' MUHAMMAD ALAM, J.---Petitioners have challenged judgment/decree dated 17.05.2014 of ADJ Skardu, that he passed in the CFA No, 14/2014 of the said court, whereby the said learned first appellate court has upheld judgment/decree dated 30.08.2014 of the learned Civil Judge, Kharmong with slight modifications. For ready reference I reproduce hereunder the operative part of impugned judgment/order that the learned ADJ has passed in CFA No,14/2014:-- "Relief?
The judgment and decree impugned through the instant appeal doesn't suffer any irregularity or infirmity or error nor the same is the result of misreading or non-reading of evidence and based on cogent reasons, therefore, doesn't call for any interference by this court, as such the appeal being without substance is hereby dismissed with no order as to costs. However, this decree/judgment would not affect the right of Provincial Government over Khalisa land, which is part of the suit land."
2. Respondents/plaintiffs filed a civil suit, C.S. No,18/2010 in the trial court, who after completing the trial proceedings passed the following judgment/ decree: - "Issue No,13/Relief
18. The upshot of the above discussion is that the plaintiff has fully proved the case as such decreed and declared as udder:-
1. That the plaintiff is the owner of land bearing Khasra No,1069 measuring 1 kanal 3 marlas, land bearing khasra No,366 measuring 11 marlas and permanent tenant of land bearing khasra No,4143 measuring 8 kanal of 9 marlas, land bearing khasra No,4210 measuring 6 kanal 14 marlas vide Mutation No,466 attested on 08.09.1953 (Exh.P/1). Costs follow the event."
3. Learned counsel for parties advanced arguments before me and I went through the material available on file. On my direction, the case file of Civil Suit No,18/2010 was produced before me and I went through the same also. From ex-facie perusal of pleading of parties it is abundantly clear that the respondents/plaintiffs filed a plaint seeking three reliefs, regarding the suit land. The first relief is of declaration of respondents/plaintiffs title to suit land, the second relief is of possession of suit land and the third one is for grant of permanent injunction against the petitioners/defendants to the effect that petitioners/defendants be restrained from selling, exchanging or making any improvement on the suit land and causing any damages to the trees on the suit land.It is also not disputed that respondents/plaintiffs filed the plaint on 17.01.2010 and then filed amended plaint on 31.03.2014. From comparative perusal of both the said plaints, it is very clear that through the amended plaint respondents/plaintiffs introduced quite different basis of their suit. It is further admitted that learned trial court omitted to frame issues in the light of amended plaint, nor obtained amended written statement from the petitioners/defendants. On appeal the appellate court also did not remand the case to the trial court for framing additional issues in the light of amended plaint. The learned first appellate court introduced the following sentence in the judgment/ decree of the trial court:-- ' "However this decree/judgment would not effect the rights of provincial government or Khalisa land which is the part of the suit land."
4. Learned trial court has declared respondents/plaintiffs permanent tenant of suit land bearing khasra No:4143 measuring 08 kanals and 09 marlas and land bearing khasra No,4210 measuring 06 kanal 10 marlas, of mutation No,466 attested on 08.09.1953 (Exh.P/1), through impugned judgment/decree dated 17.05.2014. But the said impugned judgment/ decree is silent to the extent that who is the owner of this part of suit land, if respondent No, 1/plaintiff is declared permanent tenant. Obviously a tenancy land has always its owner with a tenant.
5. Learned counsel for parties were afforded chance to meet the above pointed out defects in the impugned judgments/decrees of the two courts below and were specifically questioned that whether the above pointed out defects are floating defects amounting to material defects described in Section 115, C.P.C., inviting interference of this court? It is also important to note that while passing impugned judgment the learned first appellate court has remarked that rights of the provincial government will not be effected with the impugned judgment/decree, regarding some part of suit land but at the same time the learned first appellate court has very badly failed to separately describe that part of the suit land, which in the opinion of the said court was Khalisa land/ government land and was part of the suit land. In my opinion failure of trial court in framing issues in the light of amended pleading of the parties is another defect; which also goes to the root of the basic contention between parties. I have further noted yet another very crucial defect in the impugned judgments/decrees, that through the judgment/ decree dated 17.05.2014, the learned trial court did not grant relief of possession to the respondents/ plaintiffs although we find the said prayer in the prayers parts of the plaint.
6. In the sequel of above discussion I, hold that the defects pointed out in the impugned judgments/decrees of the both the courts below are material defects, inviting interference of this court. I, therefore set aside both the impugned judgments/ decrees of the learned two courts below and remand the case back to the trial court for de-novo trial of the case from the stage of obtaining amended written statement from petitioners/ defendants. Petition accepted accordingly. File be consigned to record after its due completion.