ZULFIQAR AHMAD KHAN, J.---This revision was preferred against judgment and decree of the appellate Court, which decreed the suit filed by the respondent and set-aside the, judgment and decree of the trial Court, which dismissed the above suit with costs.
2. The litigation between the parties commenced by filing Civil Suit No,19 of 1966, for Specific Performance of Contract, by Molvi Muhammad Suleman against Muhammad Zakaria, Mst. Zuhara Begum and Afsoon Ghulamullah stating therein that defendant No,1 sold out land admeasuring 13 acres 18 Ghuntas out of Survey Nos,37, 38. 163-A and 163-B, Deh Shah Grah Taluka Sehw. an for himself and on behalf of defendants Nos,2 and 3 by executing sale agreement dated 01.10.1965 to the tune of Rs.3425/- against token amount of Rs.425/- while remaining sale consideration was to be paid at the time of registration of sale deed. It was further case of the plaintiff that after execution of the sale deed, record of rights will be changed in favour of the plaintiff but despite many approaches, defendant No,1 neither execute sale deed nor received remaining balance amount, which aggrieved the plaintiff to file the instant suit.
3. The said suit was decided ex-parte against owners of the land (husband/wife) Muhammad Zakaria, Mst. Zuhara Begum and Afsoon Ghulamullah whereas Muhammad Zakaria admitted the claim of the plaintiff and suit was decreed by judgment dated 30.11.1966. In pursuance thereof, the beneficiaries were put in possession and a sale deed was registered through Court as well as subsequent mutations were also affected. Claiming to be oblivious of the said transaction, respondents filed the Civil Suit No,17 of 1969 against number of defendants including present applicants' predecessor in interest for Possession, Injunction and Mesne Profit of the agricultural land subject matter of Survey Nos,37 and 38 on the ground that they have purchased the said agricultural land along with some other land from the husband of landlady Mst. Zuhara Begum through a registered sale deed. The said suit was contested by the present applicants, who were put into possession of the land in question through operation of judgment rendered in Suit No,19 of 1966.
4. After hearing the parties, said suit was dismissed vide judgment dated 12.01.1972, against which an appeal was preferred, which was allowed, against which a revision was preferred before this Court, which remanded the case to the appellate Court. The appellate Court in the second round again allowed the appeal, against which a revision was preferred which was dismissed, which led the applicants to file appeal before Honourable Supreme Court of Pakistan being Civil Appeal No,1641 of 2006, which was allowed with the following observations:-- "We have heard learned counsel for the parties at great length. The appellant's claim appears to be founded upon Section 53-A of the Transfer of the Property Act and it was necessary for him to prove that he was in possession of the property in question by way of part performance of the contract. Likewise the respondents could only avoid the consequences of the above provision by establishing that they had no notice of the owners contract with the appellate or the part performance thereof. Unfortunately neither an issue to the said effect was framed nor precise evidence has been laid by either party before the trial Court. This question also appears to have escaped the attention of the appellate Court and the Honourable High Court. For the above reasons we would allow this appeal and set-aside the impugned orders of the; High Court and the first appellate Court and as jointly suggested by both the learned counsel remand the matter to the District Judge, Dadu who may either record evidence after framing issues in the above terms and record evidence either himself or refer it to any Additional District Judge for doing so.
Thereafter the Court may decide the matter in accordance with the law. Since the matter is very old, we expect that it may be decided within six months. Both the learned counsel agree that they would assistant the Court by securing presence of relevant witnesses at the date of hearing".
5. The matter having been so remanded, was decided by appellate Court through judgment dated 27.09.2013 by allowing the appeal, thus, decreed the suit filed by the respondent's predecessor against the said judgment and decree, the instant revision is filed.
6. Learned counsel for the applicants minutely went through the various judgments hunched this Court's attention to the Apex Court's judgment referred above where the appellate Court directed to frame issue as to the effect of possession of the land under Section 53(A) of Transfer of Property Act as the applicants claimed to be in possession of the land in question. The Apex Court opined that an issue to this effect had to be framed by the appellate Court which after hearing the evidence was to decide this issue.
7. Learned counsel by going through relevant paragraph of the impugned judgment contended that the appellate Court did not frame any issue as mandated by the Apex Courts, therefore, the matter be remanded to appellate Court for hearing and deciding a fresh in the light of Apex's Court directions. Counsel also submitted that no point for determination was framed by the appellate Court which is clear violation of the Order XLI, Rule 31, thus even on this account alone the appellate Court's judgment is not maintainable. In support of his contention, counsel placed reliance at PLD 2015 Sindh 454, 2015 CLC 603, PLD 2002 SC 702, PLD 2001 SC 201 and 2010 SCM R 1066.
8. Learned counsel for the respondent submitted that the respondent bought four survey numbers out of which there was dispute with regard to two survey numbers. Counsel further submitted that in the first case being Suit No,90 of 1966, no evidence was adduced before the trial Court and the suit was decreed purely on the statement of defendant No,1, who claimed to be attorney of the Mst.
Zuhara the owner of the land in question. He submitted that his client bought the property from the husband of Mst. Zuhara who in his statement denied any knowledge of his wife appointing Muhammad Zakaria as attorney. He further submitted that there are three judgments in favour of the respondents whereas only one is in favour of the applicants, therefore, benefit be given to them in the light of judgment of Apex Court. In support of his contention, counsel relied 2008 SCM R 398 and 2008 CLD 524 with regard to the lack of point of determination and lastly contended that point of determination is not necessary while deciding the appeal.
9. Heard the counsel and perused the material available on record.
10. As evident from the above, the battle for possession of the land was commenced in the year 1966 in the name of Mst. Zohara has not been decided despite taking number of turns to the extent having been remanded back from the Apex Court once. It is also an admitted fact that original land lady Mst. Zohara never appeared nor filed any statement. Once in Suit No,19 of 1966 it is alleged that Mst. Zohara appointed Muhammad Zakaria to sell the land whereas in Suit No,17 of 1969, it is stated that she has appointed her husband to sell the land in question. While in first case, both husband and wife were declared ex parte and in the other case, only husband appeared and supported the contention that he has sold the land to the respondent. Interestingly none of the Courts bother to bring the attesting witness in the Witness Box. Thus, the version of the original owner Mst. Zohara Begum remained buried. A material fact is that the Apex Court vide judgment dated 22.01.2009 directed the appellate Court to frame an issue regarding Section 53(A) of Transfer of Property Act, which clearly has not been framed by the appellate Court as it only dilated upon the issues originally framed by the trial Court being issues Nos,1 to 7, which are reprrduced as under:--
(1) Whether the plaintiff is the owner of the suit land?
(2) Whether the defendants have un-authorisedly transferred and occupied the S.Nos,37 and 38, the property of the plaintiff?
(3)Whether the defendants are the owners of the suit land?
(4) Whether the suit is not in the proper form?
(5) Whether the suit is insufficiently stamped?
(6) Whether the plaintiff has any cause of action?
(7) What should the decree be?
11. A perusal of the above, clearly shows that the Apex Court's order has not been followed by the appellate Court in letter and spirit.
12. In the given circumstances, I am of the view that the matter be remanded to the appellate Court, who to frame the issue as per directions of the Apex Court and render the judgment on the said issue after hearing the parties and considering the evidence brought forward on that issue preferably within 90 days.
13. Consequently, this revision is allowed and judgment of the appellate court is set aside and the matter is remanded to the appellate court with directions to decide as discussed above on the specific issue to be framed as per the directions of the Apex court.