MOHAMMAP IBRAHIM KHAN, J. Impugned herein is the judgment and decree dated 28.01.2014 passed by the learned Civil Judge-XL, Kohat, further assailed in appeal before the Additional District Judge-V, Kohat vide its judgment dated 14.11.2016 with a prayer for setting aside of the same and suit of the respondents, pertaining to the prayer for obtaining declaration/permanent and temporary injunction along with prayer for possession of the property, as mentioned in the head note of the plaint, requires dismissal in view of the grounds taken in this petition.
2. Having heard the arguments at certain length, it is as pointed that on the basis of pleadings of the parties the learned trial court has framed the following issues:- 1) Whether plaintiff has got cause of action?
2) Whether this court has got jurisdiction to entertain the suit?
3) Whether the suit is liable to be dismissed for non-joinder?
4) Whether litigation in respect of the same subject matter is pending between plaintiff and defendants Nos. 3 and 4?
5) Whether defendant No.5 has sold out excessive land to the defendants than that he was actually entitled? If yes, its effect?
6) Relief.
3. It is as observed that the learned trial court has not framed the above issues in accordance with the perspective prayers in the plaint and in the written statement, thus, the same require to be re- framed, which are as under: - 1) Whether the plaintiff has cause of action? OPD 2) Whether the suit is within time? OPD 3) Whether the suit is false and without foundation, therefore, liable for dismissal? OPD 4) Whether the suit is competent in its present form? OPD 5) Whether the civil court has jurisdiction in the matter to entertain the suit for the prayers as mentioned in the plaint? OPD 6) Whether the suit is bad for non-joinder of the necessary parties? OPD Whether the defendants are entitled to the cost in case the suit of the plaintiff fails? OPD 8) Whether the plaintiff in collusion with defendant No.5 has wrongly sued the defendants Nos.3 and 4 in view of the suit pending in between the defendant No.5 against the defendants Nos.3 and 4, thus, the suit is liable to dismissal? OPD 9) Whether the plaintiff is entitled to the decree for declaration/permanent mandatory injunction and in alternate for possession in view of being owner to the extent of his share? OPP 10) Whether the mutation No. 11441 has wrongly been attested on 28.03.2005 against the rights of the plaintiff? OPP 11) Whether the agreement deed dated 14.11.2005 in favour of defendant No.4 and agreement deed dated 12.03.2007 in favour of defendant No.3 are the result of collusion in between them and are unlawful? OPP 12) Relief.
4. All the issues re-framed are in accordance with the pleadings of the parties, however, issue pertaining to limitation has not been raised in the written statement but as it is legal issue and the plaintiff has to prove if at all entitled to any decree within the ambit of its limitation, therefore, it has been framed by the court.
5. As the issues have been re-framed, therefore, the parties are to be allowed to lead their respective evidence or else even if the parties want to rely on the already recorded evidence, they shall record their statements before the learned trial court to this effect. On acceptance of this revision, the impugned judgments and decrees of the courts below are set-aside and the case is remanded back to the learned trial court to proceed with the matter in accordance with law. The parties are directed to appear before the learned trial court on 15.02.2021. However, the trial be put on speed track for early decision preferably within six (06) months. In case the parties want to rely on the existing evidence, then the learned trial court shall decide the fate of limitation within three
(03) months positively.