' This appeal under Order XLIII, rule (1) (U) of the Civil Procedure Code is against the judgment dated 9-3-1981 passed by the Additional District Judge, Quetta in appeal whereby the suit filed by respondent before the Senior Civil Judge 1st Class Quetta has been ordered to be tried on merits.
2. Mir Abdul Ghias son of late Mir Nawab Habibullah Khan Nausherwani, the respondent herein, filed a suit for possession of the Bungalow situate on Sariab Road, Quetta bearing Municipal No, 10-8/26 with quarters, garage, stores, garden having fruit and fruitless trees, enclosed in a compound wall and fitted with electricity and water connections. This suit was filed on or about 20th December, 1972. The relevant paragraphs of the plaint are reproduced :- ' In the Court of the Civil Judge 1st Class Quetta Civil Suit No, of 1972 Mir Abdul Ghias son of late Mir Nawab Habibullah Khan Nausherwani, resident of Kharan at present at Quetta-Plaintiff versus Nawab Mir Ghulam Mustafa Khan, Kharan House, Sariab Road, Quetta-Defendant ' Suit for possession of the bungalow commonly described as Kharan House, situated on Sariab Road, Quetta bearing Municipal No, 10-8,26, with quarters, garage, stores, garden having fruit and fruitless trees enclosed in a compound wall and fitted with electricity and water connections.
' The plaintiff respectfully begs to submit as under :- ' That Messrs Capt. Atta Muhammad, Muhammad Amanullah Khan and Mst. Bibi Mst. Mumtaz Begum, children of late Khan Bahadur Gul Muhammad Khan caste Qureshi, then residents of Sariab Road, Quetta, were the owner of the Bungalow alongwizh land etc. (more fully described in the title) which was purchased from them by the plaintiff under sale-deed registered on 18th July, 1956 with the Sub-Registrar, Quetta Town. The same is entered at Khewat No, 32, Khatoni No, 40, Ward No, 22, Khasra Nos. 879, 881, 882, 883, 884, 885, 886, 887, 888 and 889, consisting of ten pieces measuring in all 88,438 sq. Ft. And the same is bounded as follows :- "East.-Boundary wall of the Bungalow of Sardar Mir Baluch Khan son of Sardar Rustam Khan, Caste Muhammad Hassani and Agha Mir Naseer Khan Ahmedzai son of Mir Sikandar Khan Ahmedzai.
' West.-Raisani Road.
North.-Land of Agha Muhammad Akram Jan Ahmedzai. South.-Land of Haji Lal Khan, deceased.
' The mutation was as well attested in favour of the plaintiff in the Revenue Record on 5th of October, 1956 and the possession of the property was delivered to the plaintiff by the vendors on the registration of the sale-deed in favour of the plaintiff and remained with him thereafter.
2. That on the same date i,e, 16th July, 1956 the vendors named above; children of late Sardar Gul Muhammad Khan also sold to the plaintiff four other pieces of land entered at Khasra Nos. 314, 315.
316 and 323 situate in Mahal Karez Yar Muhammad. Mozah Sirki, Tehsil Quetta, which land adjoins the property described in the last paragraph and got the mutation in respect of the change of ownership in the name of the plaintiff attested in the Revenue Record on 17th July, 1956. The possession of these pieces of land was as well delivered by the vendors to the plaintiff on 17-7-1956 and remained with him thereafter. The property described in the last two paragraphs is also known by the name of Kharan House, Sariab Road, Quetta.
3. That the plaintiff was a minor and his real elder brother Nawabzada Sher Ali Khan was therefore, looking after and managing the said property. He was in possession of the same on behalf of the plaintiff, as the latter was then studying at Kharan.
4. That in the year 1959-60, Nawabzada Sher Ali Khan, the elder brother of the plaintiff, permitted the defendant to temporarily stay in the property in question for a few months on the express undertaking given by the defendant that he would vacate the same and go back to Kharan. The plaintiff on attaining the majority in the year 1968 came to know of the fact referred to last. The defendant when called upon to vacate the same declined to do so.
5. That on eviction application was filed against the defendant in July, 1961 during the minority of the plaintiff. On the finding that the relationship of landlord and tenant does not exist between the parties, the application was dismissed by order dated 16-2-1963.
6. That the plaintiff needs the property in question for his bona fide use and occupation. He has many times requested the defendant to vacate and deliver its vacant possession to him but to no consequence. The defendant has no right or title to remain in possession of the property. The plaintiff therefore, institutes this suit.
7. That previously suit for possession of the property was filed on the 12th of September. 1968 (being Civil Suit No, 6 of 1968 of Court of District Judge, Quetta) the same was allowed to be withdrawn by order dated 9-10-1972 and the plaintiff was permitted to file a fresh suit on the same cause of action.
8. That the cause of action in this suit accrued to the plaintiff against the defendant at Quetta within the jurisdiction of this Court on the refusal of the defendant to hand over the vacant possession of the property in question which refusal of the defendant still persists. This Court on the stated averments is competent to try this suit and grant the relief to him.
9. That the valuation of the subject-matter of the suit for the purposes of jurisdiction and payment of court-fee in the sum of Rs, 51,500 on which sum ad valorem Court-fee Stamp is fixed.
' It is prayed that decree for possession of the property described in paragraphs 1 and 2 of the plaint and it title and commonly known as Kharan house be passed in favor of the plaintiff and against the defendant with costs.
(Sd.) Plaintiff.
Verified on Oath at quetta this Tuesday the 19th of December, 1972 that the contents of paragraphs 1 to 7 are true to my knowledge and the rest to my belief.
(Sd.) Plaintiff.
Drafted by (Sd.)
(Basharatullah)
Advocate Quetta.
' LIST OF DOCUMENTS RELIFF AND FILED
(1) Sale-deed dated 16-7-1956 (Certified copy).
(2) Fard Intakhab Jamabandi. Two certified copies."
3. On an application dated 3-9-1973 filed on behalf of the plaintiff in the Court of the District Judge Quetta praying for the transfer of the suit to the District Judge on 31-10-1973 where on 20-4-1974 the defendant Mir Ghulam Mustafa Khan Nausherwani the predecessor-in-interest of the present appellants, filed the written statement and raised some preliminary objections and contested the suit on merits. Since the pleas raised herein have to be considered in this judgment, the same is also reproduced :- ' In the Court of the District Judge, Quetta.
' Mir Abdul Ghias son of Late Mir Nawab Habib Ullah Khan Nausherwani resident of Kharan at present at Quetta-Plaintiff versus ' Nawab Mir Ghulam Mustafa Khan Nausherwani Kharan House, Sariab Road, Quetta-Defendant.
' Suit for possession of the Bungalow commonly described as Kharan House, situated on Sariab Road, Quetta bearing Municipal No, 19-8/26 with quarters etc. ' Written statement by the above-named defendant. Preliminary objections.--
1. The property in suit was purchased by the Ruler of Kharan viz. Mir Nawab Habib Ullah Khan Nausherwani out of rupees one lac provided to him by the Government for construction or purchase of a bungalow or house only at Quetta for Ruler's personal occupation and residence which the late Nawab Mir Habib Ullah Khan did purchase and thereby the late Nawab named and styled the said property as Kharan House and accordingly informed the Central Government about its purchase. Thus the Kharan House or the property in suit is a property of the Kharan Ruler only and which was purchased by the Central Government's money or Fund. In fact the alleged sale transaction or sale-deed regarding the suit property in the name of the plaintiff is a farce and a Benami transaction. This, the defendant being the present Ruler of the Kharan State recognized by the Government of Pakistan is the only sole proprietor of the suit property which the defendant is in exclusive possession and occupation for the last more than fifteen years or after the death of late Nawab Mir Habib Ullah Khan.
2. That under the provisions contained in the Acceding State (Property) Order No, 12 of 1961, it is the Central Government alone which is competent and has got exclusive powers to decide and determine the property disputes between a Ruler of a State and other heirs or persons. Hence this Court has no jurisdiction to entertain and try the subject-matter.
3. That under the provisions of section 86/87-A and other relevant connected provisions of the Civil Procedure Code as well as on account of Ordinance No, XXII of 1960 promulgated by the President of Pakistan the present suit is not maintainable and is thus liable to be dismissed.
4. That otherwise too the suit was barred by law of limitation and cannot proceed because of the exclusive, uninterrupted, adverse possession of the defendant for a period more than 12 years.
Hence the suit merits dismissal.
5. That the suit is barred by the doctrine of contained in section 11 of C. P. C.
On Merits.-
1. Contents of paragraph 1 of the plaint are not admitted correct. The same are denied and contested vehemently. The alleged sale transactions etc. As stated in paragraph 1 of the plaint are wholly farce and Benami. In fact the property in suit was purchased by the Ruler of Kharan State viz. Nawab Mir Habib Ullah Khan Nausherwani for his personal occupation or residence as a Ruler of the said State with the money or Funds (in the sum of Rupees one lac) provided by the Central Government of Pakistan specifically for this purpose.
2. Contents of paragraph 2 of the plaint are likewise not admitted correct for the same reasons and grounds as stated in paragraph 1 above except that the suit property was named and styled by the late Nawab Mir Habib Ullah Khan himself as Kharan House inasmuch as it was purchased by him at the instance and expense of the Pakistan Government for the personal occupation and residence of the Ruler of Kharan State. After the death of late Nawab Mir Habib Ullah Khan the defendant was recognised and declared by the Government of Pakistan as a lawful Ruler of Kharan State and as such came into possession of the suit property as the only lawful owner and occupant of the said property and since then the defendant is in the exclusive and uninterrupted possession of the suit property.
3. Paragraph 3 of the plaint is not admitted correct and the same is denied accordingly except the factum of minority of the plaintiff in the year 1956.
4. The entire contents of paragraph 4 of the plaint are not admitted correct, denied and repudiated strongly.
5. Paragraph 5 of the plaint is not denied.
6. Paragraph 6 of the plaint not admitted correct and denied. The defendant is in possession of the suit property on account of his exclusive legal right to occupy, possess and own the same as a Ruler of Kharan State and as a lawfully recognized Successor, as a Rules to the late Nawab Mir Habib Ullah Khan Nausherwani.
7. Paragraph 7 of the plaint is partially admitted because the dates and the permission to file a fresh suit is not correctly known to the defendant as long time has since lapsed.
8. Paragraph 8 of the plaint is denied and not admitted correct. No cause of action has accrued to the plaintiff against the defendant in respect of the suit nor this Horeble Court has jurisdiction to try the subject-matter of the suit because it falls within the exclusive jurisdiction of the Central Government to decide the same.
9. Paragraph 9 of the plaint is formal.
' In view of the above submissions it is prayed that the plaintiff's suit against the defendant be ordered to be dismissed with costs to the defendant.
(Sd.) Defendant. through Attorney.
Verification- ' Verified on Oath this 18th day of April, 1974 at Quetta that the contents of paragraphs 1 to 8 under the hearing on merits are true to my knowledge and the rest of the paragraphs above are believed by me to be correct on the basis of information.
(Sd.) defendant. through Attorney.
4. The learned District Judge Quetta framed the following preliminary issues on 20-4-i974 as the same involved the question of jurisdiction of the Courts :-
(1) Whether the civil Court has no jurisdiction in view of Ordinance XXII of 1960 and Order No, 12 of 1961.
(2) Whether the suit is barred under the provisions of section 86/87, Cr. P. C. ?
5. The evidence was recorded on the issues framed and the defendant produced documents which were admitted and for statement of defendant the case was fixed for 30-11-1974 but he did not turn up and the case was fixed for evidence in rebuttal. The suit was however transferred to the Senior Civil Judge on 10-2-1976 and ultimately it was dismissed on 10-10-1977. It appears from the judgment of the Court that the objection in respect of the provisions of section 86/87-A as taken in the written statement was not pressed at the time of the argument and was accordingly not decided, and the Issue No, 1 was decided with the observations :- ' I have weighed the matter in the light of these documents and arguments of both the counsels and have come to the conclusions that this Court has no jurisdiction to entertain, adjudicate the matter in dispute because the parties belong to the family of the Ruler of the acceding State i,e, Kharan and the property in dispute known as Kharan House and now also in possession of the defendant declared as a Ruler/Nawab. As such the issue is decided in the affirmative."
' The suit was dismissed with cost on 10-10-1977.
6. An appeal was filed by the plaintiff in the Court of the District Judge which referred to the Additional District Judge. During the pendency of the appeal Mir Cihularn Mustafa Khan died on 22- 11-1979 and the present appellants being his legal representatives were brought on record.
' The Additional District Judge reversed the judgment of the Senior Civil Judge, Quetta and accepting the appeal on 9-3-1981 remanded the suit to the trial Court for its decision according to the merits of the case. The learned Additional District Judge came to the conclusion that "from the documents adduced by the defendant one fact only comes into light that a sum of Rs, 1 lac was granted to late Nawab (Mir Habibullah Khan S. R. Father of Mir Ghulam Mustafa Khan Nausherwani) for construction of a house at Quetta if the late Nawab of Kharan would have brought to the notice of the Central Government of any property in his occupation at Quetta, surrendering it to the Government stating that the property in his occupation was out of the fund available to him. The Government would have considered the point in issue." and further that on the representation of Mir Mustafa Khan Nausherwani (Mir Mustafa Khan become Nawab after the death of Habibullah in October, 1958) made on 29.9-1959 regarding the transfer to him of Kharan House at Quetta no decision has been made uptil this date and it has not be recognized that the present property was really the Central Government property. It was further observed that the present property was purchased through a registered sale-deed in the name of the plaintiff who was minor at that time and further that mutation of the property was entered in the revenue record in the name of the plaintiff and that late Nawab of Kharan and his predecessor-in-interes (Habibullah Khan) were well aware of the registered sale-deed and the mutation i,e, 18-7-1956. In this view of the matter the learned Additional District Judge held that the present property prima facie does not belong to the Central Government," and the decision of the trial Court was found erroneous and the Order No, 12 of 1961 has held to be not applicable to the present case. Against this order dated 9-3-1981 passed by the Additional District Judge Quetta this R. S. A. No, 9 of 1981 has been filed in the High Court.
7. Mr. Muhammad Nawaz Ahmed the learned counsel for the appellants has urged the following grounds before me :-
(a) That previously instituted Suit No, 68 of 1968 (referred in paragraph 7 of the plaint) should have been dismissed on the preliminary objections raised in that suit and the Court which permitted the withdrawal had no jurisdiction to grant permission under Order XXIII, rule 1, C. P. C.
(b) That the fresh suit filed on 19-12-1972 was time-barred because of the adverse possession within the meaning of Article 144 of the Limitation Act.
(c) The matter about the same property is under the consideration of the Central Government in consultation with the Provincial Government. As such it is only the Central Government which is possessed of jurisdiction to decide the issue regardin3 the dispute about the property and its devolution or decision between Ruler and heirs or between the Heirs.
8. The objection (a) above having not been taken in the written statement nor in the present appeal in the High Court is liable to be ignored, and there is no compelling reason to permit the counsel to raise this point at this stage, though it may be even a question of law, but in deference to the learned counsel's industry which he has exhibited during arguments he addressed before me I would examine the question. The contention of Mr. Nawaz Ahmed, the learned counsel for the appellants is that the defects in the application made before the District Judge where the previously instituted Suit No, 6 of 1968 was pending were not formal but went to the roots of the case, the withdrawal of the suit with permission to file a fresh suit was not justified and the Court was not competent to grant the permission. The counsel has elaborated his submission by saying that under Order XXIII, rule 1, C. P. C. Withdrawal is only allowable when there is a formal defect. If there is no formal defect the order of withdrawal is without jurisdiction. When a court is given jurisdiction to pass a certain order subject to some conditions precedent the absence of those conditions make the order one without jurisdiction. The question therefore, is what is jurisdiction and the answer to the question depends upon an analysis of the notion of the jurisdiction of a Court.
Jurisdiction may be defined to be the power of a Court to hear and determine a cause, to adjudicate or exercise of judicial power in relation to it in other words by jurisdiction is meant the authority which a Court has to decide matters which are litigated before it. It includes the power to hear and determine issues of law and fact. This jurisdiction may be qualified or restricted by a variery of circumstances. This qualification into territorial jurisdiction, pecuniary jurisdiction and jurisdiction of the subject-matter is obviously of a fundamentally character. Given sue jurisdiction, we must be careful to distinguish existence of jurisdiction from exercise to jurisdiction for fundamental different are the consequences of failure to comply with the statutory requirements in the assumption and in the exercise of jurisdiction. The authority to decide a case at all, and not the decision, rendered there, is what makes up jurisdiction and when there is jurisdiction of the person and the subject-matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction. The distinction between existence and exercise of jurisdiction a question great nicety has sometimes led to confusion. The boundary between c an error of judgment and the usurpation of power is this ; the former is reversible by the appellate Court within a fixed time and is therefore only voidable, the latter is an absolute nullity. Where it be held that a Court has jurisdiction to render only correct decision, then each time it made an erroneous decision, the Court would be without jurisdiction and the ruling itself void. With all respect to the learned counsel such is not the law. It matters not what may be the particular question presented for adjudication whether it relates to jurisdiction of the. Court itself or affects substantial rights of the parties litigating, it cannot be said that the decision is without jurisdiction or is beyond the jurisdiction of the Court. The decision may be erroneous but it cannot be held to be void for want of jurisdiction.
' Since jurisdiction is the power to hear and determine it does not depend either upon the regularity of the exercise of that power or upon the correctness of the decision pronounced, for the power to decide necessarily carries with it the power to decide wrongly as well as rightly. As an authority for this proposition reference may be made to the celebrated dictum.
"A Court has jurisdiction to decide wrong as well as right."
' The view that jurisdiction is entirely independent of the manner of itself exercise and involves the power to decide either way upon the facts' presented to the Court is by now well founded on principle.
' If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right, and if that course is not taken G the decision however, wrong, cannot be disturbed.
' The rule that can be safely stated is that if a Court has jurisdiction to try a suit and has authority to pass oiders of a particular kind, the fact that it has passed an order which it should not have been made in the circumstances of the litigation, does not indicate total want or loss of jurisdiction so as to render the order a nullity.
9. The relevant provision of law under which permission is granted to withdraw the suit with liberty to file a fresh suit is contained in Order XXIII, rules 1 and 2, C. P. C. Which for facility of reference is reproduced : 23(1)
(2) Where the Court is satisfied-
(a) that a suit must fail by reason of some formal defect ; or
(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim it may on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim."
The expression "Formal Defect" has not been defined anywhere in the Code of Civil Procedure but its plain meaning appears to be that :he defect should be only in point of form of the suit and connotes every kind of defect which does not affect the merit of the case. Clause (a) of I sub-rule
(2) of Order XXIII, C. P. C. Applies when the Court is 'satisfied that the suit must fail by reason of some formal defect while clause (b) would apply irrespective of the fact whether the suit is likely to fail or not. A Division Bench of the Lahore High Court in Gurprit Singh v. Punjab Government (1), had the occasion to review all the import authorities bearing on the subject of the various High Courts.
The judgment was rendered by Din Muhammad, J. And Muhammad Sharif, J. Concurred with his view. At page 432 of the report it is observed :- "Here the formal defect is provided for in clause (a) of sub-rule (2) and other sufficient grounds in clause (b) the same Rule. If it was was intended by the legislature that sufficient grounds contemplated in this rule be also ejusdem generis with "formal defect" they could easily have enacted both the provisions in one sub-rule. As I read the provision, the words "other sufficient grounds" are much wider in signification and can cover all those cases which appear to Court as affording such grounds."
Thus what grounds would be considered sufficient in a case for the application of clause (b) has been left entirely to the discretion of the Court j and this discretion has not been fettered in any manner, of course this power has to be exercised not arbitrarily.
10, It follows from the above principles that when a Court of competent jurisdiction has made an order under Order XXIII, rule 2,1
(1) AIR 1946 Lah. 429 C. P. C. In circumstances not contemplated by the Rule, the order cannot be deemed to have been made without jurisdiction. The Court has jurisdiction to try the suit, and in the exercise of that jurisdiction is competent to make an order for withdrawal with liberty reserved to the plaintiff to institute a fresh suit in respect of the same subject-matter, if it is satisfied that circumstances exist which justify such an order. The Court is so satisfied rightly or wrongly. However erroneous the order may be it is not an order made by a Court without jurisdiction. It is on the other hand, an order made by a Court of competent jurisdiction. The order cannot, consequently be deemed null and void. The party aggrieved may directly impugn the order and may in an appropriate proceedings, invoke the aid of a superior Court to set aside the order but till it has been so vacated, it is operative between the parties and cannot be ignored or challenged collaterally in a different proceedings.
' If a party who is dissatisfied with such an order is allowed to treat it as a nullity in a subsequent proceeding, without vacating the order by proper proceedings, the plaintiff may be subject to a serious risk. I am, therefore, of the considered view that the order for withdrawal of the suit with permission to institute a fresh suit as done by the District Judge ink' Suit No, 6 of 1968 cannot be treated as an order without jurisdiction ; such an order is consequently not null and void and the fresh suit instituted upon leave/permission so granted was competent and no Court trying the subsequent suit is competent to enter into the question. The contention of the learned counsel raised in this behalf being misconceived has to be repelled. In this view of the matter the cases cited and relied upon by the learned counsel for the appellants being misplaced do not require further scrutiny for the reason that in all the cited cases the revision/appeal were filed in the same proceedings and not in the different proceedings collaterally, it is therefore not necessary to dilate upon this point any further. The authorities referred by the learned counsel and considered by me in connection with the contention of the counsel referred above are however being mentioned and are
(1) AIR 1933 Cal.
107. (2) AIR 1934 Cal.
59.
(3) AIR 1940 Born.
121. (4) AIR 1941 Oudh 417.
(5) AIR 1943 All.
417. (6) 1972 SCM R 203.
(7) PLJ 1980 Pesh.
80.
11. The ground mentioned as (b) in paragraph 7 above raises the question of limitation and adserse possession, are of facts or in any case, mixed questions of facts and law. The Court is therefore under an obligation to frame the issues on the points and after considering the evidence produced by the parties has to give his findings thereon. The plaintiff/ respondent has asserted his title to the property and relied upon the Registered Sale Deed, it was the defendant/appellants to prove that they were in adverse possession or that the transaction was Benami. The case of the plaintiff as disclosed in the plaint is that the property belongs to him, was purchased when he was minor. This claim of the plaintiff is furnished in the Registered Sale Deed itself. The relevant endorsement made on the presentation of the document before the Registrar reads :- {{URDU TEXT}} It is the case of the plaintiff that the defendant (Mir Mustafa Khan) was permitted in 1959 to live in the house for some time and this permission was accorded on his behalf by his brother Nawabzada Sher Ali Khan on th express undertaking given by Mir Mustafa Khan that he would vacate the N house (I am informed by the learned counsel for the appellants that late Nawab Habibullah had died in October 1958). The parties are very closely related. The induction of Mir Mustafa Khan therefore was only permissive. Mir Habibullah the recognized Ruler of Kharan never asserted during his lifetime that the property in suit belonged to him or that it was purchased out of the fund of Rs, one lac granted by the Central Government or that the sale-deed dated 16th July, 1956 was a "Benami". Though it was registered during his lifetime and upto this day even the property is notO included in the Estate property of the Ruler. The defendants therefore has got first to establish that the property legally belonged to the Ruler/ late Nawab Habibullah Khan) then only Mir Mustafa Khan can possibly lay his claim thereon, It is only in the year 1959 for the first time Mir Mustafa Khan made an attempt that the property be so included which request has not been acceded to by the Government. The claim of the defendant is thus apparently not hostile.
' If the property does not belong to the Ruler (late Nawab Habibullah) there can be no dispute in respect thereof between persons claiming to be the heirs and successors of the State or concerning the devolution and distribution of the property of the State or of the Ruler requiring the decision of the Central Government. Article 3 of the President's Acceding State (Property) Order XII of 1961 has therefore no application, to the" present suit. Only a dispute among the heirs and successors concerning the devolution and distribution of the State is within the competence of the Central Government. The protection extends to that property which is found to be the property of the Ruler and not otherwise. The entire superstructure thus built by late Mir Ghulam Mustafa Khan on which his successors in interest (the present appellants) bank so much falls to the ground. This is the obvious reason why the Government has not paid any attention to the request made by Mir Ghulam Mustafa since 1959. The Supreme Court of Pakistan in Baluch Khan v. Lal Bibi (1), has observed "That the Bar contained in Article 3 of the Order XII of 1961 referred above" extends to that property which is found to be the property of the Ruler and not otherwise,"
In this view of the matter I am of the opinion that the High Court: cannot go into the question of Benami raised on behalf of the appellant',., or the limitation and adverse possession. It would be up to the trial l' Court to consider the entire case on its merits after having framed the] necessary issues arising out of the pleadings.
' The upshot of the above discussion is that the appeal fails and is accordingly dismissed. The case shall be remitted to the trial Court for decision on merits. Since the parties are very closely related they shall bear their own costs.
(1) PLD 1972 SC 84