SYED ARSHAD ALI, J.- Through the present revision petition, petitioner has called in question the consolidated judgment/order dated 03.01 .2009 passed by learned Additional District Judge, Battagram, whereby the appeal filed by the present respondent against the judgment and decree dated 30.04.2004 was accepted, the case remanded back to the learned trial Court.
2. Brief but essential facts of the instant case are that present petitioner filed a suit against the respondents before Civil Judge, Battagram for declaration to the effect that the suit property fully explained in the heading of the plaint was originally owned by predecessor of the parties namely Pir Alam and thus on his demise, the said property had devolved upon the petitioner/plaintif f, defendant No.1 and defendant No.3 in accordance with their sharee shares.
He has also challenged mutation No. 402 dated 25.11.1975 whereby land situated in Khasra Nos.20 and 25 was transferred to defendant No.1 Maraj ul Alam by the predecessor of the parties and the subsequent mutation No. 1369 dated 28.1.1987, whereby the said property was further transferred to defendant No.2 Muhammad Jan. The petitioner has also prayed for possession and temporary injunction as the alternate relief. On being summoned, all the defendants contested the suit by filing their written statement. From divergent pleadings of the parties, the learned trial Court framed 09 issues and directed the parties to produce their respective evidence. On conclusion of trial, the suit of the plaintiff was decreed by learned trial Court vide judgment and decree dated 30.07.2004.
Defendants No.1 and 3 challenged the said judgment and decree through appeal No.66/13 of 2008 whereas defendant No.2 Muhammad Jan challenged the said judgment and decree through separate appeal No.67/13 of 2008. While the said appeals were pending adjudication before learned appellate Court, defendant No.1 Maraj ul Alam instituted a suit No.103 on 26.3.2005 against the present petitioners and others before civil Court at Battagram for declaration to the effect that the suit property which is fully described in the plaint was originally owned by their predecessor Pir Alam and on his demise the said property had devolved upon plaintif f, defendant No.1 and other sister of defendant and entries in the revenue record whereby the petitioner was recorded as owner of the suit property was also challenged. When the petitioner was informed about the said suit through process of the Court, he contested the suit by filing his written statement. The plaintif f in suit No.103 Maraj ul Alam had also filed an application for temporary injunction alongwith the suit. The said application was dismissed by learned trial Court through order dated 02.8.2006. The said order was challenged before learned appellate Court through appeal No.17/14 of 2008. All the above appeals were decided by learned appellate Court through consolidated judgment/order dated 03.01.2009, where by the case was remanded to learned trial Court. The petitioner has challenged the said judgment/order through present revision petition.
3. Learned counsel for petitioner has argued that evidence of the parties on the record was sufficient to decide the main appeal, therefore, the impugned judgment of appellate Court whereby the case was remanded to the trial Court is not justified. He placed reliance on Rehman Shah and others Vs. Sher Afzal and others (2009 SCMR 462) and PLD Ashiq Ali and others Vs. Mst. Zahir Fatima and others (2004 Supreme Court 10).
4. On the other hand, learned counsel appearing on behalf of the respondents has supported the impugned judgment passed by appellate Court and has argued that the remand order passed by appellate Court was justified under the facts and circumstances of the case.
5. Argument heard and record perused.
6. Petitioner/plaintiff Isteftanosh, the defendant Maraj ul Alam and Mst. Hussan Parri are the legal heirs of Pir Alam. Prior to 1966 Battagram District was unsettled area and in the year 1966 settlement in the said area was completed and Misl-i-Hakiatlrevenue record was prepared for the first time. It is also on the record that predecessor of the parties Mir Alam had died after settlement, however, his exact date of death does not discern from the record.
7. Precise claim of the plaintiff was that the entire suit property originally belonged to their predecessor Pir Alam, therefore, entry in the settlement record whereby defendant Maraj ul Alam was recorded as owner in Khasra No.453, 456 and 457 as reflected in the Misl-e-Hakiat for the year 1996-67 were incorrect.
Similarly, he has also challenged the sale of land through mutation No. 402 dated 25.11.1975 whereby the suit property comprised Khasra Nos.20 and 25 was transferred by Pir Alam to Maraj ul Alam and subsequent mutation No. 1369 dated 28.1.1987 by Maraj ul Alam to Muhammad Jan/defendant No.2 was also challenged.
8. Plaintif f in support of his claim produced patwari halqa as PW, who produced revenue record i.e. Misl-e-Hakiat for the year 1966-67 and Jamabandi for the year 1998-99 as Ex:PW1/1 and Ex:PW1/2. He also produced parth of mutation No.402 dated 25.11.1975 and mutation No.1369 dated 28.1.1987. Plain tiff himself appeared as PW-3, whereas Yaqoob Khan son of Jan Muhammad from whom defendant Maraj ul Alam claims to have purchased a portion of property appeared as DW 1. He has supported the stance of defendant No.1 Maraj ul Alam regarding the sale of the property by his father to Pir Alam. The other son of Jan Muhammad namely Muhammad Afzal Khan appeared as DW-2 and also supported the statement of defendant. Muqtadir son of Qalandar , a 60 years old person, appeared as DW-3 and has stated that property known as "Masooma Marfanday paty" originally belonged to Jan Muhammad Khan which was mortgaged with Pir Alam and Maraj ul Alam. Whereas defendant No.2 Muhammad Jan appeared as DW-4, who claimed to be bonafide purchaser of portion of suit property which he purchased through disputed mutation No.1369 dated 28.1.1987 and defendant Maraj ul Alam did not opt to appear as his own witness. Thus the parties were provided full opportunity to lead their evidence and the learned trial Court after appreciating the evidence decreed the suit of the plaintif f against the defendants and resultantly mutation No.402 and 1369 were cancelled only to the extent of share of petitioner/plaintif f and defendant No.3.
9. The learned appellate Court had consolidated the appeals filed by Maraj ul Alam against the impugned judgment and decree of trial Court and other filed by Muhammad Jan against the same judgment and decree and the 3 appeal which was filed by Maraj ul Alam against interlocutory order passed by learned trial Court in his suit No.103/1 which he filed against the present petitioner , claiming therein that the property which was recorded in the name of present petitioner in the revenue record was indeed the property owned by their predecessor Pir Alam and as such both are entitled to the same property in accordance with their shares . The reasons prevailed before learned appellate Court were that:-
(1) The plaintiff has not included the whole inherited property in the suit.rd
(2) The inheritance mutation of the predecessor of the parties has not so far attested.
(3) The learned trial Court without discussing the evidence of plaintif f shifted the burden of proof to the defendants to establish his purchase, and
(4) Maraj ul Alam had filed a separate suit against the plaintiff wherein a similarly relief was claimed.
10. The power and discretion of the learne d appellate Court to remand the case has been provided under Order 41 Rules 23 to 25 of Civil Procedure Code. For ease reference the same are reproduced below:- "23. Remand of case by Appellate Court. Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reserved in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and procee d to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
24. Where evidence on record sufficient, Appellate court may determine case finally .--Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary , finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.
25. Where appellate court may frame issues and refer them for trial to Court whose decree appealed from.--Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary , frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the addition al evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellat e Court together with its findings thereon and the reasons therefor . "
11. The power to remand the case thus could not be exercised lightly but the learned appellate Court while exercising the power to remand the case should examine the evidence and if it comes to the conclusion that it is not sufficient to pronounce the judgment or decide the issue between the parties then it can remand the case or may itself record evidence if so required and decide the case. Fateh All Vs. Fir Muhammad and another 1975 SCMR 221, Sher Muhammad and others Vs Jamadar Ghulam Ghous 1983 SCMR 133, Arshad Ameen Vs. Messrs Swiss Bakery and others 1993 SCMR 216, Sved Abdul Hakim and others Vs. Ghulam Mohiuddin PLD 1994 SC 52 Ashiq All and others Vs. Mst. Zamir Fatima and others PLD 2004 Supreme Court 10 and Rehman Shah and others Vs. Sher Afzal and others 2009 SCMR 462 .
12. Now moving to moot question as to whether grounds which prevailed before learned appellate Court for remand of the case was legally justified and the case could not be decided on the available record. Needless to mention that learned appellate Court did not point out that which fact remained undetermined at trial, which was essential for determination of the rights of the parties. The findings of learned appellate Court that the entire property of the deceased has not been included in the suit property are also based on no evidence. The learned appellate Court did not mention that as to which of the property of the predecessor of the parties was not included in the suit. Even otherwise if the plaintiff had omitted to include a portion of the property to which the cause of action relates and on same cause of action the suit was brought then obviously it is the plaintiff who will face the consequences of being precluded to bring a fresh suit on the same cause of action but the same is nevertheless a ground to remand the case. As far as pendency of suit No.103/1 filed by Maraj ul Alam altogether relates to a different subject matter and can independently be decided on the evidence which would be produced before the learned trial Court. The learned counsel representing the respondents could not refer to any issue justifying remand of the case to the learned trial Court. Indeed evidence on -the record is sufficient for pronouncement of judgment.
13. In view of the above, the judgment and decree passed by learned appellate Court is not sustainable in the eyes of law, which is accordingly set aside, therefore, the case is remanded back to the learned appellate Court to decide the appeal on the available record. This being an old case, therefore, learned appellate Court is expected to decide the appeal within a period of two months from receipt of the judgment of this Court.