SHAFIUR RAHMAN, J.--The Petitioners who were plaintiffs in the case, seek leave to appeal against the judgment of the Balochistan High Court dated 24-5-1988 whereby an order of remand passed by the Member Board of Revenue was set aside and their suit was ordered to be dismissed.
2. One Rahimuddin had six sons, Abdullah Jan, the predecessor-in-interest of the Petitioners, being one of them. Abdullah Jan instituted a suit in the Court of Assistant Commissioner invoking Civil Procedure (Special Provisions) Ordinance, 1968 (now for Balochistan and the former Excluded Baloch Area of Dera Ghazi Khan) (W.P. Ordinance No,! Of 1968) for getting a mortgage redeemed.
The suit was referred to the Tribunal which went into the question of ownership of that land of which redemption was sought and held that on the basis of will executed by Rahimuddin, Abdullah Jan has lost all title and interest of the land and was deprived of the share in it. Hence it recommended the dismissal of the suit. The Assistant Commissioner on 20-7-1974 accepted the recommendations and dismissed the suit. Appeal filed by the Petitioners failed before the Additional Commissioner on 25-5-1978. The Member, Board of Revenue on 16-2-1986 remanded the matter for re-examining the case after framing proper issues. A Constitution Petition (C.P.No, 23/1986) was filed against this decision which was allowed observing as hereunder:-- "The learned Member Board of Revenue has not allowed the revision by applying his mind to the conditions provided for in the above-quoted proviso but has travelled beyond his jurisdiction. We would, therefore, allow the petition and declare the impugned order as being without lawful authority and of no legal effect but remand the case to the learned Member Board of Revenue to examine the case only in terms of the above-quoted proviso of section 12 of the Ordinance. The petition stands disposed of in the above terms with no order as to costs."
The matter went again to the Member Board of Revenue, who again passed an order of remand on 15-11-1987 observing as hereunder:- "As all the above illegalities need trial and evidence for and against the issues so this cannot be resolved at this forum when the case has been argued only before this Court. In all fairness it is a case where miscarriage of justice has taken place. So in view of the above reasons, the case is remanded back to the trial Court for trial afresh as indicated above, after hearing the parties. It will not be out of place to mention here that the will had been set at naught after trial by the Assistant Commissioner, Pishin vide his order dated 20th of February, 1946. This fact may also be taken into consideration."
This Order was challenged by a Constitution Petition (C.P. No, 287 of 1987) and the learned Judges of the High Court allowed it by observing as hereunder:-- "We are therefore, of the considered view that the order passed by learned Member Board of Revenue dated 15-11-1987 is without lawful authority and thus of no legal effect. The same, therefore, is set aside and orders of dismissal of the suit shall hold the field."
3. When the Petition came up before this Court on 4-6-1989, notice was issued to the respondent as to why this Petition be not converted into appeal and allowed as such. The reason which appears ex facie for such a notice was that after declaring the revisional order of the Member Board of Revenue dated 15-11-1987 to be without lawful authority and of no legal effect, the High Court should have in the normal course passed the consequential order of treating the revision still pending before the Board of Revenue unless it recorded determinative finding itself on the controversial issues in the case.
4. The question in controversy at this stage is whether the suit for redemption on the terms and conditions pleaded in the plaint, was at all competent under Ordinance No, I of 1968 and the appropriate law was not the Restitution of Mortgages Act of 1964. The appellants had themselves invoked the former law and not the latter and the effect of it. The other question which merited examination was that the Tribunal had held that mortgage was not proved because the mortgagor was not found to be the owner of the land, and the mortgagor was not found to be the owner of the land because his father had deprived him of the share by a will. The mortgage in the case was evidenced by a Mutation attested and the admission of the mortgagees, which fact was not taken note of and it was also not noted whether under Mohammadan Law or the customary law by will in favour of heirs, another heir could be deprived of inheritance. The validity of settlement of 1966 between the parties was also not examined. Before upholding the dismissal of the suit, all these controversial questions had to be attended to and positive finding had to be recorded. This was not done at any stage or by any authority. We convert this petition into an appeal and allow it, setting aside the impugned judgment of the High Court, and remand the case to the High Court for getting the questions raised in the appeal resolved, either by the statutory authorities charged with the duty of doing so or exceptionally, of resolving itself these legal and jurisdictional questions. No order is made as to costs.