AHMAD NADEEM ARSHAD, J. Through this constitutional petition, the petitioners assailed the vires of orders dated 24.09.201 1 and dated 20.06.2012, whereby , their application for framing of additional issues and permission to produce copy of mutation No. 545 dated 17.03.1953 of Mouza Sumra-Thal Kalan was dismissed concurrently .
2. Relevant facts forming the background of this petition are that petitioners instituted a suit for declaration and permanent injunction on 17.09.2002. Respondents filed contesting written statement. The learned trial Court, keeping in view divergent pleadings of the parties, framed necessary issues as follows: -
1. Whether the impugned mutation No.1187 dated 05.01.1983, order passed by A.C.(R) dated 27.4.97 and order of MBR dated 05.9.02 are illegal, void, against law and facts, ineffective upon the rights of the plaintiffs and are liable to be set-aside?OPP .
2. Whether the plaintiffs are entitled to a decree of declaration as prayed for?OPP .
3. Whether the plaintiffs have no cause of action?OPD.
4. Whether the suit is time barred?OPD.
5. Whether the suit is not maintainable in its present form?OPD.
6. Whether the suit is bad due to non-joinder and mis-joinder of necessary parties?OPD.
7. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction?OPD.
8. Whether the suit is false and frivolous and is liable to be dismissed with costs?OPD.
9. Relief. and invited the parties to produce their respective evidence. After recording evidence of the parties, pro and contra, oral as well as documentary , fixed the case for final arguments. At this stage, the petitioners moved an application on 19.09.201 1 for framing of additional issue and seeking permission to produce mutation No.545 dated 17.03.1953. Respondents filed its contesting written reply . The learned trial Court, after hearing the arguments dismissed the application vide order dated 24.09.201 1 in the following manner: - "It is evident that in paragraph No.8 of the plaint, it is mentioned that Nazir Begum purchased land through registered sale deed No.146. The said land was "Adna" in status. The said land was exempted from deduction of land. But the issue in this respect has not been framed. It is necessary to point out that as per pleadings of the parties, my learned predecessor framed issued on 24.07.2004. Thereafter , the parties were directed to adduce their respective evidence. The plaintiff adduced their evidence oral as well as documentary and matter was adjourned for evidence of defendants. That the defendant No.6 & 8 to 12 got produced their oral as well as documentary evidence and matter was fixed for final arguments. At this stage, plaintiff instituted the present application. In case the application in hand is allowed, the plaintiffs will have to produce evidence in order to discharge the onus to newly framed issue which amounts to facilitate the plaintiffs to fulfil their lacunas in their suit as well as in evidence; whereas law does not require to facilitate the parties to fulfill the lacunas. Therefore, application in hand carries no weight in the eyes of law; hence, the same stands dismissed accordingly ."
Feeling aggrieved, petitioners filed revision petition against said order which also met the same fate and dismissed by the learned revisional Court vide judgment/order dated 20.06.2012 in the following manner: - "It is pertinent to mention here that issue s were framed keeping the contradictory pleading of the parties in view and both the parties were directed to adduce their evidence in respect of their respective contentions and the petitioners/plaintiffs produced their oral and documentary evidence in the support of their version and then the case was fixed for the evidence of the respondents/ defendants and some of the defendants/respondents also produced the evidence and now the present application has been filed by the petitioners/plaintiffs. In case of framing of additional issue, as desired by the petitioners/plaintiffs, it will amount to re-open the matter and then the petitioners/plaintiffs will get the opportunity to produce fresh evidence in this regard. I am of the view that all the facts were in the knowledge of the petitioners/plaintiffs at the time of filing the suit and they themselves produced the evidence in the support of their conte ntion having opportunities in this regard and at this stage, they cannot be allowed to fulfill the lacunas of their evidence already produced. The petitioners/plaintiffs can argue on this point during the course of arguments. I am of the view that the learned trial Court has rightly dismissed the application for framing of issues, without committing any illegality and irregularity . This revision has no force and the same is dismissed."
Being dissatisfied, the petitioners filed instant writ petition, which was dismissed for non-prosecution vide order dated 23.11.2021. Petitioners moved an application (C.M. No.9295 of 2021) for its restoration. Today , learned counsel appearing on behalf of contesting respondents states that since the matter is very old, therefore, he has no objection upon acceptance of restoration application if learned counsel for the petitioners argues the main writ petition to which latter agreed. So in the light of conceding statement of learned counsel representing all the contesting respondents, CM is allowed and main petition is restored.
3. I have considered the submissions made by the learned counsel for the partie s at full length and perused the record with their able assistance.
4. The petitioners maintained in their suit that originally the suit land was owned by Qazi Abdul Rehman being local owner and he sold out the land measuring 2400 kanals situated in Mauza Sher-Garh in favour of Nazir Begum vide registered sale deed No.146 dated 12.06.1952 followed by mutation No.671 dated 10.05.1953 whereby , the whole purchased land was transferred in the name of vendee. Subsequently , mutation No.1187 was entered and sanctioned on 05.06.1963 whereby , instead of 2400 kanals , land measuring 1868 kanals 14 Marlas was transferred in the name of Nazir Begum vendee by reducing her ownership due to cut formula-enshrined in paragraph No.4 of the Press-note issued in the year 1952 by the Governor of Punjab at that time. Mst. Nazir Begum further purchased land measuring 600 kanals in Mouza Sumra-Thal from said Qazi Abdul Rehman, local owner through registered sale deed No.354 dated 17.05.1952. Qazi Abdul Rehman sold out the land through registered sale deed as "Adna Malkiat" but again mutation No.233 was sanctioned on 17.06.1992 in favour of Mst. Nazir Begum vendee by applying formula of cut. Mst. Nazir Begum was owner of land measuring 3000 kanals purchased from Qazi Abdul Rehman through two different registered sale deeds which was alienated to Mst. Munawar Sultana d/o Muzaf far Ali Shah wife of Syed Zafar-ul-Hassan Jaffri. After her death, her inheritance mutation No.235 was sanctioned in favour of petitioners/plaintif fs. By narrating said facts, petitioners pleaded in their plaint that Mst. Nazir Begum purchased land "Adna Malkiat" through sale deed No.146 and also purchased land measuring 600 kanals through registered sale deed No.354 as "Adna Malkiat" and said "Adna Malkiat" of Mst. Nazir Begum was exempted from cut formula enshrined in paragraph No.4 of the press note during the year 1952 by the Governor of Punjab.
According to press-note and Section 21(2) of The Thal Development Act, 1949 (amended 1955) land of "Adna Malkiat" was adjusted without any deduction as Qazi Abdul Rehman transferred rights of "Adna Malkiat" to Mst.
Nazir Begum therefore, said Mst. Nazir Begum was entitled for transfer of the whole purchased land. According to Thal Development Authority Rules if the land is "Adna Malkiat" formula of cut would not be applicable and at the time of determination of right of return (Haq Wapasi) the land is returned to original owner in toto without making any deduction. Petitioners specifically pleaded said facts in Paragraphs No.8 and 10 of the plaint. The respondents in their respective written statements while denying said facts maintained that Mst. Nazir Begum vendee did not purchase land of "Adna Malkiat" but said land was part of Shamlat khatta , therefore, according to notification/award Mst. Nazir Begum was bound for the formula of cut and land was rightly deducted from her ownership. In presence of such controversy , petitioners pleaded that proper issue with regard to said controversy i.e. "whether the disputed land purchased by Nazir Begum vendor of plaintif fs is "Adna Malkiat" and they are full proprietors thereof" is relevant and necessary issue which the learned trial Court failed to frame and prayed for framing of the said issue.
5. Before further discussion, it is better to define "Aala Malik and Adna Malik" and "Aala Malkiat and Adna Malkiat".
Sir Jamas Duie' s Settlement Manual defines in paragraph No.143 "where the proprietary right is divided the superior owner is known in settlement literature as "Aala Malik" or "Talukdar" and the inferior owner as "Adna Malik". The local names given to these tenures are not uniform. Thus, in the Cis-Sutlaj tract the superior owner is called biswadar , and the inferior "Zamindar" . In the south-western Punjab the latter title is appropriated by the superior owner , and the inferior proprietor is commonly described as Chakdar ". Paragraph No.144 then lies down that the usual policy of the Government has been to arrive at a settlement with the inferior 's proprietors apparently with the intention of eliminating intermed iate interest. The old possessors who were known as Zamindars and Makaddims , and in modern official language Malikan Aala and Talukdars . The settler , formerly called Riaya and Chakdars, and now generally Maliakn Adna. The Chakdar was so called from the wooden frame on which the masonry cylinder of a wall is built. The name was meant to express that the 'Chakdar ' had acquired his rights in the land by his having sunk the wall. For this reason he was also called the "Silkdar" or owner of the bricks of the wall.
An essential condition, therefore, for qualifying as an "Adna Maalak" is in possession of an interest in the soil, and not merely in irrigation facilities provided by the party concerned. Paragraph No.168 described inferior proprietors or Chakdars by stating that "the settlers introduced by the State, or by the Zamindar himself, into a Zamindar's village, are known as Chakdars. The name is also applied to those proprietors of the Zamindar' s tribe who have continued to pay the hakk zamindari or mukaddimi to their chief or chief 's family , and it is some-times even extended to settlers who have sunk wells under direct permission, of the State in tracts where there has never been any one to claim a Zamindari due. Thus when Diwan Sawan Mal made his new canal, the Diwanwah through the Mailsi bar, he gave direct grants to settlers, proclaiming at the same time that if anyone could establish a claim to Zamindari it should be allowed; no such claim was established, but still the settlers were generally described as Chakdars . The supposed connection of the name with the wood- work of the well and the payment of the Zamindari gave rise to the idea that the Chakdar owned the well only; in fact that he was a capitalist who had sunk a well for the Zamindar who remained the true owner of the soil, and could buy out the Chakdar on repaying him the money expended. This idea was still further encouraged by the fact that the Chakdar , sometimes did not cultivate himself, but let his well to tenants, and it occasionally happened that the tenant was one of the old Zamindars . There was consequently rather a tendency at the commencement of our summary settlements of regard the Chakdar as an interloper who, by the power of money , was ousting the old family from its original rights. But this was quite a mistake: the Chakdar whether he got his title from the Zamindar direct or through the State, always held his land in full proprietary right, subject only to the payment of a quit rent in the shape of the hakk Zamindari . Of course if he abandoned his land it reverted to Zamindar , but this was because the latter was the owner of all the waste land and not in virtue of any contract entered into at the time of purchase. On the other hand any right of cultivation enjoyed by the Zamindar was acquired by a distinct contract between him as tenant on the one side and the Chakdar as proprietor on the other; the terms of the contract might vary from that of a tenancy-at-will on a full rent to that of a permanent occupancy on a quit rent, but the original rights of the Zamindar in no way influenced his position as tenant". Paragraph No.169 elaborates the respective rights of superior owners and of Chakdars by stating that "the superior proprietors claimed to be owners of all un-appropriated land. The Malikan Adna are full proprietors of the land in their possession subject to the payment of the share of the old proprietors and not liable to eviction on failure to pay it and are entitled to introduce tenants without reference to the superior proprietors. The superior proprietors, as such, have no right to interfere in the management of the cultivation of the appropriated land of the village. The settlement has in no case been made with them, except where they are also inferior proprietors. Their rights are restricted to receiving their fee in grain or cash and to disposing of their un-appropriated waste in the village."
The Digest of Customary Law in the Punjab by Rattigan also defines distinction between "Malik Aala" and "Malik Adna". Paragraph 139 of Rattigan states that "a distinction may be drawn between superior (Malik Aala) and inferior (Malik Adna) proprietors, the former simply levying a sort of customary rent from the latter , who actually occupy the soil, either cultivating themselves or through tenants." Paragraph 142 of the same Digest defines a Chakdar as one who occupies an intermediate position between the proprietor and cultivator , possessing inheritable and transferable property in wells constructed by him, and cultivating the land attached thereto either himself or by his own cultivators. He is usually responsible for the revenue, and the proprietor is only entitled to a fixed cash allowance, locally called a Lichor Haq Kasoor . Generally a 16th or 17th and he alone is entitled to repair the well or to replace it by a new well."
Paragraph 22 of Martial Law Regulation 64 of 1959 provided that "Aala Milqiat and similar other interests subsisting immediately before the commencement of this Regulation, shall, on such commencement, stand abolished, and no compensation shall be claimed by, or paid to, any person effected by the abolition." On the 3rd of March 1960, the West Pakistan Land Commission issued a notification, in exercise of the powers conferred by paragraph 4(5) of the Regulation, laying down that Adna Maliks shall be made full proprietors of the land held by them as such, and that with effect from Rabi 1959-60 they shall discontinue the payment of rent or other dues in cash or kind to Aala Maliks . In clause (c) of rule 6 of this notification it was stated that "a person who engaged with Government to pay land revenue shall be treated as Adna Malik or Aala-cum-Adna Malik and considered full proprietor ." The effect of this notification, read with the substantive Paragraph 22 of the Regulation, appear s to be that the payment of land revenue to the Government was a necessary qualification for being regarded as an Adna Malik. For reference "Makhdoom MUHAMMAD AHSAN versus P ATHANA and 21 others" (PLD 1975 Supreme Court 369).
6. The framing of issues is one of the most important stage of the trial. On the basis of material, the Court is to frame issues in respect of those material propositions of facts or law alleged by one party and denied or not admitted by the other party . Material propositions are those which the plaintif f must alleged to show right to sue or a defendant in order to constitute his defence. Separate issues are to be framed for each material proposition in dispute. It is the duty of the Judge himself to frame proper issues, so that the parties may know the controversy .
The object of framing of issue is to ascertain the real dispute between the parties by narrowing down the area of conflict and determining where the parties differ. The power of a Court in relation to framing, striking out and amending issues is provided under Order XIV Rule 5 C.P .C. which reads as under: - "5. Power to amend, and strike out issues: -(1) The court may at any time befor e passing a decree amend the issues or frame additional issues on such terms as it think fit, and all such amendm ents or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.
(2) The Court may also, at any time before passing a decree, strike out any issue that appear to it to be wrongly framed or introduced."
The later part of Rule 5 makes mandato ry upon the Court to make or framed issue necessary for determining matters in controversy between the parties. The power vested in a Court under Rule 5 can be exercised at any stage prior to the final disposal of the case. Even the appellate Court can exercise power under order XIV Rule 5 C.P.C. where the case cannot be disposed of on the basis of issues as already framed. Although it was the duty of the parties to point out framing of necessary issues, yet the Court was, equally bound to frame correct issues, which are necessary for determination of real controversy between the parties. Merely because the parties had not pointed out such issue, Court was not absolved from performing its legal and statutory duty. Action or inaction on the part of the Court could not prejud ice a party to litigation. Even if a point not raised in the pleadings, nonetheless, it would come to the notice of the Court during the course of evidence Court could frame issue in this regard, in order to resolve the controversy between the parties. The august Supreme Court of Pakistan in a case titled as "Mst. Sughran Bibi and others v. Mst. Jameela Begum, and others" (2001 SCMR 722) observed as under: - "We are afraid, the argument in the facts and circumstances of this case has no force. No doubt, parties in the suit are entitled to make application for amendment of issues, but the fact remains that preliminary it is the duty of the court to frame the issues correctly so that the same should reflect correctly controv ersies arising from the pleadings of the parties so that effective judgment could be rendered on the disputed facts and the parties should know as to on what facts the evidence was to be led, therefore, the act of the Court in the case of not framing issues correctly and debarring the petitioner from leading evidence to prove his case as made out in the pleadings was rightly corrected by framing issue No.5 and sending the case for production of evidence."
The august Supreme Court of Pakistan in a case "Mst. RASHEEDA BIBI and others versus MUKHT AR AHMAD and others" ( 2008 SCMR 1384 ) held as under: - "It is the duty of the Court to frame correct issues but the parties were also under duty to make application for amendment of issues. Nevertheless, the Court was bound to frame issue correctly preliminary on pleadings of the parties, because the issues framed by the court correctly reflects the controversies arising from the pleadings of the parties and the Court thus can render an effective judgment on the disputed facts and the parties also knows on what facts the evidence should be led. Reference is made to the case of "Roazi Khan and others v. Nasir and others" (1997 SCMR 1849 ), Mst Sughran Bibi and others v. Mst. Jameela Begum and other (2001 SCMR 772). In case of Ananta Kumar majumdar and others v. Gopal Chandra Majumdar and tohers PLD 1961 Dacca 65, it has been held that plea of framing of a particular issue was not pressed by the parties effected is no ground for condoning failure to frame necessary issue and the mandate of order XIV Rule 1 CPC reveals that it is incumbent upon the Court to frame issues in the light of controversies raised in the pleadings and after examination of the parties, if necessary . Issues of law and facts are to be illustrated clearly to enable the parties to understand the points at issue to support their respe ctive claims by recording evidence on all material points. It is the settled principle of law that action or inaction on the part of the Court cannot prejudice a party to litigation and the failure of the Courts below to determine materia l issue amounted to exercise of jurisdiction illegally or with material irregularity ."
7. The petitioners specifically raised material proposition of facts and law in paragraph No.8 & 10 of their plaint which was denied by the respondents in their written statements. Said controversy should be formulated in shape of specific issue in order to conclude the rights of the parties. The already framed issues do not cover such controversy . The learned Courts below failed to exercise their jurisdiction correctly and the failure of the Courts below to determine material issues amounted to exercise of jurisdiction illega lly or with material irregularity .
Therefore, the impugned orders are not sustainable in the eye of law and liable to be struck down.
8. The petitioners also sought permission for production of mutation No.545 dated 17.03.1953 of Mouza Sumra- Thal by stating that the same could not be traced out inspite of making all hectic efforts and its production is essential for just decision of the case. Both the Courts below failed to consider this part of the application while rendering its judgments/orders which also make the impugned judgments/orders nullity in the eye of law .
9. The case law referred to by the learned counsel for the respondents are totally irrelevant to the facts and circumstances of the instant case, hence, not applicable.
10. Epitome of above discussion is that the instant writ petition is allowed, judgments/orders of the learned Courts below are hereby set-aside . Resultantly , the application of the petitioners for framing of additional issues and production of mutation No. 545 dated 17.03.1953 of Mouza Sumra-Thal is allowed with a direction to the learned trial Court to frame correct and proper issues in the light of controversy pleaded by the petitioners in paras No.8 & 10 of their plaint and then decide the lis after observing all codal formalities in acco rdance with law. Parties are left to bear their own costs.