree of possession to the evtent is granted in favour of plaintiff (predecessor in interest of petitioners) against the defendants (predecessor in interest of respondent).
' In case of prayer (B) preliminary decree to the extent of same share as mentioned above is granted to the plaintiff from the houses owned by the Amber. Plaintiffs have no concern with the house exclusively owned by defendant and did not get inheritance from Mst. Paro of Amber.
Parties are left to bear their own costs."
12. The record is silent regarding any final decree being sought or passed in favour of the present petitioners regarding disputed property. When the worthy counsel for petitioner was confronted with the same, his response was that there was no need for filing or seeking a final decree, as the petitioner was in possession thereof after passing of a preliminary decree. This Court is not in consonance with.The contention of worthy counsel for petitioners.
' Firstly, as far as partition cases are concerned, a preliminary decree decides the respective shares of all the co-owners in the undivided joint property. For execution thereof, a final decree has to be sought for the, inter alio, deliver the possession of the share of each co-owner in the corpus of he divided property. Thus this inaction on the part of the present respondents to move or agitate, for seeking possession of their respective shares for the last three and half decades, clearly goes against their present stance.
' Secondly, as far as possession of the petitioners over the disputed property is concerned, the entire revenue record is silent regarding their possession thereof. Infact, the statement of the prime witness of the petitioners, Ali Ahmad (DW.1) belies the said stance, so taken by the worthy counsel for petitioners regarding the possession of the petitioners over the disputed property.
13. Moving on to the contention of worthy counsel for petitioners that the crucial issue regarding res judicata arising out the Preliminary Decree, ought to have been framed by the trial Court, this Court is not in accord therewith, as the judgment sought to be relied upon by the petitioners, has been duly produced in evidence and discussed by the trial Court in its deliberations in resolving Issue No.6. In this regard, the apex Court while relying upon Fazal Muhammad Bhatti's case (1993 SCMR 4) has reiterated the settled principle on the matter in a recent judgment in Abdul Karim's case (2012 SCM R 212) in terms that: "In the absence of miscarriage of justice due to non framing of issue on a particular controversy in the matter, like where Court did not allow the parties to lead their evidence in support of their contentions for want of issue. If on a question of fact, a specific issue required to be framed in the light of the pleading of the parties is not framed but parties have led evidence in support of their respective stance, the decision on such question can be rendered in the light of evidence available on record without framing the issuse."
14. Even otherwise, the worthy counsel for respondents referred the attention of this Court to mutation No.5098 attested on 11.1.1989, which was recorded in the Jamabandi for the year 1985- 85(sic) (Ex.PW.1/161, whereby the present petitioners were transferred 20 Kanals, 17 Marlas on the basis of decision of Jirga of the elders. When the worthy counsel for respondent was confronted as to why this document was not produced during evidence, he responded by contending that this cancellation took place a subsequent stage after recording of evidence of Patwari Halqa. He further clarified that the said mutation No.5098 was under review of its attestation. Infact, even the Khasra-e-Girdawari (Ex.PW.1/21) does not record the present petitioners in possession of the disputed property.
15. The G'ishwara-e-Afalkiyat of the disputed property (Ex.PW.1/20), records the respondents/plaintiffs in the column of ownership having been recorded as owners in possession of one Kanal, 3 Marlas, while the present petitioners are not mentioned as owner of the disputed property. The worthy counsel for respondents/plaintiffs was confronted with the other co-owners in the said Khasra No.3102, he responded that the said co-owners had not interfered with peaceful possession of the plaintiffs/respondents' right over the disputed property, as they had entered into a private settlement and were not disputing the peaceful possession of the respondents/plaintiffs.
When further confronted with the note meationed in column of Kaifiyat, in the Gushwara-e- Malkiyat (Ex.PW.1/20), wherein the petitioners was stated to have been recorded on the basis of mutation No.6757, relating to the Preliminary decree, he contended that the same had been cancelled and was never approved by the Revenue Officer, as the parties had entered into a settlement, whereby the petitioners did not move the Court for final decree or for execution of the preliminary decree passed in their favour in the year 1982 and as reflected in mutation No.5098 attested on 11.1.1989.
16. As far as the other contention of worthy counsel for petitioners that the plaintiffs/respondents could not go beyond their pleadings, this Court is in consonance with the said legal proposition advanced by the worthy counsel for petitioner. However, the particulars of the evidence need not to be mentioned in the plaint and the same can be produced B during recording of evidence. The plaintiffs/respondents had to make their claim, which they did in their plaint in the present case.
This is in line with the principle governing pleadings; as provided in Order VI Rule 5 of Civil Procedure Code, 1908 ("CPC"), and has been very eloquently described by the apex Court in Pir Muhammad's case (PLD 2007 SC 302) wherein the earlier judgments in Haji Noor Muhammad 's case (2000 SCM R 329) and Altaf Hussain 's case (2000 SCM R 314) were discussed in terms that:- "However, we agree and endorse the view taken in both the judgments that there is no necessity of mentioning the name of witnesses because then it would be a departure from the ordinary law of pleading as provided in Order 6 Rule 5 C.P.C. As evidence is not required to be noted in the pleadings and only necessary details are to be furnished for the purpose of making out a prima facie case to establish that a cause of action has accrued for invoking the jurisdiction of the Court for the redressal of grievance."
17. Before parting with this judgment, it would be fair to address the issue of remand of the present case to the trial Court, so vigorously taken by the worthy counsel for petitioner.It is by now settled principle of law that, in cases when there is no need for recording of additional evidence, it ought to decide the case and not remand the same a lower Court. In this regard, the apex Court referring to appellate Courts in Muhammad Dervaish Al-Gilani's case (1997 SCM R 524), has observed that: "The learned Judge in Chamber could have decided the case on merits on the material on record as from the impugned judgment it does not appear that there was any deficiency in evidence or the evidence was not sufficient to pronounce the judgment. In such circumstances the learned Judge instead of remanding case should have pronounced the judgment on merits. The principles for remand of the case to the lower Court for deciding on merits/or retrial are well settled. This power should not be exercised lightly but sufficient care should be taken in remanding the case.
The Court should examine the evidence and if it comes to the conclusion that it is not sufficient to pronounce the judgment or decide the issues between the parties, it can remand the case or may itself record the evidence and decide it. But if on record there is adequate and sufficient evidence on which decision can be made, the remand would not be justified."
' However, this view has consistently been followed by the apex Court in Ashiq Ali's case (PLD 2004 SC 10), Muhammad Mukhtar's case (2007 SCM R 1867), and finally in Habib Ullah's case (2007 SCMR 271) it has been observed that: "A remand of case should not be lightly ordered and if evidence on record is sufficient then Appellate Court should decided the case itself The Courts administering justice had to bear in mind that an order of remand could re-open another chain of litigation, which not only entails wastage of public time but also delays disposal of cases; involved unnecessary expense of parties and these vices are seriously detrimental to the justice system."
18. In the present case, the relevant evidence has been recorded; the preliminary decree and the revenue record dating back to over half a century has not only been placed on the record but commented upon by the two Courts below. In these circumstances, the assertion of the learned counsel for petitioners for remanding the case to the trial Court for framing of issue regarding res judicata_is not warranted.
19. Finally, this Court is exercising its revisional jurisdiction which has been dilated upon by the august Supreme Court in Muhammad Idrees v. Muhammad Parvez's case (2010 SCM R 5) and held that: "The High Court in exercise of its revisional jurisdiction under Section 115, C.P.C. Unless such findings suffer from controversial defects, illegality or material irregularity as law laid down by the Privy Council in Hindu Religious Endowments Board, Madras' case PLD 1949 PC 26. With regard to section 115, C.P.C. It is observed by the Privy Council as under:-
(i) This section empowers the High Court to satisfy, itself upon three matters:---
(a) That the order of the subordinate Court is within its jurisdiction.
(b) That the case is one in which the Court ought to exercise jurisdiction.
(c) That in exercising jurisdiction, the Court has not acted illegally, that is breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
20. Keeping in view the above guiding principle regarding exercise of revisional jurisdiction, it is noted that even if the revisional Court comes to a different conclusion than that arrived at by the two Courts below, it cannot interfere in the findings, so arrived therein, unless the same is arbitrary, capricious or out rightly absurd, which is not the case in the present matter.
21. Accordingly, for the reasons stated herein above, this petition along with CM are dismissed.