1. Briefly stated facts of case out of which this civil revision has arisen are that Mst. Hafeezan Bibi widow of Nawab respondent No. 1 and Noon Muhammad son of Ismail predecessor-in-interest respondents Nos. 2 to 5 in the present civil revision were owners of landed property measuring 315 Kanals and 6 Marlas situate at Noor Pur Thal, Tehsil Khushab, District Sargodha. Vide Mutation No. 6654 sanctioned on 31-5-1964 and Mutation No. 6753 sanctioned on 22-1-1964 land was sold in favour of Mansab Ali petitioner in the present petition. The respondent No. 1 and Noor Muhammad now deceased filed suit seeking a declaration to the effect that the alleged mutation of sale have been sanctioned without there being any transaction of sale in their absence in collustion with the revenue authorities and are illegally void inoperative against their rights and thereof they continue to be the owners of the property in question and the defendants may be restrained by decree for permanent injunction to interfere with their possession. Case of the petitioners-plaintiffs as spelled out from the plaint is that the petitioners had appointed Muhsab Ali petitioner as their general attorney but he fraudulently got appointed Khurshid son of Dina respondent No. 6 as general attorney on their behalf and on the basis thereof the two mutations of sale have been sanctioned in favour of the petitioner although the sale never took place. It is further contended in the plaint that the petitioner had been assuring the respondents that on the basis of the general power of attorney he is getting the land allotted in their name and ultimately told that the claim of the respondents have been lost thereupon the plaintiffs-respondents have been in search of their claim. It is mentioned in the plaint that the revenue authorities were approached but they did not cancel the mutations consequently, the suit referred to above has been filed on 23-5-1978. This suit has been contested by the petitioners on the grounds that respondent No. 6 was appointed as a general attorney by the respondent No. 1 with free consent in terms whereof, the sale was made by the said attorney in favour of the petitioner so far as the share of Mst. Hafizan Bibi is concerned and so far as Noor Muhammad is concerned, he himself got the mutation of sale sanctioned in favour of the petitioner on the basis of the sale transaction which was admitted by him as correct and further that both the sale mutations are with consideration and the suit is barred by time inasmuch as the suit has been filed beyond the period of six years after the sanctioning of the sale mutations.
2. Form of the suit is also objected to in the written statement as being had for misjoinder of causes of action. On the basis of the pleadings of the parties, learned trial Court framed the following issues:-- (1)Whether the suit is bad for misjoinder of cause of action?.
3. (2)Whether the Court lacks jurisdiction to try this suit?
4. (3)Whether the suit is time-barred?
5. (4)Whether the plaintiffs are estopped by their own conduct to bring the suit?
6. (5)Whether the Mutation No. 6654 sanctioned on 31-5-1964 and Mutation No. 6753, dated 22-1-1965 are illegal, void without jurisdiction collusive and are, therefore, inoperative against the right of the plaintiffs?.
7. (6)Whether the plaintiffs are deprived of the suit land by fraud and misrepresentations?
8. (7)Relief.
9. It may be mentioned here that the material issues in this case are issues Nos. 3, 4, 5 and 6 which involve the toality of the dispute between the parties which is basically to the effect as to whether any sale had taken place and as to whether the mutations in question were rightly sanctioned and that the same were challenged within limitation.
2. Learned trial Court after recording of evidence which. consisted of the statements of Muhammad Yar P.W.1, Bashir Ahmad P.W.2 and Mst. Hafizan Bibi P.W.3 and the documentary evidence which consists of the Register Haqdaran Zameen 1961-62 Exh. P1, copy of Mutation No. 6654-P2, Copy of RL-11 Exh.. P3 and copy of general power of attorney Exh. P4 on behalf of plaintiffs and the statements of Shaikh Ahmad D.W.1, Muhammad Saleem D.W.2, Munshi D.W.3, Muhammad Shafi D.W.4, Ghaus Ali D.W.5, Muhammad Shrif D:W.6, Khurshid respondent No 2, D.W.7, Munsab Ali DW.8, Yasin D.W.9 and documents Exh. DI copy of Mukhtarnama and copy of Mutation No. 6753 Exh. D2 on behalf of the petitioners-defendants vide judgment and decree dated 12-2-1979, decreed the suit filed by the respondents. Learned trial Court held that the suit is not bad for misjoinder of cause of action; that the trial Court has jutlsdiction to try the suit; that the plaintiffs are not estopped; that the mutations in. questions are illegal, void and in-operative against the rights of the plaintiffs and the plaintiffs have been deprived of their property by the fraud and misrepresentation. Aggrieved by the said judgment and decree, the petitioner filed regular first appeal in the District Court, Sargodha which has been dismissed by the learned District Judge vide judgment and decree dated 8-9-1980. Learned appellate Court has also concurred with the findings of the learned Civil Judge almost on the same ground whose on learned Civil Judge had recorded the findings of facts on various issues. Aggrieved of both the judgments and decree, the defendants have filed the present petition.
3. Mian Nisar Ahmad, Senior Advocate appearing on behalf of the petitioners has raised the following contentions:-- (1)That in the suit no prayer has been made seeking cancellation of the general power of attorney and the mutations therefore the suit is not maintainable.
10. (2)That from the pleadings of the parties, the only material issue which had risen is as to whether a valid general power of attorney had been executed by the respondents but no issue has been framed on this material point which has prejudiced the petitioner and further that without their being an issue on this question; it cannot be held that the sale in question was not valid unless and until the deed of general power of attorney is held to be based upon fraud. Learned counsel contends that the two learned Courts below have misdirected themselves by not determining the real matter in issue which arises in suit and,, therefore, have exercised their jurisdiction illegally and with material irregularity.
11. (3)That the mutations in question are dated 31-5-1964 and 22-11-1964. The suit has been filed on 10-7-1972 which is beyond the period of six years consequently the same is barred by time. Learned counsel relies on case of Ahmad Din v. Muhammad Shafi, etc. (PLD 1971 SC 762) and L. Arura Mal v.
12. Mst. Sandhuran (AIR 1947 Lah 290).
13. (4)That the form of the suit is not correct inasmuch plaintiffs-respondents are not in possession of the land in question and is also bad for misjoinder of cause of action hence is not maintainable and that the two learned Courts below have misread the evidence and have failed to take into consideration material pieces of evidence which have resulted in recording incorrect findings of fact on the issues framed in the suit, hence have exercised their jurisdiction illegally and without a lawful authoriy.
14. (5)That the learned first appellate Court has not written a speaking judgment after an independent application of mind to the facts and circumstances of the case as well as the evidence recorded in the case and has just thumb-marked the judgment rendered by the trial Court.
15. (6)That Noor Muhammad plaintiff himself entered into sale transaction and got the mutation of sale sanctioned himself but nothing has been said in the plaint and evidence as how sale mutation of his land is illegal.
4. As against the above arguments addressed by the learned counsel for the petitioners, Malik Muhammad Nawaz, learned counsel for the respondents after referring to various paragraphs of the plaint has argued that the ingredients of fraud have been given in the plaint which stand proved by evidence led by the respondents and, therefore, it will not make any different if no issues has been framed about the validity of deed of general power of attorney. Learned counsel, however, admits that in the plaint a specific allegation has been levelled with regard to the execution and preparation of the deed of general power of attorney on the basis whereof the sale in question was made. Argument of the learned counsel, however, is that issue No. 6 does cover this aspect of the case and, therefore, even if a specific issue with retard to the deed of the general power of attorney has not been framed and parties have not been given an opportunity to produce evidence it has caused no prejudice to the petitioner, as the parties understood the controversy involved in the case and led evidence which they wanted to lead. Learned counsel had further argued that it has never been a plea of the petitioner before any lower forum that the necessary issue has not been framed nor was their any move for framing of such an issue or that cancellation of the deed is not sought in the suit, hence in exercise of revisional jurisdiction of this Court, their pleas, cannot be allowed to be raised. Learned counsel had further contended that concurrent findings of fact recorded by the two learned Courts below which are favourable to the respondents cannot be interfered with in exercise of the revisional jurisdiction of this Court. Learned counsel has relied upon cases of Kanawal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53) and Muhammad Bux v. Muhammad Ali (1984 SCMR 504). According to the learned counsel, it is not a case of misreading or non-reading of evidence and no legal infirmity has been pointed out by the learned counsel for the petitioners. On the question of limitation, learned counsel for the respondents argues as it is a case of fraud, the suit has to be filed on the date when the fraud had come to- light and, therefore, it cannot be said that the suit was barred by time. Form of the suit according to the learned counsel is also not defective and the suit is not bad for misjoinder, of causes of action as it is against the same persons and is based upon identical and rather same cause of action. Learned counsel has not been able to point out from the plaint ingredients of fraud alleged committed with Noor Muhammad deceased plaintiff except that deed of general power of attorney was obtained by fraud. It may be mentioned-here that deed of power of attorney has been executed only by the respondent No. 1.
16. 5.1 have considered the arguments addressed by the learned counsel for parties and I feel that the suit has not been determined with reference to real controversy which is in dispute between the parites. According to the plaintiffs who are respondents in this petition, it was petitioner who was appointed as a general attorney and not the petitioner No. 6. Petitioner fraudulently got appointed petitioner No. 6 as general attorney and then got the land in question transferred in his name. This fact has been denied by the petitioner and respondent No. 6 who are defendants in the suit. If the deed of general power of attorney has been validly executed then no fault can be found with the mutations of the sale as same are being supported by the general attorney in whose favour admittedly there does exist registered deed of general attorney which authorises him to sell the property in question. The case has not been tried keeping in view the aforementioned controversy.
17. Evidence has been led with reference to the sanctioning of the mutation of sale. Preponderance of evidence produced by both the parties relates to the sanctioning of the mutations of sale and the real matter in controversy has neither been put to issue nor has been tried and determined by the learned Court below. No doubt it is the duty of the parties to point out the framing of necessary issues and ordinarily if no such move is made during the pendency of lis. It shall be presumed that issue has been abandoned but it is equally the duty of learned trial Court to frame correct issue, which are necessary for the determination of the real controversy between the parties and merely because the parties have not pointed out, does not absolve the learned trial Court to perform its legal and statutory duty. Action or i0ction on the .part of the Court cannot prejudice a party to litigation, for the above legal proposition. See the following cases, Ananta Kumar Majlumdar and others v. Gopal Chandra Mijurridar and others (PLD 1961 Dacca 65), Kh Shah Muhammad Khan v.
18. Allah Diwaya and others (PLD 1961 Lahore 743) and Malik Hadayat Ullah and 2 others v. Murad Ali Khan (PLD 1972 SC 69). execution of deed of general power of attorney is being admitted by the respondents although in a different context, consequently, the only material sue which was involved in the case is as to whether sale deed was executed favour of the petitioner or respondent No. 6 and whether deed of general attoey Exh.DI is a validly executed document in favour of the respondent No. 6. If -the answer to this question is that the plaintiff had executed the general power of attorney in favour of respondent No. 6 then the suit as a whole will be liable to be dismissed inasmuch as very basis for filing of .the suit on the grounds of fraud shall stand knocked out. Failure of the Courts below to determine material issue amount to exercise of jurisdiction illegally and with a material irregularity and hence attracts the exercise of revisional jurisdiction of this Court. I do not agree with the arguments of the learned counsel for the respondent that issue No. 6 covers the controversy as the same is of a general nature and cannot be said to be specific.
6. In view of the above, I hold that the case not been tried and determined with reference to real controversy involved in the case and both the Courts below have misdirected themselves in the trial of the suit. I however, do not express any opinion on the issue which have been framed in the suit, but the findings thereon shall have to be set aside and said issue shall also have to be decided alongwith the issue in relation to the validity of deed of general power of attorney in dispute inasmuch as evidence led and finding recorded on that issue shall affect the findings on the other issue as well. Resultantly, I accept this civil revision, set aside the judgments and decrees passed by the learned two Courts below and remand the suit to the learned trial Court for decision thereof afresh after framing of issue on the question of execution and validity of the deed of general power of attorney in question and after recording of evidence on the said issue. Findings, however, shall be recorded afresh on all the issues. Parties to bear their own costs. Parties shall appear before the trial Court on 12-11-1992. As the dispute out of which this litigation has arisen is a very old and one of the party is lady, it is directed that the suit shall be finally decided by the learned trial Court within a period of six months.