Mohammad Ibrahim Khan, J.--By this Revision Petition Said Jabar who is since no more in this transient world now being represented by his LRs are looking for setting aside the findings in the impugned judgments/ decrees of the learned Courts below. The suit for the prayers seeking declaration in the amended plaint to the extent of 94 kanals 5 marlas may fall in Khasra No, 401, Khatta Khatooni No, 94/194 situated in village Poland Dokada Tehsil Daggar District Buner. By being become owner on account of deeds No, 390, 391 executed on 8.2.1972 and since being on its basis under continuous possession. If at all the LRs of their predecessor Said Jabbar are not found in possession, prayer for possession has also been asked for as an added relief. There is also a prayer for obtaining permanent injunction restraining the Respondents (herein before called as Defendants) from ousting now LRs of the fore named (Said Jabbar) from their physical possession and to restrain any transaction either on account of mortgage/Tamleek and exchange etc.
2. This claim was hotly resisted by the contesting Respondents. Out of the divergent pleading of the parties, the learned trial Court framed as many as nine (9) issues including the relief which are reproduced as under:-- 1.Whether the plaintiff has got not a cause of action?
2.Whether the suit is within time?
3.Whether this Court has got the jurisdiction to entertain the present suit?
4.Whether the suit has properly been valued for the purpose of Court fees?
5.Whether the suit is bad for non-joinder arid mis-joinder of necessary parties?
6.Whether the suit is defective in its present form?
7.Whether the plaintiff is estopped to sue?
8.Whether the plaintiff is entitled to the decree for declaration and permanent injunction as prayed for?
9.Relief
3. The parties led their evidence in support of their claim. It is by impugned judgment of the learned Senior Civil Judge/A'ala Illaqa Qazi Bunir at Daggar dated 26.5.2004 suit under the amended plaint was dismissed and similarly vide judgment and decree of the learned Additional District Judge/Izafi Zila Qazi Buner at. Dagger appeal preferred by the petitioner was dismissed on 30.6.2005, hence this Revision petition.
4. Heard at length.
5. The learned counsel for the parties were given free hand to support the versions of their parties and with their assistance record was also gone through.
6. At the very outset, it was pointed out that on the basis claim under the amended plaint the deceased Said Jabar has no other claim except to get entitled to a decree for land measuring 94 kanals 5 marlas in Khasra No, 401, Khatta Khatooni No, 94/194 situated in village Poland Dokada Tehsil Dagger District Buner, who has purchased this land on the basis deeds No, 390 & 391 executed on 08.02.1972. It was wisely thought of that if at all the party is asserted ownership of a certain land on the basis of sale deed in its favour then when the plaintiff by itself in Para No, Alif mentioned this fact it was bounden duty of the learned trial Court that after framing of an issue in this behalf, the predecessor of the petitioners (herein before called as plaintiff) ought to have given an opportunity to lead evidence accordingly. Learned counsel for the Respondents other than counsel for the Respondent Hazrat Rehman states that there is no need of framing of issue as under the issue "whether the plaintiff is entitled to the decree for declaration and permanent injunction as prayed", both the learned Courts below have delivered findings under the discussion of sale deeds No, 390 & 391 dated 8.2.1972.
7. It amounts to great miscarriage of justice if some issue is required to be framed but left unframed. Guidance is sought from "Mumtaz Ali versus The State" (2013 YLR 1622 Sindh I), "Mubarak Ali Shah versus Muhammad Khan and 3 others" (2014 CLC 1117 (Peshawar I), "Taweez Badshah versus Abdul Nawaz" (2012 CLC 752 IPeshawarl), "Hahib Ullah versus Azmat Ullah" (PLD 2007 Supreme Court 271), "Muhammad Farooque Jagerani versus Abdul Sattar and others" (1997 MLB 903 Karachi I), "Muhammad Jamil and others versus The State" (2000 YLR 231 Karachil), "Shah Muhammad and 3 others versus Abdul Samad and 6 others" (2014 CLC 1609 Balochistan I) and "Shehzad Muzaffar and another versus Masail Khan Abbasi" (2003 M LD 240 'Supreme Court AJ&KJ.
Now in exercise of powers conferred upon this Court under the provisions contained in Order XIV Rule 5, C.P.C. read with 151, C.P.C. ibid the following issue is framed: "whether the predecessor of the plaintiffs by the name of Said Jabar had become owner in possession on account of the sale deeds No, 390 & 391, dated 08.02.1972." if so its effect? (OPP).
8. It is also noted with great concern that except the said Hazrat Rehman whose name appeared at Serial No, 09 of the amended plaint, who has since died and now represented by his LRs, all the other rest defendants are mis-joinders to the present litigation. An issue to this effect has already been framed, but no such findings appear in the judgments of learned fora below as to why names of rest of the defendants except Hazrat Rahman have not been deleted. So all other defendants names stand deleted and only LRs of Hazrat Rahman shall contest the claim of the plaintiffs, LRs of deceased Said Jabbar. In the plaint before the learned trial Court all the LRs of Said Jabar at the panel of the Plaintiffs and all the LRs of Hazrat Reham be arrayed as Defendants who shall alone remain as contesting parties for further litigation.
9. In view of the above findings, this Court is to accept the Revision petition, judgments and decrees of the learned Courts below are set aside. On remand parties are directed to appear before the learned trial Court on 09.02.2017. In the light of above observations, the learned trial Court shall proceed further by giving free hand to the parties to adduce their evidence in proof and in rebuttal as per issue framed in wake of their respective claims.