Original parties to the suit have expired and they are now represented through their legal heirs in this civil revision. The present petitioners represented the plaintiff while the respondents are the legal heirs of the defendants.
2. Briefly the facts of the case are that the plaintiff filed a suit for declaration alleging therein that his real brother namely Dari was owner of agricultural land measuring 131K and a house measuring 14M fully described in head note of the plaint. He died issueless leaving behind the plaintiff and Defendants No, 2 and 3 as his legal heirs and they were entitled to inherit the estate of the deceased according to their respective shares and that the exchange Mutation No, 2203 dated 05.07.1982 allegedly executed by the deceased in favour of Defendant No, 1 was illegal, without consideration, based on fraud, misrepresentation and as such have no effect on rights of the plaintiff and was liable to be cancelled. A decree of partition of the disputed house was also sought for in the plaint.
3. The defendants contested the suit by filing written statement. They alleged that deceased Dari in his life time with his free consent has alienated the disputed property to Defendant No, 1 through impugned exchange mutation and since then he is in possession over the disputed property. Out of divergent pleadings of the parties, learned Trial Court framed necessary issues, recorded evidence of both the parties and decreed the suit of the plaintiff vide judgment dated 29.04.1992.
Being aggrieved the defendants filed appeal before the learned Addl. District Judge who vide impugned judgment and decree dated 04.04.1994 while accepting appeal of the defendants, dismissed the suit of the plaintiff. This judgment and decree is under attack in this civil revision.
4. Learned counsel for the plaintiff contends that the learned Appellate Court erred in law while passing the impugned judgment and decree; that the plaintiff through cogent and reliable evidence has proved that the mutation in question is based on fraud and without consideration; that the parties were fully conscious of the dispute between them and they adduced evidence accordingly, therefore, non-framing of proper issue was not fatal; that the conclusion arrived at by the learned Appellate Court that Defendants No, 2 & 3 did not support the plaintiff which suggests that exchange mutation factually took place is erroneous inasumuch as the learned Appellate Court has failed to take into consideration that Defendants No, 2 & 3 are also the beneficiary of the disputed exchange mutation; that Defendant No, 1 is the son of Defendant No, 2 and son-in-law of Defendant No, 3, therefore, they were supposed to support the alleged exchange mutation; that the house which was allegedly exchanged by Defendant No, 1 with the agricultural land of deceased Dari was also owned by the said deceased; that there was no evidence available on record price of the agricultural land was equal to the house; that the conclusion arrived at by the learned Appellate Court is the result of mis-reading and non-reading of the evidence; that Defendant No, 1 is beneficiary of the alleged exchange mutation, therefore, he had to prove that the same was validly executed by the deceased but he miserably failed to prove so; that the learned Trial Court after appreciating the evidence in its true perspective had rightly decreed the suit of the plaintiff which has illegally been dismissed by the learned Appellate Court; that the conclusion arrived at by the learned Appellate Court is erroneous in law and is liable to be set-aside.
5.On the converse, learned counsel for the defendants submits that the impugned judgment and decree of the learned Appellate Court is well reasoned; that the learned Trial Court had not framed proper issues and the decision rendered by the said Court was beyond the issues in controversy as such the same was rightly set-aside by the learned Appellate Court; that the plaintiff could not prove that at the time of execution of exchange mutation, deceased Dari was on death bed; that the deceased without any coercion had alienated the agricultural land in favour of Defendant No, 1 in lieu of house which was of equal value and no fraud was committed with the deceased; that other legal heirs of the deceased did not support version of the plaintiff, therefore, the learned Appellate Court has rightly passed the impugned judgment and decree which needs no interference by this Court in its revisional jurisdiction.
6. I have heard the arguments advanced by the learned counsel for the parties and gone through the record.
7. First of all I would like to dilate upon the point whether non-framing of proper issues in the case in hand was fatal for rendering the judgment. It is evident from the record that the pleadings made in the plaint by the plaintiffs was categorically denied by the defendants in their written statement and the parties were fully aware of the subject matter of the controversy between them and admittedly the Trial Court did not prevent any party to lead evidence beyond the framed issues, therefore, in these circumstances non-framing of proper issue was inconsequential. Reliance is placed on case reported as Fazal Muhammad Bhatti and another vs. Mst. Saeeda Akhtar and 2 others (1993 SCM R 2018) wherein it has been held as under: "The pleadings and the issues as originally framed show that the parties were fully aware what was the subject-matter of controversy and what evidence was to be lead by each one. The Court did not prevent the parties from leading evidence at the trial with regard to the defects in the gift. The non-framing of a specific issue in such circumstances is inconsequential."
8. Similarly, in case reported as Muhammad and 9 others vs. Hasham Ali ( PLD 2003 Supreme Court 271) the Hon'ble Apex Court has observed as under:-- "It is settled principle of law that if on a question of fact a specific issue required to be framed in the light of the pleading of the parties was not framed but the parties have produced evidence on the controversial question of fact, the decision can be legally rendered on such question without framing the issue. In the, present case it is an admitted position that none of the parties m any stage of the proceedings made any request either tor an amendment in the pleadings or for framing the additional issue despite the fact that main contest between the parties related to the nature of transaction whether a sale or mortgage."
9. In the instant case no doubt no issue with regard to the validity of disputed exchange mutation was framed but both the were well cognizant of the dispute and they produced their respective evidence on the controversial facts. None of the parties made request for framing of proper issues at the trial stage nor the learned Trial Court restrained them to lead evidence beyond the scope of issues framed. therefore, in my considered view the evidence lead by the parties was in line with the controversial facts and sufficient to resolve the dispute and non-framing of proper issues was not fatal.
10. Now coming to the merits of the case. The controversy revolves around inheritance of the estate of the deceased Dari. It is an admitted fact that the deceased was issueless and plaintiff and Defendants No, 2 & 3 were his only legal heirs but through the disputed mutation the entire property was transferred in favour of Defendant No, 1 who is maternal nephew of the deceased.
Defendant No, 1 was the beneficiary of the disputed mutation, therefore, under the law he has to prove the legality and validity of the said mutation but scanning of his evidence makes it abundantly clear that he failed to discharge the burden of the issue. Defendant No, 1 while appearing in the witness-box deposed that at the time of exchange mutation Haider Noor was present who is alive but strangely he did not examine the said witness as such he intentionally withheld the best evidence. The only witness produced by Defendant No, 1 in this respect was Shana who while appearing in the witness-box as DW-1 did not utter even a single word as to whether he was present at the time of execution of the alleged exchange mutation. Furthermore, from the testimony of the said witness it transpires that the house which was allegedly exchanged with the agricultural land was also owned by the deceased Dari, who had alienated the same in favour of Rasoolan (wife of Defendant No, 1). It can thus safely be concluded that the disputed mutation was without consideration and was executed just to deprive the plaintiff, from his lawful share. The learned Appellate Court non-suited the plaintiff on two counts. Firstly, it was of the view that other legal heirs of deceased Dari i,e, Defendant No, 2 & 3 did not object to the disputed mutation rather they supported the stance of Defendant No, 1 but while holding so the learned Appellate Court did not consider the relationship of Defendant No, 1 with the said defendants.
Defendant No, 2 was real mother of Defendant No, I while Defendant No, 3 is his maternal aunt as well as niothe therefbre, in view of this relationship could not be expected from them to oppose the disputed mutation of which their son and son in law is the beneficiary. Secondly, the learned Appellate Court while referring to the statement of DW-1 held that price of the exchanged house and the agricultural land was equal but there is no such deposition on the part of DW-1. Although Defendant No, 1/DW-2 . deposed in this regard but no such plea was taken by him in his written statement. It is settled principle Of law that the evidence recorded beyond the pleadings of the parties cannot he taken into consideration. Furthermore, no documentary evidence such as market value of the agricultural land and that of the house was produced, therefore, merely on the assertion of Defendant No, 1 it could not be assumed that price of the house was equal to the exchanged land.
11.The learned Appellate Court while justifying the disputed exchange mutation was of the view that relationship of deceased Dari was strained with the plaintiff but this-observation of the learned Appellate Court is beyond the pleadings. No such stance was taken by the defendants in their written statement, therefore, any evidence recorded beyond the pleadings lost its evidentiary value. It has been established on record that the house which was exchanged in lieu of the agricultural land through the disputed mutation was also owned by the deceased, therefore, most important ingredient of transaction i,e, consideration is missing in the impugned mutation as such the same cannot be allowed to remain intact. The learned Trial Court after due appreciation of the evidence in its true perspective had rightly decreed the suit of the plaintiff which has been set- aside by the learned Appellate Court on erroneous assumptions and suppositions as such the conclusion arrived at by the said Court cannot be allowed to remain intact.
12.In view of the above discussion, this civil revision is allowed and consequently the impugned judgment and decree of the learned Appellate Court dated 04.04.1994 is se-aside and that of the learned Trial Court dated 29.04.1992 is restored. No order as to costs.