' The facts giving rise to this revision are that Gul Baz (petitioner) instituted a suit for possession by pre-emption of agricultural land measuring 24 kanals 17 marlas bearing Khasra No, 37 situate in village Aman Kot Khazrazai, Tehsil Swabi, District Mardan, against Abdul Raziq (respondent). The plaintiff claimed superior right of pre-emption on the ground that he was a contiguous owner of the suit land and also a participator in the immunities. The claim of the plaintiff was denied by the 'endee in the written statement and a superior right of pre-emption was claimed on the ground that he was in possession of the suit land as a tenant. In view of the pleadings of the parties certain issues were framed by the learned trial Court including the one as to whether the plaintiff had a superior right of preemption. However, no issue regarding the right claimed by the vendee on the ground of his tenancy was framed. In view of the evidence produced in the case the learned trial Court decided in favour of the plaintiff on the ground that he was a contiguous owner of the suit land. Abdul Raziq, vendee aggrieved went in, appeal mainly on the ground that no issue regarding his superior right of pre-eruption on the ground of tenancy was framed by the learned lower Court and, therefore, the decision of the case had been prejudiced on merits. The contention raised prevailed with the learned Additional District Judge, Mardan at Swabi. The appeal was, therefore, accepted on 13-2-1983 and the case was remanded after framing an additional issue to the effect "whether, defendant is tenanting the suit property as `Ghair Dakhilkar', if so, its effect?" The trial Court was directed that the case should be decided according to law after recording evidence on the additional issue. The aforesaid order is impugned by the pre-emptor in this revision.
2. In support of the revision it is contended that the issue framed by the trial Court regarding the superior right of pre-emption of the plaintiff was sufficient for giving a decision about the right claimed by the vendee on the ground of his tenancy and there was no necessity of framing an additional issue or recording additional evidence thereon. Reliance is placed on the Province of East Pakistan v. Hassan Askari and others (1) wherein it was observed that if issues are not framed but allegations are made in the plaint and they are challenged in the written statement, it is open to the Court to allow . The parties to lead evidence on such point and to give decision on it without framing any issue. However, it may be mentioned that in the case in hand not only no issue was frame regarding the plea of the vendee there is nothing on the record to show that the parties were allowed to lead evidence on the said point and obviously the case has not been decided according to the pleadings of the parties. In the written statement specific plea of superior right of preemption on the ground of tenancy was taken and it was the duty of the learned trial Court to have framed a specific issue thereon. The duty of framing proper issues arising out of the pleadings of the parties is that of the Court since the parties are required to prove the issues and not the pleadings. It is well-established that distinct and separate issues are to be framed for each material proposition of law or fact raised in the pleadings. The contention that the issue as framed by the trial Court regarding A the superior right of pre-emption of the plaintiff was sufficient to decide upon the plea of the vendee is without any face, for, in the absence of a proper issue the vendee was unable to lead evidence in support of his contention. And perhaps this was the reason that no evidence was ide for or against the said plea. In the judgment of the trial Court there is no mention that the vendee had claimed superior right of pre-emption against the plaintiff on the ground of his tenancy. The averments so made in the written statement were completely ignored by the learned trial Court and it is obvious that this irregularity has affected the decision of the case on merits. It is not disputed that the powers of framing additional issues can be exercised by an appellate Court under Order X1V, rule 5, C. P. C. In the circumstances the appellate Court was fully justified in framing the additional issue and remanding the case for recording additional evidence. However, the order of remand appears to have been erroneously passed under section 151, C. P. C. Inasmuch as there is a specific provision in the Code dealing with such' a situation.
Under Order XLI, rule 25, C. P. C. When it appears to the appellate Court that a particular issue was essential to the right decision of the suit upon merits it could frame an additional issue and refer the same for trial to the Court from whose decree the appeal is preferred for recording additional evidence with a direction that the C trial Court shall proceed to try such issue and return the evidence to the appellate Court together with its finding thereon and the reasons therefor. In view of this specific provision of law the order of remand under section 151, C. P. C. For a fresh decision of the suit was not justified.
3. In this view of the matter there is no force in the revision which is accordingly dismissed with no order as to costs. However, the learned trial Court shall record additional evidence on the additional issue and return the evidence to the appellate Court together with its finding thereon and the reasons therefor.