1. The applicant has assailed the judgment passed by the learned Second Additional District Judge, Nawabashah allowing Civil Appeal No.31 of 1983 filed by the defendants against the judgment and decree passed by the Civil Judge, Kindiaro dated 26-2-1993 whereby the suit filed by the applicant was decreed was set aside and the matter was remanded. The plaintiffs who are applicants before this Court filed a suit for possession and perpetual injunction in the Court of Civil Judge Kindiaro which was registered as Suit No. 129 of 1981 in which they claimed that they are the owners and that defendants were given twenty-five Ghuntas of land as they are Fakirs. They usurped the possession of land and put the land in their permanent and private use necessitating the suit with the following prayer: "(a) That this Hon'ble Court be pleased to order the defendants to vacate the suit property and houses and the plaintiff be put in vacant possession of the said property/houses.
(b) The defendant be perpetually restrained to occupy any other person of said S. No. Or to disturb the possession of plaintiff over their property either themselves or through any other person.
(c) The costs of the suit be borne by the defendants.
2. Any other remedy which this Honourable Court deems proper may also be awarded."
3. The defendants in the written statement admitted the title of the plaintiffs. According to them the ancestors of the plaintiffs seventy-five years ago gave the land to the ancestors of the defendants as Bukhshish. They claimed titled through adverse possession. They further claimed title over the land with the permission of the elders of the plaintiffs. The learned trial Court framed the following issues:
(1) Whether the plaintiffs are owners of suit property?
(2) Whether the defendants have acquired ownership on the basis of adverse possession?
(3) Whether any party is entitled for compensatory costs?
(4) What should the decree be?
4. The plaintiff examined himself and P.W. Muhammad Saleh while respondents examined Nazar A.I alias Nazam A.I. The learned trial Court decreed the suit. In the appeal the learned First Appellate Court while allowing the appeal held as follows:--- "6. From perusal of pleadings, the only issue struck in the present suit was whether appellants had acquired right of ownership by way of prescription on account of adverse possession because ownership over the property was admitted by the respondent even otherwise has been proved by documents as well as oral evidence and the finding of the trial Court has not been as filed on that account. So far as gift is concerned in para. 3 of the W.S. Filed by the appellants they have taken the plea of gift of land in their favour by the original owner Allah Bux Dahraj admeasuring to 25 Ghuntas, who settled thereon and also fixed the Alam. Since the specific plea of gift in favour of ancesstors of appellants was taken and there is no issue on this point, the appellants were non- suited without striking the issue on the plea of gift and no evidence was adduced. I, therefore, set aside the impugned judgment and decree and remand the case to the trial Court for decision on additional issue. 'Whether the suit property was gifted to the ancestors of the appellants by the ancestors of the respondent. If so what is effect? The learned trial Court is further directed to permit the parties to adduce evidence on the additional issue aforesaid'."
5. Learned counsel contended that the pleas urged by the respondents in the written statement were such that on the one hand they claimed the title through adverse possession, secondly they claimed that they have occupied the land with the permission of the ancestors of the plaintiffs and thirdly through gift/Bukhshish. The learned counsel for the applicant further contended that in the appeal only the ground of adverse possession was claimed and no plea pertaining to the gift was alleged and the learned 1st Appellate Court has gone outside jurisdiction in granting the relief which was not even the basis of memo. Of appeal. According to him the issues were framed by the trial Court and the respondents never insisted about the issue pertaining to the gift. Since no issue was struck pertaining to the gift it shall be persumed that such plea in the pleadings is waived deliberately by the defendants. Learned counsel for the applicant has drawn my attention to the deposition of the witnesses for defendant and his deposition makes very interesting reading. He claimed to be aged about 50 years and his occupation as beggar. According to him, "he is living in the suit land since 50/60 years". In all he claims that the land was owned by the plaintiff's elders, who allowed them to sit and live in the same. According to him they never shifted to Mirzapur. In cross-examination this witness has admitted as follows:--- "It is correct that the elders of the plaintiffs did not execute any document in our favour. It is correct that we have not filed any case against the plaintiffs. It is correct that we are beggars and go here and there."
6. Learned counsel for the respondents when confronted with above position on the record contended that the First Appellate Court by virtue of Order XII, Rules 25 and 33, C.P.C. Can decide the matter, frame the issues and remand the case to the trial Court and no exception could be taken to such Appellate Court order. He has relied upon the following cases:
(1) North-West Frontier Province Government, Peshawar through Collector, Abbottabad and another v. Abdul Ghafoor Khan through Legal Heirs and 2 others (PLD 1993 SC 418).
(2) Messrs S.M. Yusuf & Bros. v. Mirza Muhammad Mehdi Poaya and Amanullah Kirmani (PLD 1965 SC 15).
7. "Order XLI, C.P.C., governs the institution and hearing of the appeals. Its rule 25 lays down: if the Court from whose decree the appeal was filed, was found to have omitted to frame or try any issue or determine any question of fact, the Appellate Court was vested with the power to formulate the issue and give a direction to the trial Court to record additional evidence and forward the same alongwith its findings to the Appellate Court.' The latter, after obtaining objections from both sides, could adjudicate upon the controversy. The need to give such direction to the trial Court would genuinely arise if the trial Court's finding was not found safe or some additional facts having a strong bearing on the merits of the case, which had gone unnoticed by the trial Court, were unearthed before the Appellate Court. Order XLI, Rule 25, C.P.C., upon its term though not applicable to a particular case yet the underlying principle and the procedure enrrisaged thereby regulating the way, for ascertaining the truth as to the actual aspect of the case, with reference to the evidence on the record, with necessary adoption, not forbidden by law, could be applied to the case. Application to the existing law to the new situation broadly covered by such law was within the interpretative power of the Court, as long as it did not travel beyond object of the statute.
8. Within this limitation there should be no bar to the exercise of such power if need be. It hardly needs any emphasis that the entire body of the procedural law was meant for advancement of the cause of justice and not to pose any technical difficulty in the way of the Court to unveil the truth and do complete justice between the litigating parties, for the administration of which alone it had been created. Provisions of Order XLI, C.P.C. Are not exhaustive."
9. There is no cavil with the law laid down by the Hon'ble Supreme Court but in the reported case it was the fraud which was claimed throughout. However, for that purpose in order to exercise power in a given matter, controversy between the parties must be real and as such be sustainable on record. The Courts also have inherent powers as has been laid down in the reported judgment but the Court will exercise such orders as may be necessary for securing the ends of justice and to prevent the abuse of the process of the Courts. But in the case in hand no such controversy rises. It is the case of defendants that no document was executed by the elders of the plaintiffs in their favour. Admittedly, the record of rights does not speak of any entry in favour of the defendants by way of gift. The gift is alleged to be seventy-five years earlier. Even in his cross-examination it had been stated by the defendants that the suit land was owned by the plaintiff elders who allowed them to sit and live in the same. In other words even in his deposition the element of gift is not available.
10. The learned counsel for the applicant states that the issues were framed by the trial Court and no attempt was made for introducing issue based upon gift. It is contended that the defendants deliberately waived the issue of gift. He further stated that such contention is reinforced as even in the memo. Of appeal no plea of gift was urged. It was only during the course of arguments such plea was urged and the First Appellate Court accepted such plea. According to him the applicants were taken by surprise. Even the learned counsel for the appellants before the First Appellate Court did not urge the plea to amend the memo. Of appeal and to urge the ground for non-framing of the issue on gift. This contention of the learned counsel for the applicant has force. The Courts should decide the case in accordance with law and based upon the pleadings and no party shall be taken by surprise by urging the plea not mentioned/urged in the memo. Of appeal. , However, if at all the party wishes to urge such plea the permission of Court should have been obtained for amending the pleadings which was not done in this case. Since the course not permissible in law was adopted by the respondents, as such the learned 1st Appellate Court could not have given the above finding and allowed appeal. The above-quoted findings of the 1st Appellate Court depict material irregularity in exercise of jurisdiction and it is declared as such.
11. The upshot of the above discussion is that on the face of record irregularity is apparent. This Revision Application is accepted and the order of the IInd Additional District Judge, Nawabshah is set aside and the order of Civil Judge, Kindiaro restored, with no order as to costs.