AMIN-UD-DIN KHAN, J.---Through this appeal filed under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973, the appellants have challenged the judgment and decree dated 05.10.2009 passed by the Lahore High Court, Lahore whereby Civil Revision No.512-D of 2004 filed by the respondents was allowed.
2. We have heard learned counsel for the parties at length.
3. A suit for declaration and possession was filed by the respondents on 27.05.1997 being the collaterals of Subedar Ghulam Haider son of Rasool Khan the original tenant of the State land allotted under section 10 of the Colonization of Government Lands (Punjab) Act, 1912. Facts in detail are mentioned in the judgments of all the three fora below, therefore, need not to be noted again here in detail but we note the necessary relevant facts for determination of the matter in issue before us. It is pleaded that Ghulam Haider was having two daughters namely Deeran Jan and Pari Jan from Mst. Duran Bibi and no issue from her second wife Mst. Ghulam Fatima, as there was no male issue of Ghulam Haider, therefore, under the custom he was survived by his two widows namely Mst. Duran Bibi and Mst. Ghulam Fatima through mutation No. 104 attested on 21.12.1943 after his death under custom. The mutation was in favour of two widows in equal shares till death or re-marriage. Mst. Duran Bibi died on 06.01.1961 and her share was mutated in favour of her two daughters on the same terms vide mutation No. 27 attested on 21.5.1961. It was pleaded that a limited estate was terminated on the promulgation of the Muslim Personal Law (Shariat) Act, 1962 and succession of said estate opened, therefore, plaintiffs and defendants Nos.
5 to 56 being collaterals were entitled to inherit residue after adjusting 1/16 share of Mst. Ghulam Fatima. The cause of action was pleaded two months before filing of the suit when proprietary rights were conferred upon Mst.
Ghulam Fatima through mutation No. 515 attested on 31.3.1997. The sale during the pendency of the suit through mutation No. 521 attested on 2.6.1997 was also challenged in favour of defendants Nos. 3 and 4. The suit was dismissed by the learned trial court vide judgment and decree dated 2.7.2002. Appeal was preferred which too was dismissed vide judgment and decree dated 27.5.2003. Civil Revision filed by the plaintiffs-petitioners was allowed by the Lahore High Court. Hence, this appeal by the purchasers of the suit land during the pendency of the suit.
4. Learned counsel for the appellants argues that the purchasers have a right to contest the matter on merits as the suit was collusive one. Further as the issue of bona fide purchaser was not framed, therefore, he has moved an application that two material issues have not been framed which prejudiced the case of the appellants. While relying upon "Mushtaq Ahmad alias Mushtaq Hussain and 8 others v. Mst. Hakim Bibi and 5 others" (PLD 1969 Supreme Court 338) and "Ham Din v. Muhammad Din" (PLD 1964 Supreme Court 842) argues that Ghulam Fatima was the full owner, therefore, the judgment and decree passed by the Lahore High Court is not sustainable under the law. Learned counsel states that even he has denied the relationship of the plaintiffs with the deceased Subedar Ghulam Haider and plaintiffs have not proved the relationship.
5. On the other hand, learned counsel for the respondents states that the judgment of the Lahore High Court is not only in accordance with section 30-A of the Colonization of Government Lands (Punjab) Act, 1912, it is also in accordance with the law declared by this Court, specially refers "Mst. Began v. Mst. Bai" (1983 SCMR 80) to state that both the above mentioned judgments relied by the learned counsel for the appellants have been considered in Mst. Began case supra, therefore, prays for dismissal of the appeal.
6. We have considered the arguments advanced by the learned counsel for the parties. The relationship of plaintiffs with Subedar Ghulam Haider was not denied even by defendant No. 2 Mst. Ghulam Fatima widow of Subedar Ghulam Haider. Appellants being third party failed to establish that the plaintiffs as well as defendants Nos. 5 to 56 are not the legal heirs of Ghulam Haider as they were required to produce very strong, direct and convincing evidence to deny the relationship of the plaintiffs with the propositus. So far as framing of specific issues in accordance with the pleadings of the parties or non-framing of any issue is concerned, we have already declared that framing or non-framing of issue cannot be a ground for reversing the judgment and decree of any court and party cannot pray for remand of the matter at later stage on the basis that any issue which was required in accordance with the pleadings of the parties was not framed. We are of the view that the evidence of the parties is to be led in accordance with the pleadings. It is not a legal defect if any specific issue is not framed and party claiming that issue do not agitate the matter for decades and if the language of existing issues is not in accordance with the wishes of any of the parties. We have seen that the issues already framed, specially Issue No. 8 was with regard to the purchase by the appellants and in rebuttal thereof they were having full opportunity to produce their evidence. We are of the view that a pleading is ever in the mind of a party and the party has to prove the case pleaded by it through oral as well as documentary evidence, therefore, framing of any specific issue or non-framing thereof does not prejudice the case of the party in any manner unless the party claiming a fresh issue had raised his voice at the time of framing of issues and claiming specific prejudice for non-framing of the issue and prima-facie its claim is borne out from the record and in the upper fora the party vas continuously raising this issue. The position is otherwise in the matter in hand. First time before this Court framing of two issues without any specification has been claimed. This claim is not sustainable in any manner before us. So far as reliance of the learned counsel for the appellants on the law declared by this Court in "Mushtaq Ahmad alias Mushtaq Hussain and 8 others v. Mst. Hakim Bibi and 5 others" (PLD 1969 Supreme Court 338) and "Ham Din v. Muhammad Din" (PLD 1964 Supreme Court 842) is concerned, same is also misconceived as the matter of conferment of proprietary rights in both the cases was before the incorporation of section 30-A in the Colonization of Government Lands (Punjab) Act, 1912 as in both the cases after sanction of mutation of tenancy rights as limited owner the full rights of transfer of corpus of land too was before the incorporation of section 30-A in the Colonization of Government Lands (Punjab) Act, 1912. Admittedly, section 30-A was incorporated in the Colonization of Government Lands (Punjab) Act, 1912 in 1944, therefore, the law relied by the learned counsel for the appellants is neither applicable nor helpful for the appellants against which the reliance of learned counsel for the respondents on Mst. Began's case supra is concerned, in the said case both the above said judgments were considered. We quote its relevant portion for ready reference: "Keeping in view the trend of authority by this Court in the aforequoted decisions and in the light of the afore-going discussion, it has to be held that the estate held under section 30-A(1) by a female is in reality a limited estate held under custom. That being so, the provisions of section 3 of West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962, would be attracted. The limited estate held by Mst. Bai, as found above was governed by the said law. It having been terminated, she was entitled to hold only her share under Muslim Law of Inheritance.
Sadoo having died issueless, she was given 1/4th share. Therefore, as she could not be given more than that, her suit merited dismissal."
7. In this view of the matter, learned counsel for the appellants failed to show us any defect in the judgment passed by the High Court, therefore, we have no reason to disagree with the impugned judgment. This appeal is, therefore, dismissed leaving the parties to bear their own costs.
8. Above are the reasons of our short order of even date, which is reproduced below: "For reasons to be recorded separately, we do not find any merit in this appeal. It is accordingly dismissed."