' Muhammad Darwaish Khan, petitioner herein brought a suit on 21-12-1988 against Bahadar Nawaz Khan, Zar Nawaz Khan sons of Bahadar Sher Khan and Hayat Khan for a declaration that he is owner in possession of 2 Marlas of land bearing Khata No,. 397/479 in Khasra No,1657/879 situated in Village Fatima Khel, on the basis of an ex pane decree dated 18-6-1980 passed in his favour against Hayat Khan in Suit No,162/1 of 1980 and that the subsequent alienation by Hayat Khan in favour of Habadar Nawaz and Zar Nawaz through Mutation No, 8315 attested on 20-7-1980 was void and liable to be cancelled. It was prayed in the alternative that in case, the petitioner was not found to be in possession of the suit property, possession be delivered to him written statements were filed, one jointly by Bahadar Nawaz Khan and Zar awaz Khan defendants Nos.1 and 2 and the other by Hayat Khan defendant o.3. Defendants Nos.1 and 2, beside, taking up the ground of limitation, fended the mutation in question on the basis that it benefited not only them but e plaintiff as well as the 2 Marlas were split equally, one Marla was attested in your of defendants Nos.1 and 2 the other in favour of the plaintiff. Defendant 0.3 in his written statement additionally expressed his intention to file an application under section 12(2) of the C.P.C. For setting aside the ex parte decree passed against him in Suit No, 162/1. The controversies that came to come from the pleadings of the parties gave rise to the framing six issues, whose reduction here are necessary as arguments were also addressed on their deficiency. The issues are as under:---
(1) Whether the plaintiff has got a cause of action?
(2) Whether the suit is within time?
(3) Whether the plaintiff is in possession of the suit property?
(4) Whether the plaintiff has not paid the entire sale consideration of the suit property?
(5) Whether the plaintiff is entitled to the decree as prayed for?
(6) Relief?
' After recording the evidence of the parties the suit was dismissed on 2-2-1992 in the issue of limitation as well as on issue No,1, the trial Court holding that he rights that accrued to the plaintiff under the ex parte decree in Suit No,162/1 'ere not enforceable as the same were not incorporated in Revenue Record and tat the dispute between the plaintiff and defendants Nos. 1 and 2 was aabsequently settled through arbitration. An appeal preferred by the petitioner against the judgment and decree of the Senior Civil Judge, Bannu was is allowed by the Additional District Judge, Bannu vide judgment and decreeted 20-12-1993 on substantially the same grounds that prevailed with the trial ourt. The judgments and decrees of the two Courts below are now assailed in is civil revision.
2. The learned counsel for the petitioner, S. Zafar Abbas Zaidi, Advocate as heard at length, his initial attack was on the deficiency in the framing of the sues in that it ought have, but did not, include issues on settlement of the introversy between the parties through arbitration or agreement. In this context was contended that the claim of arbitration was no doubt made at the time of cording of evidence but additional issue could have been framed even at that age. Reliance was placed on Fazal Mehrnood. v. Tajor Khan 1992 M LD 1439. The question of limitation it was contended that the suit was not time-barred every repetition of wrong entry in the Revenue Record gives fresh cause of action to person effected thereby. In this respect reference was also made to the statement of the plaintiff given in the trial Court wherein in his cross-examination he had claimed that he had approached the 'Patwari Halqa' in 1984 to mutate the 2 Marlas in his favour on the basis of the ex parte decree but he declined on the ground that only one Maria has already been attested in his favour. Support was in this context sought from the reported judgment of this Court in Habibullah Jan v. M. Hassan Khan (1991 M LD 25). As for the decision of the lower Courts on issue No,1 is concerned it was argued that the ex parte decree passed in favour of the petitioner, until set aside through one of the various means prescribed in the Civil Procedure Codes, confers a valid title on the petitioner to the 2 Marlas land and that its non-incorporation in the Revenue Record would not nullify the right accrued to the petitioner thereby, nor would the subsequent so called arbitration or agreement have any effect on the adjudication made through the decree. It was pointed out, by a reference of section. 2(2) of the C.P.C. That decree, which includes ex parte decree, determines conclusively matters in controversy between the parties in a suit. Reference was also made to the judgment of the Supreme Court of Pakistan delivered Muhammad All v. Hassan Muhammad PLD 1994 Supreme Court 245 to stress the point that the entries in Revenue Record did not create or extinguish title to property as these were maintained for fiscal purposes only. It was thus argued that both the Courts below have erred in giving preference to the omission in the Revenue Record over the decree of competent Court of law.
3. For the respondents, Mr. Dost Muhammad Khan, Advocate, argued that the petitioner by participating in the arbitration proceedings, whereby the matter was settled between the petitioner and defendants-respondents Nos.1 and 2 0 the basis of registered documents named Iqrarnama', the petitioner ha impleadly surrendered any right that had accrued to him as a result of the e parte decree in that in the 'Iqrarnama', and also in the mutation impugned in the present suit, the petitioner had accepted one Marla and had agreed to the transfer of the other Marla to the defendants-respondents Nos.1 and 2. From this conduct of the petitioner, it was pointed out that it is also not difficult to infer that the petitioner was aware of the mutation in question way back in 1980, thus makin his suit, filed in 1988, time-barred under Article 120 of the Limitation Act.
4. Three questions call for resolution in this civil revision; firstly, the non-framing of certain necessary issues; secondly, the status and effect of the e pane decree passed in Suit No, 162 of 1980 and lastly, the question of limitation. However; before embarking upon determination these questions will be appropriate to give a resume of certain facts discernible from the pleadings and the evidence of the parties relevant for determination of the question posed above. It is not disputed that an cx parte decree in Suit No, 16 of 1980 was passed in favour of the petitioner, and though Hayat Kh defendant, since dead, had expressed his intention in his written statement, to get it set aside, made no move in that direction. The said decree was passed o 25-5-1980 whereas the mutation impugned in the present proceedings attested barely two months later, on 20-7-1980.
Furthermore, according to mutation in question, Exh.PW. 1/1, the two Marlas owned by Hayat Khan has been attested in favour of Bahadar Nawaz Khan and Zar Nawaz Khan, for 1 aria jointly and Muhammad Darwaish Khan for the other Marla. The lqrarnama' between Habadar Nawaz and Zar Nawaz on the one hand and Muhammad Darwaish on the other was executed between them on 9- 12-1980 which was duly registered in the office of the Sub-Registrar. The petitioner in his statement at the trial did not dispute the execution of the Iqrarnama', though it was contended by his counsel that it did not relate to the suit property. The possession of 1 Marla attested through the mutation in question in favour of defendants-respondents Nos.1 and 2 is in their possession on which shops have been constructed. It is so stated by Abdul Ghani Shah, Patwari Halqa and confirmed by the petitioner in his cross-examination. The petitioner had further stated that not only the defendants- respondents but he too has made construction on the land allotted to him by the partition deed/arbitration decision.
5. As for the question regarding non-framing of essential issues, it is no doubt true that issues can be framed at any time before the pronouncement of the judgment and, therefore, if an issue had not been framed inadvertently or a new controversy developer during the recording of the evidence the Court shall frame additional issue so as to enable the parties' to lead evidence thereon. In Fazal Mehmood's case, ibid, this Court deprecated the practice adopted by Civil Judge of leaving the framing issues to the parties counsel. The High Court struck out some unnecessary issues and framed additional issues based on the real controversy between the parties and remanded the case for de novo trial. The facts of the aforesaid case are distinguishable in that the Court found that proper issues were not framed on the basis of the pleadings of the parties, whereas in the present case the contention on behalf of the petitioner is that as the evidence gave rise to new controversy, additional issues ought to have been framed thereon. However, no application was made on behalf of the petitioner to the trial Court for framing of additional issues.
Furthermore, even in the memorandum of appeal filed by the petitioner before the District Judge no ground relating to the non-framing of additional issues has been taken up. True that, as emphasised by this Court in the aforesaid judgment, it is the duty of the trial Court to frame issues on the basis of the pleadings of the parties but the necessity to frame additional issue on the basis of evidence may not be readily appreciated by the trial Court and thus it would be for the party interested to get issue framed to apply to the Court. Having said that the perusal of the evidence even otherwise shows that both the parties were alive to the question of he 'lqramama'. To go a step further there was in fact no controversy as to the execution of the ' lqrarnama' since the defendants-respondents alleged and the laintiff-petitioner admitted its execution. The effect of the lqrarnama', owever, can be seen from its contents and the evidence of the panics. The ower Courts, therefore, did not err by not framing additional issues.
6. Both the Courts, however, wrongly found that the rights accrued to the petitioner under the ex parte decree were 'nullified by the subsequent omission and action of the plaintiff. The non- incorporation of the decree in the Revenue Record would not extinguish the petitioner's rights as it is well-settled that the entries in Revenue Record do not create title to property and the petitioner's claim to the property is on the strength of a decree passed by a competent Court and unless the same is set aside, the rights accrued thereunder would be valid and enforceable. The participation of the petitioner in the arbitration proceedings which culminated into an agreement duly registered cannot amount to satisfaction of the ex pane decree inasmuch as neither any reference therein was made to the decree nor the same was processed before a competent Court of law. As for the adjudication of the rights of the parties are concerned no distinction can be made between the ex parte decree and the one granted after contest between the parties; the definition of decree under section 2(2) of the C.P.C. Includes both the such decrees.
7. The events that followed the ex parte decree may be ignored while examining the validity of the decree but the same are relevant in the present case for determining the issue of limitation. The petitioner was given 1 Marla out of 2 through the mutation that he has challenged in the present proceedings. He has admitted having signed the 'Iqrarnama', whereby 1 Marla fell to his share while the other was given to the defendants-respondents Nos.1 and 2. The Patwari Halqa has stated that both the parties are in possession of their shares. The petitioner in his testimony before the Court has also confirmed this fact and has conceded that he as well as the defendants-respondents have raised construction on their respective shares allotted to them on the basis if 'Iqrarnama'. It follows that the petitioner was conscious and well-aware way back in 1980, that the 1 Marla land which he now claims in the present proceedings was transferred to the defendants-respondents Nos.1 and 2. The contention of the learned counsel for the petitioner that the 'Iqrarnama' relates to property .Other than the suit property is contradicted by the statement of the petitioner where in the opening sentence of his cross-examination he admitted that the arbitrators had made private partition of the suit property. There thus remains no doubt that the 'Iqrarnama' was in respect of the suit property. Becoming aware in the ye 1980 that his rights, accrued to him under the ex-pane decree, has been infringed by the mutation it was clearly too late for him to have instituted a suit questioning the mutation in the year 1988 as under Article 120 of the Limitation Act such a suit must be filed within six years from the date of knowledge. The judgment of the Peshawar High Court in Habibullah Jan case (ibid) cannot co to the rescue of the petitioner as in that case, it was simply held that repetition o wrong entries in successive of 'Jamabandi' would furnish of fresh cause of action every time a wrong entry was repeated. But the present case is not simple one of wrong entries in the Revenue Record but possession on the strength of mutation and the 'Iqrarnama' was delivered to the defendants-respondents Nos. And 2 within the knowledge of the petitioner. The suit of the petitioner was therefore, barred by limitation and thus rightly so held by both the Courts below. The findings of the two Courts on this issue, therefore, do not require by interference.
8. For the reasons aforestated this revision petition is dismissed as the petitioner's suit was barred by limitation. There shall be no order as to costs.
Petitioner dismissed.