' The above titled 2" appeal has been directed against the judgment & decree passed by the District Judge Bagh dated 29.04.2010, whereby, the judgment and decree passed by Civil Judge, Bagh dated 30.08.2008 has been maintained and appeal filed by the appellants has been dismissed.
2. Precise facts necessary for disposal of the instant 2nd appeal are that Mst. Shamim Akhtar, appellants, herein, filed a suit for declaration and cancellation of power of attorney dated 21.01.1996 and gift deed executed through this impugned instrument alongwith its mutation against the respondents before the Court of Civil Judge, Bagh on 08.02.2007. It was averred that Manshad S/o Yousaf hunband of Plaintiff/Appellant No. 1 herein and father of other plaintiffs/ appellants. It was stated that the father of plaintiffs never executed any gift deed and power of attorney and prayed for cancellation of the same alongwith mutation in favour of defendants Muhammad Rehman and Sarfraz sons of Muhammad Ashraf Defendant No. 1. It was further averred that the power of attorney dated 21.01.1996 was forged, fabricated and malicious, which was executed through impersonation. It was also claimed that Respondent No. 1 on the basis of the impugned power of attorney alienated the land comprising Survey Nos. 630, 631 and 633 to Defendants No. 2 & 3. The plaintiffs prayed for cancellation of power of attorney dated 21.01 1996 and gift deed along with mutation being a fraudulent transfer and also being without possession.
3. In reply of the suit, the was filed by the defendants- respondents, in which they refuted the claim of the plaintiffs and stated that the plaintiffs have got no cause of action, therefore, the same be dismissed at an earlier stage.
4. It is also revealed from the record that the above referred suit was filed as a result of the institution of a suit for declaration and perpetual injunction filed by the defendants/respondents against the appellants and some others titled Muhammad Ashraf & others vs. Mst. Shamim Akhter and others on 12.12.2005.
5. Both the suits were consolidated and the trial Court on 12.08.2008 framed total 09 issues. The parties were directed to file list of witnesses and also directed to advance arguments on legal issue No. 2, 3, 4 & 8. The learned Civil Judge Bagh, vide judgment & decree dated 30.08.2008 rejected the plaint under Order VII, Rule 11 of CPC for want of cause of action. Feeling aggrieved and dissatisfied by the said judgment & decree, plaintiffs/appellants, herein filed an appeal before the learned District Judge, Bagh who after hearing the parties also dismissed the appeal and maintained the judgment and decree dated 30.08.2008 passed by Civil Judge, Bagh, vide judgment and decree dated 29.04.2010, hence, the plaintiffs/ appellants, filed the above titled second appeal before this Court for reversal of the same.
6. Sardar Abdul Khaliq Khan, Advocate, the learned counsel for the appellants, reiterated the facts and grounds taken in the appeal and contended that the suit of the plaintiffs/ appellants was well in time from the date of knowledge and there was also ample cause of action on the ground that the appellants were in possession of the suit land and the gift deed was liable to be cancelled on the ground of nondelivery of the possession. The learned counsel maintained that the suit was to be decided on merits but the learned trial Court did not consider such crucial aspects of the controversy and rejected the suit in a hasty manner, without application of its judicial mind. The learned counsel prayed that the judgment and decree passed by Civil Judge Bagh dated 30.08.2008 as well as District Judge dated 29.04.2010 are liable to be vacated on the ground that the cross declaratory suit with the prayer of perpetual injunction have been dismissed in the trial Court, which has attained finality. The learned counsel prayed for acceptance of the appeal and in support of his claim referred and cited the following case law:-
1. 1999 SCR 151
2. A copy of the judgment of this Court titled "Noor Hussain vs. Mohammad Nazim and others" decided on 26.06.2015.
3. Sections 149 and 153 of Mohammadan Law.
7. On the other hand, Respondents No. 1 and 2 appeared in person and supported the impugned judgment & decrees, with full vehemence and craved for dismissal of the appeal with costs.
8. Arguments heard, record perused.
9. It may also be pointed out that initially 2 cross suits were filed before the trial Court and after necessary proceedings vide order dated 12.08.2008 issues were framed. Thereafter, the suit filed by the present appellants, was rejected vide order dated 30.08.2008, whereas, the cross suit titled "Mohammad Ashraf and others vs. Mst. Shamim Akhtar and others" (Suit No. 122) filed on 12.12.2005 after necessary proceedings has been dismissed for want of proof by civil judge Bagh vide judgment and decree dated 09.07.2009.
10. It is pertinent to mention that the original suit was filed before the Civil Judge by present appellants, however, before District Judge 1st appeal was filed by present appellants including Mohammad Manshad, predecessor in interest of the present appellants, Manshad, who was arrayed as pro-forma respondent, who during the pendency of the case passed away and vide order dated 23.09.2014 of this Court his name was deleted from the line of respondents.
11. A perusal of the pleadings of the parties, the judgment passed by the trial Court in cross suit as well as the issues, it is evident that total 09 issues were framed out of cross pleadings of the parties, which are usefully re-produced hereunder:- {{URDU TEXT}} ' It will not be out of place to mention that the trial Court decided the case on legal issues of limitation, cause of action and the maintainability of the suit in its present form. The trial Court numbered these Issues as Nos. 2, 3 and 4 in framing of issues however, in the final order numbered these issues as 1, 2 and 3 erroneously and rejected the suit only on the issue of cause of action.
From the perusal of above issues it is obvious that all the issues were inter-related, and it is also not denied by the respondent that the judgment and decree of the trial Court in cross suit the Issues No. 6, 7 & 8 have been decided against the present respondents and it is also evident from the contents of the judgment dated 09.07.2009 that the respondents (donees) are not in possession of the suit land. In the eventuality of non-delivery of possession of alleged gifted land and the fact of limitation from the date of knowledge coupled with the fact of possession of the appellants over the suit land are the issues of facts. It is also pertinent to note that the application for condonation of limitation supported by an affidavit is also annexed with the suit of the respondents. Hence, the impugned judgment whereby the trial Court after deciding the issue of cause of action, opined that no finding or evidence is required for deciding the issue of limitation etc., is against the spirit of Order XX Rule 5 of CPC to, term the same as a legal judgment.
12. The above facts of the case coupled with other record of the case persuaded the Court to get the suit of the present appellants decided on merits because issues framed by the trial Court in both the suits were subject to the evidenced wherein, the trial Court disposed of the cross suit on merits, whereas, the present suit has been disposed off on technical grounds which is against the norms of justice, because it is apparent from the record that possession of some land out of the land in dispute is with appellants who were living there, in a constructed house and the impugned power of attorney as well as gift deed was the moot point of dispute between the parties, where from, it is apparently transpired that gift deed without possession was also a factor, though, Mohammad Ashraf and Manshad were co-owners in the property but the possession of donees or appellants was also fact subject to evidence. In these circumstances it was incumbent upon the trial Court to resolve the controversy between the parties after obtaining evidence in respect of their respective claims. It is also noted that the plaint has been rejected by the trial Court and has not been dismissed and in this eventuality too the present appellants were at liberty to file a fresh suit on different cause of action to their extent too, which may also give rise to an un-ended litigation.
13. It is also interested to note that both the Courts below have concurrently refused the relief prayed by the appellants on score that their predecessor who was author of the impugned instrument of general power of attorney neither appeared before the Court nor challenged the impugned document before trial Court and also did not appear before the 1st appellate Court despite of application and direction of the Court. The perusal of the order of the 1st Appellate Court, it transpires that no specific direction or notice was issued to the deceased, Manshad for personal appearance. It is important to add that now the predecessor in interest of the present appellants has passed away and present appellants have stepped into the shoes of the deceased who have right to sue the beneficiary of the impugned document. It may also be added again that the cross suit filed by the respondents, Mohammad Ashraf and others for decree of perpetual injunction/declaration etc. Has been dismissed by the trial Court on merits which has not been appealed against, 'hence, attained finality, In this eventuality the suit of the appellants merits disposal on merit too.
14. In light of the above discussed paras the remand of the case is justified because the appellants are legal heirs of the alleged donor who validly raised the question of non-delivery of possession etc. This view of the Court is also fortified by case law referred by the learned counsel for the appellant [1999 SCR 151], the relevant portion of the judgment is reproduced here under: "--Except donor and his heirs no other person can validly raise the question of non-delivery of possession for completion of gift-deed but this does not mean that except donor and his heirs no other person on earth can challenge the validity of a gift-deed on the basis of non-delivery of possession."
15. In light of what has been stated above, the appeal of the appellants is accepted and the impugned judgment and decrees of the learned trial Court as well as 1st appellate Court are set- aside and the case is remanded back to the trial Court with the direction that after framing fresh issues in light of the pleadings of the parties by giving them opportunity to lead evidence and decide the controversy as early as possible but not later than 6 months from today. No order as to the costs.
' Order announced. The file shall be consigned to record after sending back the record of the Courts below. The parties are directed appear before the Court of Civil Judge Bagh on 08.09.2015.