' SHAHID KARIM, J.--- This is an application under section 115 of Civil Procedure Code, 1908 by way of revision petition against the judgment and decree dated 21.05.1996 passed by the Senior Civil Judge, D.G. Khan as well as the judgment of the Addl. District Judge, Taunsa Sharif, Camp at D.G.
Khan dated 10.2.1998 in appeal. Both the courts below by the impugned judgments and decree have dismissed the suit for declaration filed by the petitioners herein.
2. The relevant facts are that the petitioners instituted a suit for declaration stating therein that the predecessor-in-interest, late Shafi Muhammad, got a suit land allotted on claim No.2056 as per R.L-II.99 on 3.8.1961. After the death of their predecessor-in-interest, the petitioners being collaterals were in continuous possession of the suit land. It was the case of the petitioners in the plaint that one of the petitioners visited the suit land where it transpired that the defendant No.2, Assistant Commissioner, Sadar D.G. Khan had auctioned the suit land in favour of defendant No.3 Syed Hazoor Bukhsh. This, according to the plaint, was done without any notice to the petitioners especially when the land was confirmed having been entered in the revenue record in favour of the petitioners. The order dated 18.10.1984 on the basis of which the alleged auction was conducted was sought to be declared illegal and inoperative against the rights of the petitioners.
3. Written statements were filed by the respondents/defendants. The respondent No.3 simply submitted that he was the auction purchaser and had validly purchased the land in question in the auction proceedings conducted by the respondents. The respondents Nos.1 and 2, in turn, stated in the written statement that the Central Government was the owner of the disputed property measuring 37-Kanal, 5-Marlas as mortgagee and the auction was held on 18.10.84 on the instructions issued by the Government. It was, therefore, stated in the written statement that the suit land was under lien and encumbrance, that the Central Government was the owner of the said land and it had, therefore, been rightly auctioned after proprietary rights had been acquired by the Central Government in the land and upon the failure of the petitioners to make the required payment. The written statement was however silent as to the steps which preceded the auction proceedings conducted by the respondents.
4. The following issues were framed by the trial court:
(1) Whether the plaintiffs are owners in possession of the land in suit? OPP.
(2) If issue No.1 is answered in affirmative, whether the order dated 18.10.84 for the auction of land in suit passed by defendant No.2 in favour defendant No.3 is illegal, void and ineffective against the interest of the plaintiff? OPP.
(3) Whether the suit is not maintainable in its present form? OPD I to 2.
(4) Whether this court lacks the jurisdiction to try the instant suit? OPD 1 to 2.
(5) Whether the plaintiffs have no cause of action against the defendant? OPD 1 to 2.
(6) Whether the suit is incorrectly valued for the purposes of court fee, if so, what is the correct valuation and its effect? OPD 1 to 2.
(7) Whether the suit deserves dismissal as reasons detailed in preliminary objection No.1 of the written statement? OPD 3.
5. The issues Nos.1 and 2 were pivotal to entire controversy and the courts below have decided the said issues against the petitioners.
6. I have gone through the concurrent findings of the courts below and find that material irregularity has crept in the impugned judgments of the courts below and the exercise of jurisdiction was illegal.
7. The precise submission of the petitioners in the plaint was that their predecessor had lawfully been allotted the suit land on a valid claim. This fact is not disputed by the respondents. However, the petitioners go on to state in the plaint that the petitioners were not provided an opportunity of hearing before the said allotment was cancelled, proprietary rights acquired by the Government and the auction proceedings were conducted. It was further the case of the petitioners that they had not only a right of hearing before the impugned order was passed but also that under section 3 of Evacuee Property and Displaced Persons Laws (Repealed) Act, 1975 (Act, 1975), the petitioners had a first right of refusal in case the government came to the conclusion that default had been committed with regard to the payment of mortgaged money by the petitioners. It was also not in dispute that the petitioners were in possession of the land in dispute. The courts below have not adverted to this important aspect of the matter and the findings on the issue No.2 are erroneous to that extent.
8. One of the petitioners Shaukat Ali appeared as PW.1 and deposed that the suit land was allotted to their ancestor Shafi Muhammad on the basis of a claim and the name of Shafi Muhammad had been incorporated in the revenue record. He was completely ignorant about auction to have taken place. The courts below have drawn an inference against the petitioners on account of the fact that it had not been mentioned in the plaint as well as in the testimony of the witnesses that the land was mortgaged in favour of evacuee. However, in my opinion, that aspect should not be taken to offset the claim of the petitioners in the suit filed by them. The fact that the land was mortgaged does find mention in the documentary evidence in the shape of revenue record produced and, therefore, not much turns on that aspect. Copy of the R.O.R has been exhibited as Ex.P.1 and P.2 and the copy of Khasra Gardavari brought on record as Ex.P.4 to P.7. The only witness on behalf of the respondent No.3 was the auction purchaser himself. He merely deposed that he had purchased the suit land in open auction from the Government. Interestingly, the respondent No.3 candidly deposed that if the auction proceedings were illegally held, he may be reimbursed his auction money.
9. The respondents Nos.1 and 2 viz. Asst. Commissioner, Sadar D.G. Khan and the Province of Punjab did not produce any evidence to rebut the claim of the petitioners that the proceedings of reclaiming the suit land and putting it to auction were held at his back without notice to them and in contravention of section 3 of the Act, 1975. The findings of the courts below were predicated on the fact that there is an entry in the revenue record as to the encumbrance of the Central Government on the suit land and since the mortgage had not been got redeemed by the petitioners, consequently the Central Government acquired the proprietary rights which had been auctioned in favour of the respondent No.3. This fact, it is submitted, is not denied by the parties.
However, the crucial question here was as to the steps which preceded the acquiring of proprietary rights by the Central Government which had to conform to the rules and law applicable to such matters and as also that the respondents had to testify that important threshold steps for putting to auction the suit property had been taken by the respondent-government. The petitioners had brought on record cogent and reliable evidence which would bring home the claim of the petitioners on the basis of documents as also that their names had been entered in the revenue record as persons in possession of the suit property. The courts below have not returned separate findings on the issue No.1 viz. Whether the plaintiffs are owner in possession of the land in suit, clearly and definitely and have thus failed to exercise a jurisdiction vested in them. It was not denied that the petitioners were owner in possession of the suit land and enough evidence was brought on record to confirm the same.
10. The case in hand is a classic case of the casual and unsavory manner in which the trial is conducted. It is rather unfortunate that pleadings are too scanty and lacking in material particulars. There is no real and perceptible effort on the part of the lower courts to wade through the maze and arrive at the real issue that bedeviled the matter before them.
11. In the case in hand, it is a common strand running through the case that the original allottee was Shafi Muhammad (Register Haqdarane-Zamin, 1964-65 Ex.P1). It was transferred to the petitioners after his death (Register Haqdaran-e-Zamin 1979-80, Ex.P2). The parties do not take issue on this aspect. The Central government has been entered as a mortgagee and thus, at best, has a right of foreclosure. The next steps are shrouded in a cloak of secrecy. None of the parties has brought to fore in evidence the acts of Central government whereby foreclosure was effected and the process of auction was completed. These steps impacted adversely the rights of the petitioners This was, in essence, the real issue before the trial court. The respondent No.3 was more of a bystander, waiting for the dispute to be resolved so that he could get on with life. The respondents Nos.1 and 2, the representatives of the government which carried out the auction did not bother to advance evidence justifying their actions and the impugned auction. Their stance was dauty and dismissive to say the least. The courts, on their part, have not framed the issues which truly arose from the pleadings of the parties. It .Is, however, too late in the day to recast the issues. That would be tantamount to becoming a contributory to the misery already heaped on the parties. The observations of the Supreme Court of Pakistan in Amjad Ikram v. Asiya Kausar and 2 others (2015 SCM R 1) are aptly applicable to the situation in hand: "The learned trial Court has framed a composite issue regarding merits of the case, which has been reproduced hereinabove and when the said issue is examined in the context of the pleadings of the parties, more particularly, Para No.2 of the written statement on merits, there can be no manner of doubt, as to the real matter in controversy, which required adjudication by the Court.
Throughout the trial, the parties were fully cognizant of the real matter in controversy and the facts, which were required to be proved by them in support of their perspective stands and led evidence accordingly. In such an eventuality, the contention of the learned counsel qua the non-framing of issues pales into insignificance. Such is not only settled' law but also has been consistently held by this Court, including the judgment, reported as Mehr Din (represented by his Legal Heirs) v. Dr. Bashir Ahmed Khan and 2 others (1985 SCMR I)."
12. The courts below have stated that the predecessor of the petitioners has been mentioned as a mortgager and the Central government as a mortgagee yet the transition of the Central government as a proprietor has been assumed by the courts below without adverting to its validity or otherwise. This was the primary grouse of the petitioners. They specifically alleged that the petitioners were in complete darkness as to the time and the steps taken for foreclosure and the necessary legal formalities which ought to have been put in place for the purpose (see paragraph 8 of the plaint). Their grievance is that, prior to auction, no opportunity of hearing was afforded nor were they offered to exercise the equity of redemption vesting in them. Issue No.2, broadly covers this aspect within it but sadly the lower courts were off the mark and this issue, the foundational issue in my opinion, was not telescoped. The only evidence that was produced by the respondent No.3 (the other respondents/defendants did not adduce any) and worthy of mention was Ex.D.1, the auction sheet, and this document does not shed any light on the steps which culminated in the auction.
13. The other ground that has weighed with the courts below in deciding the issue No.2 was that the petitioners had mentioned in the plaint to lay a claim to only 1/4 share of the suit land and they had omitted to claim a declaration in respect of the entire area of the suit land which was 37-Kanals, 5- Marlas. I have seen the plaint and the said findings returned by the courts below is based on material irregularity. The plaint clearly mentions the area of the disputed property as 37-Kanals, 5 Marlas. However, the courts below have been influenced by a column which also mentions the disputed shares as 1/4. This, in my opinion, is not a significant omission to have influenced the courts below to render a finding on issue No.2 against the petitioners. At the most, the plaint drafted in vernacular is not happily drafted and it cannot be concluded that the petitioners merely claimed 1/4 share in the entire suit land. A reading of the entire plaint would reveal ineluctably the intention of the petitioners that the suit was in respect of the entire 37-Kanals, 5-Marlas. Be that as it may, the petitioners had, during the course of the proceedings in the trial court, moved an application under Order VI, Rule 17, C.P.C. For seeking an amendment of the plaint which was not allowed. However, in my opinion, that order by which the said application was dismissed was also erroneous and ultra vires. The amendment ought to have been allowed if at all necessary, in that, it did not change the complexion of the suit or the nature of the relief sought. It was nobody's case that the petitioners were not allottees of the entire land measuring 37-Kanals, 5-Marlas or that auction purchaser had not acquired the said entire land. It was thus patently illegal for the courts below to have returned a finding against the petitioners on the basis of the fact that the petitioners had not sought a declaration with regard to the entire piece of land.
14. For what has been stated above, this revision petition is accepted. The impugned judgments and decree of the courts below are set aside. Consequently, the suit for declaration filed by the petitioners isdecreed as prayed for. The respondent No.3 may approach the concerned authority for the refund of the amount deposited by him as a consequence of the auction proceedings held on 18.10.1984.