' GHULAM MUSTAFA MUGHAL, C.J.---This appeal has been filed against the judgment and order passed by the learned District Judge, Poonch/Rawalakot on.
19.02.2010.
' Facts forming the background of this second appeal are that Mir Muhammad Khan and others brought a suit for possession-cum-ownership in respect of land comprising Khasra No.304 old, 790 new, situated in Village Sharqi Pachiot against defendant in the Court of Civil Judge (Court No.1), Rawalakot on 25.08.2000. It was claimed that land was in the ownership of the plaintiffs and pro- forma respondents. It was averred that father of the defendant Shahadim was an occupancy tenant who has died and now the defendant/respondents, herein, are in possession of the land.
The defendant was asked to deliver the possession of the same but he has refused to accept the ownership of the plaintiffs. The suit was contested by the defendant by filing written statement, wherein, it was stated that suit is time barred. Moreover, it was pleaded that some necessary parties have not been impleaded, in line of the respondents, therefore, suit is liable to he dismissed for non-joinder of necessary parties. It was claimed that suit land was transferred by the predecessor in interest of the plaintiffs and pro-forma respondents on 20.04.1997 (B.K) through a registered agreement and since then father of the defendant and after his death, he is in continuous possession of the same. In alternative, it was claimed that defendant has a right to protect his possession in light of principle of part performance contained in Section 53-A of the Transfer of Property Act. It was also stated that defendant has effected improvements over the suit land in shape of house etc. And also claimed adverse possession of the suit land. The learned trial Court farmed issues in light of the pleadings of the parties on 24.05.2004. The parties led evidence pro and contra. At the conclusion of the proceedings, the learned Civil Judge (Court No. 2),.
Rawalakot, vide judgment dated 25.08.2007 granted decree of possession in favour of plaintiffs in respect of suit land Khasra No.304 old 790 new, measuring 4 kanal 4 marlas. The defendant felt aggrieved from the judgment dated 25.08.2007 and challenged the same through an appeal before the District Judge Rawalakot on 30.08.2007. After hearing the parties, the learned District Judge Poonch vide judgment and-order dated 19..02 . 2010 while framing additional issues remanded the case to the trial Court for fresh decision, after recording evidence. This second appeal has been filed against the aforesaid order on 13.03.2010 ' Syed Habib Hussain Shah, learned Advocate appearing for the appellants contended that remand in this case was not desirable, hence, the order recorded by the learned District Judge Poonch is erroneous illegal and against the settled principle of law. The learned Advocate contended that defendant/respondents has not requested the trial Court for framing the issues at proper time and kept mum, therefore, in first appeal he cannot ask the Court to frame additional issues. The learned Advocate contended that where a party has failed to raise objection regarding framing of issues at proper time then no such a ground can be raised in first or second appeal. The learned Advocate submitted that even otherwise parties have led evidence pro and contra in support of their respective pleadings and recording of the fresh evidence was not at all required because the Court itself can decide the case on the basis of available. Evidence. In support of his submissions, the learned Advocate placed reliance on the following case law:-
1. Muhammad Karim and 3 others v. Kala and 4 others 2014 YLR 353
2. Mehmood Ahmed and 8 others v. Malik Abdul Ghafoor [PLD 2011 Lah. 522]
3. Hakim All v. Muhammad [1994 CLC 879]
4. Noor Ullah and other v. Jehangir Khan and others [2011 YLR 1746];
5. Muhammad Ryas v.Mst. Munir and another [2012 CLC 1951] ' The learned Advocate submitted that agreement referred to and relied upon by the defendant in his written statement was not entered in the revenue record, therefore, cannot be considered after such a pretty long period. The learned Advocate contended that a tenant-at-will cannot claim adverse possession. In support of his contentions, the learned Advocate placed reliance on the following case law.
1. Feroz Din Khan v. Muhammad Latif Khan and 5 others [PLD 2012 SC (AJ&K) 13];
2. Raja Muhammad Akram Khan v. Azad Government and others [2006 CLC 1872];
3. Hussain Bakhsh and 5 others v. Mst. Bashiran through General Attorney [PLD 2010 Peshawar 1891]; 4 . Mst. Ishrat Zaidi v. Sabir Hussain Siddiqui and another [2013 YLR 262];
5. Isamdad Khan and another v. Muhammad Khurshid Khan and 10 others [2012 MLD 1635];
6. Muhammad Saddique and 10 others v. Raj Begum and 39 others [2008 CLC 61];
7. Muhammad Hussain Khan and 13 others v. Mst. Aziza Begum and 28 others [2007 MLD 1144];
8. Azad Govt. And 2 others v. Abdul Razzaq and 6 others [2008 SCR 505];
9. Sardar Muhammad Sarwar Khan and 2 others v. Muhammad Nawaz Khan 2012 MLD 1440 ' Conversely, Mr. Sardar Khan, the learned Advocate appearing for the respondents contended that a specific plea was raised in the written statement by the defendant that he has a right to defend his possession over the suit land on the basis of agreement which was a registered document. The learned Advocate argued that agreement to sell being 30 years old document was admissible in the evidence and the defendant cannot be dispossessed from the suit land on the basis of part performance of contract. The learned Advocate submitted that it is basic duty of the Court to frame proper issues arising out of the pleadings of the parties and failure of the parties to ask the Court to frame proper issues at proper time does not absolve the Court from its legal obligations.
The learned Advocate argued that defendant has raised construction over the suit land in shape of houses etc., and no issue was framed to this effect by the trial Court. The learned Advocate submitted that additional issues were the requirement of law. The learned Advocate contended that defendant is in possession of 30 years old document and the same is acted upon, therefore, the same cannot be ruled out from consideration. In support of his submissions, the learned Advocate placed reliance an a case titled Khadim Hussain Khan and 9 others v. Mst. Sarwar Jan and 27 others, 1999 MLD 824.
' I have heard the learned Advocates for the parties and gone through the record of the case.
' So far as the contention of Syed Habib Hussain Shah the learned Advocate for the appellants that remand was not desirable in this case rather it was enjoined upon the District Judge to decide the case himself is concerned, in the circumstances of this case has no substance. It is correct that appellate Court is empowered to remand the case when it becomes necessary in view of law contained in Order XLI, Rules 23 and 25 of the Code of Civil Procedure. However, the remand cannot be ordered in routine mere for giving a party an opportunity to fill in the lacunas of his case. The superior Courts of Pakistan and Azad Jammu and Kashmir are unanimous on the point that ordinarily remand should not be ordered in routine. The apex Court of Azad Jammu and Kashmir in Muhammad Karim's case reported as 2014 YLR 353 referred to hereinabove at page 356 observed as under:-- "A perusal of the judgment of the High Court shows that the learned single Judge in the High Court has not recorded detailed reasoning for accepting the appeal but we are of the opinion that the parties are litigating in the case for a pretty long time. If from the record it is possible to resolve the controversy instead of remanding the case back to the lower Court, the Court instead of remanding the case, has to decide the appeal on merits itself."
' In the present case, the learned District Judge has not decided the controversy on merits, therefore, it is impossible for this Court to decide the appeal on merits. However, a contemplate perusal of the plaint and written statement reveals that defendant has specifically pleaded that he is in possession of the suit land on the basis of agreement dated 20.04.1997 B.K. It was also pleaded that he is entitled to defend his possession on the basis of aforesaid agreement and in view of principle contained in section 53-A of the Transfer of Property Act. Similarly, in para 3 of the written statement it has been specifically stated that defendant is owner of the land on the basis of the said agreement and has effected improvements over the suit land in shape of construction of houses, the cost and value of the same is more than Rs.20,00,000 (20 lac). He has also claimed some other improvements. A perusal of the judgment of the trial Court reveals that issues were framed on 24.05.2004. No issue was framed with regard to the plea taken by the defendant.
Similarly, it is specifically pleaded that he has effected improvements in shape of houses which come to Rs.20,00,000 (20 Lac) but no issue was framed to that effect by the learned trial Court.
Though it is the duty of the parties to remain vigilant at the time of framing of issues and if any issue has not been properly framed by the Court or the Court has omitted to frame the issue then the attention of the Court for framing proper issues should have been invited but in my estimation basic duty of raising or framing proper issues in light of the pleadings of the parties is that of the Court. The failure of the Court to perform the duty legally in accordance with law cannot be condoned mere on the fact that a party has not asked the Court at the relevant time for framing the proper issues. The other contention of the learned Advocate for the appellants that sufficient evidence was available on the record and it was necessary for the District Judge to decide the appeal after framing the additional issues himself and remand is not desirable has also no substance. Though the effect of newly framed issue No.1 can be looked into by the District Judge but with regard to the other issues it is necessary to record evidence. The question of improvement cannot be determined without evidence, therefore, judgment and order of the first appellate Court cannot be termed as illegal. On the basis of above, it cannot be concluded that remand in this case was not desirable or violative of law.
' Before parting with the case, it may be stated that the learned District Judge has remanded the case while exercising powers under Order XLI, Rule 25, C.P.C. And it was, not necessary for him to remand the whole case to the trial Court. Under this rule, it was enjoined upon the District Judge to keep the appeal pending and remit the case to the trial Court for taking additional evidence on additional issues and returning its findings on the same and then resubmit to the first appellate Court along with its findings. It has been opined by the apex Court in case titled "Muhammad Yunus and 5 others v. Abdullah and 3 others" (PLD 1897 SC (AJ&K) 133] at page 136 of the report after discussing the case law on the subject as under:-- "We have no quarrel with the proposition laid down in the aforesaid authorities-but the point in the controversy in the present appeal is altogether different from one which as involved in the aforesaid two authorities. It may be mentioned here that Order XLI, Rule 25, C.P.C. Is absolutely clear on the point and there is no ambiguity. If any of the contingencies envisaged in the aforesaid order exists, the High Court is not legally justified to remand whole the case to the trial Court for afresh findings, it shall retain the appeal on the High Court file and direct the lower Appellate Court to try the additional issue and remit the record to the High Court along with its findings.
' The question as to whether the respondents are entitled to any improvements or not is left open to be decided by the High Court at the time of the final disposal of the appeal. So far issue on the question of improvement is concerned, same can be framed even if that does not arise out of the pleadings, as has been held in Mst. Fatima Bibi. Allah Ditta 1983 CLC 557.
' In view of above, judgment of the first appellate Court is maintained with the modification that he shall refer the newly framed issues along with file to the trial Court for recording additional evidence and returning its findings and till then appeal shall remain pending before him. After taking the evidence and deciding the issues, the trial Court shall resubmit the case to the first appellate Court for decision on merits. The first appellate Court shall rehear the arguments on whole appeal and decide the case afresh. As the parties are litigating since 2000, therefore, I would like to direct the trial Court to conclude the controversy within a period of 03 months after receipt of this order. Accordingly ordered.