MUNAWAR AHMAD MIRZA, J.---This appeal by leave of the Court, is directed against judgment dated 7-3-1994 passed by High Court of Baluchistan, Quetta, whereby on setting aside the judgments and decrees dated 28-10-1992 and 16-5-1993 passed by Senior Civil Judge, Quetta, and Additional District Judge-I, Quetta, respectively, the case has been remanded to trial Court for drawing fresh proceedings and its disposal according to law after recording evidence.
2. Brief facts giving rise to present appeal are that towards 21st June, 1987 respondents Nos. l and 2 (Nasir and Haji Deru Khan) filed suit for declaration and injunction before Senior Civil Judge, Quetta, claiming possession of land bearing Khasra Nos.300, 301 and 302 measuring 38 rods and 19 poles situated in Mahal and Mouza Baghiar, Tappa Alizai, Tehsil and District, Pishin. This land undisputedly belonged to the Central Government as per Fard-e-Haqqiat prepared during year 1971-72. It is the case of respondents Nos. l and 2 that they were recorded tenants of abovementioned area of land, but appellants through manipulation and in collusion with revenue authorities got themselves recorded as Mourosi tenants, taking advantage of Arbitration Award given by Sardar Khair Muhammad Tareen in year 1983. Respondents had also pleaded ownership relating to 'suit land' on the basis of adverse possession. Relief claimed in the suit is, however, reproduced below:- "It is humbly prayed that this Hon'ble Court may be pleased to grant decree of declaration in favour of plaintiffs and against the defendants to the effect that the first plaintiff is owner of the property on account of his adverse possession of land bearing Khasra Nos.300 to 302, measuring 38 rods and 19 poles, situated in Mahal and Mouza Baghiar, Tappa Alizai, Tehsil Pishin, or in the alternate declare that the plaintiffs are Bazgars of the 8th defendant and their names are liable to be entered as such in the columns of Bazgars in the revenue record. Declare mutation No.72 dated 20- 3-1985 to be without any lawful authority and direct the 7th defendant to enter the names of the plaintiffs in the revenue record in place of the predecessors-in-interest of the defendants 1 to 6.
Cost of the suit may also be awarded. "
Appellants contested the suit and filed written statement on 17th March, 1986. Legal right or factum of adverse possession asserted by respondents was vehemently repudiated.
3. Trial Court out of the pleadings framed following issues:-
(1) Whether the suit is bad for mis-joiner of the parties?
(2) Whether the plaintiffs are owners of the land in dispute on account of adverse possession?
(3) Who is in possession of the land in question?
(4) Whether the mutation in question is made without lawful authority? If so to what effect?
(5) Whether the plaintiffs are entitled to the relief claimed for?
(6) Relief?
After examining evidence and consideration of material on record, Senior Civil Judge dismissed the suit vide judgment and decree dated 20th October, 1992.
4. Being aggrieved respondents had preferred Civil Appeal No. 136 of 1992 which came up for hearing before Additional District Judge 1, Quetta. This appeal was, however, dismissed by means of judgment rendered on 16th May, 1993. Thereafter abovereferred judgments/decrees of to Courts below was challenged before High Court of Baluchistan through Civil Revision No.207 of 1993.
Learned Single Judge in Chamber vide judgment dated 7-3-1994 partly accepted the petition and setting aside the impugned judgments remanded the case to trial Court for recording evidence afresh. It was observed that issue regarding adverse possession was incorrectly framed and did not arise from the pleading. The learned Judge ruled that award of the arbitrator which was given during 145 Cr.P.C. Proceedings drawn between the parties, could not form basis for change in revenue entries. Besides, claim of appellants on the basis of previous entries was improperly ignored, effecting validity of judgments/decrees challenged before the High Court. For convenience operative portion of said decision is reproduced hereunder:- "Be that as it may, these material questions were dealt with in a casual manner and material irregularity was caused to the petitioners. Although there is concurrent finding of fact but since both the Courts were misled by the fact of adverse possession, therefore, in exercise of revisional jurisdiction this Court has got the discretion to interfere because material irregularity has been committed by the to Courts below. No evidence has come on record as to who was in possession prior to 1985. It has come on record that the mutation in favour of predecessor-in-interest of the present respondents had been entered on the basis of the award of the sole arbitrator. There is also material on record to indicate that such award was given in proceedings under section 145 Cr.P.C. Privately by Sardar Khair Muhammad Tareen and it was never made rule of the Court, as such how could that form basis, is a question to be determined by the to Courts below.
For all such reasons the petition is accepted. Both the judgments and decrees dated 28-10-1992 and 16-5-1992 passed by Senior Civil Judge, Quetta and learned Additional District Judge I, Quetta, respectively are set aside but the case is remanded to senior Civil Judge, Quetta, for fresh trial after providing opportunity to the parties to lead evidence and after hearing them dispose it of in accordance with law."
5. Appellants were dissatisfied from the judgment passed by High Court of Baluchistan and assailed the same by way of petition for leave to Appeal No. 31-Q of 1994. This Court, however, granted leave on 20th November, 1994. The operative portion is reproduced below for ready reference:- "At the outset Mr. Tariq Mehmood, Advocate Supreme Court, the learned counsel for the petitioners, contended that the respondents Nos. l and 2 had taken different stand in the High Court than taken by them in their plaint before the trial Court and the Appellate Court. He took us through the plaint and the relevant portions of the judgments passed by the learned Senior Civil Judge, Additional Sessions Judge-I, Quetta and the High Court of Baluchistan. In their plaint the respondents have claimed ownership of the land in dispute mainly on the basis, inter alia, of adverse possession. The question whether the to private respondents, who were petitioners in the High Court, can claim ownership on the basis of adverse possession. Besides, whether concurrent findings arrived at by the to Courts below could beinterfered with by the High Court in its revisional jurisdiction under section 115 C.P.C. We are, therefore, inclined to grant leave to appeal to examine the points raised in the petition. Till disposal of the appeal the proceedings before the Court of learned Senior Civil Judge, Quetta, are stayed. "
6. Firstly it may be seen that learned Single Judge in Chambers has fallen in serious error about law and facts by interfering with judgments of to Courts below on the observation that issue regarding adverse possession could not have been framed. It may be seen that respondents in the body of plaint and prayer clause has specifically asserted title over the property on the basis of adverse possession for a period of beyond 60 years. However, alternatively relief was sought for recording- them in column of Bazgars by declaring mutation No.72 dated 20-3-1985 to be without lawful authority. Undisputedly the settlement of issues is regulated by order XIV C.P.C. Court is bound to frame issues primarily on the pleadings of the parties or examining the parties within the purview of Order X C.P.C. Or documents placed on the record alongwith pleadings. It would be appropriate to mention here relevant provisions for framing issues after pleadings are brought on record or after recording of better statements of the parties:-- Order XIV Settlement of issues and determination of suit on issues of law or on issues agreed upon.
1.-(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.
(2) Material proposition are those propositions of law or fact which a plaintiff must allege in order to sue or a defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
(4) Issues are of to kinds: (a) issues of fact, (b) issues of law.
(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.
(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.
2. Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined.
3. The Court may frame the issues from all or any of the following materials:-
(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties;
(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;
(c) the contents of documents produced by the either party.
4. Where the Court is of opinion that the issues cannot be correctly framed without the examination of some person not before the Court or without the inspection of some document not produced in the suit, it may adjourn the framing of the issues to a future day, and may (subject to any law for the the being in force) compel the attendance of any person or the production of any document by the person in whose possession or power it is by summons or other process."
7. Undisputedly there was positive assertion for claiming title and relief on the basis of adverse possession. Therefore, it was imperative for the trial Court to frame issue in that behalf. When Mr. Basharatullah, Senior Advocate Supreme Court, for private respondents, was confronted with aforesaid legal position he was, not able to defend impugned judgment on this score. However, he attempted to argue that eventually after recording entire evidence the real controversy between the parties related to entries in the relevant revenue record. Be that as it may, conclusions of learned Single Judge of the High Court regarding defect in framing issues are not tenable.
8.Secondly, perusal of impugned judgment discloses that learned Single Judge of the High Court in Chambers had laboured under the impression that arbitration award forming basis for revenue entries; has been given by Sardar Khair Muhammad Tareen (sole arbitrator) during proceedings under section 145, Cr.P.C. This fact is specifically mentioned in para. 3 and concluding portion of the impugned judgment. Learned counsel for the parties have stated before us that this position is clearly incorrect. The record reflects that award, which was drawn in year 1983, had no nexus with 145 Cr.P.C. Proceedings. Needless to say that award by the arbitrator, which admittedly was not made rule of the Court, has its efficacy to the extent permissible under law, only amongst parties to said Award. It is well settled that if arbitration award is not made rule of the Court but same has been acted upon by mutual consent of the parties, same can be legitimately defended in the proceedings wherever challenged. Observations contained in case of Ch. Muhammad Saleem v.
Mian Muhammad Akram and others (PLD 1971 SC 516) is relevant and quite instructive for adopting above view point. It would be pertinent to mention here, that learned counsel for appellants from available record was not able to show whether plaintiffs/respondents were signatory to agreement for arbitration or award. Therefore, irrespective of applicability of award amongst parties, the same cannot lawfully affect rights of plaintiffs/respondents, who were apparently not party to any such agreement. Thus it is obvious that terms of Award would not adversely affect rights of plaintiffs/respondents.
9. Thirdly, Mr. Tariq Mehmood, learned counsel for appellants, greatly stressed that plaintiffs/respondents in the memo of appeal filed before High Court challenging findings of to Courts below; did not raise any objection regarding failure to provide opportunity of leading evidence. Learned counsel for appellants emphatically urged that impugned judgment directing remand without request of either party negates mandatory provisions of law.
There is no gainsaying the fact that powers of appellate Court pertaining to remand of cases are contained in Order XLI, Rules 23, 23-A and 25 of C.P.C. The same procedure and principle mutatis mutandis extends to Courts exercising revisional jurisdiction. For better appreciation, it would be necessary to reproduce here said provisions:- "23. Remand of case by appellate Court. Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal.
The appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
23-A. Where the Court, from whose decree an appeal is preferred, has disposed of the case otherwise than on a preliminary point and the decree is reversed in appeal, and a re-trial is considered necessary, the appellate Court shall have the same powers as it has under Rule 23.
24. ...........................................................................
25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from. Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits the Appellate Court may, if necessary, frame issues and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor."
Bare perusal of above provisions disclose that rule 23 deals with cases where decree of trial Court is reversed on preliminary point and cases sent back for adjudication on merits. Similarly Appellate or revisional forums, on detecting material irregularity or omissions of the trial Court about framing of issues necessary for deciding real controversy or justifiable reasons patent on record may remand the case with appropriate directions, including recording of additional evidence. Mr. Basharatullah, learned counsel for respondents could not dispute settled legal position regulating remand conceding that impugned judgment was not covered by afore referred Rules 23, 23-A and 25 of C.P.C. It was, however, contended that directions made in the impugned judgment regarding remand of cases for recording further evidence was deemed to have --been made within the scope of section 151, C.P.C. It may be seen that when specific provisions exist, normally general or residuary provisions are not resorted to. Remand of the case is not a routine matter, it should be adopted only when compelling circumstances exist, because it results in unnecessary procrastination of proceedings. Besides, when none amongst parties pleaded remand, apparently learned Single Judge of the High Court acted with material irregularity by deferring disposal of dispute or remanding the case for additional evidence on its own motion.
10. It may also be pointed out that when evidence has been adduced by the parties and sufficient material exists for the Court to finally decide controversy, in such eventuality instead of remanding the case it is desirable to settle issues and pronounce judgment on merits, as contemplated by Order XLI Rule 24,, C.P.C., which is reproduced below:- "24. Where evidence on record sufficient, Appellate Court may determine case finally. Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds."
This principle has been dealt with at numerous occasions and some reported judgments are mentioned below:--
(1) 1996 SCM R 230 (Chairman, WAPDA v. Gulbat Khan).
(2) 1993 SCM R 216 (Arshad Ameen v. Swiss Bakery).
(3) 1983 SCM R 133 (Sher Muhammad v. Ghulam Ghous)
(4) 1976 SCM R 388 (Nasir Ahmad v. Khuda Kakhsh)
(5) 1975 SCM R 221 (Fateh Ali v. Pir Muhammad)
Now considering above factors, when evidence has been led by parties and case is ripe for final disposal we feel it proper to examine merits and resolve the controversy on the existing record.
11. Next, looking to merits; basic grievance of the plaintiffs/respondents requiring adjudication, would be whether they were duly recorded as tenants of Central Government, in previous revenue Jamabandis of year 1972 and have been substituted by incorporating names of petitioners through manipulation by way of mutation No.72 attested on 20-3-1985, relying upon award of arbitrator namely, Sardar Khair Muhammad Tareen.
Learned counsel for plaintiffs/respondents was not able to show any document which may positively disclose entries of Revenue Record favouring plaintiffs/respondents any the prior to year 1985. Copy of Jamabandi relating to Khasra Nos.300, 301 and 302 comprising of three Qitats measuring 38 rods 19 poles available on record of original case which is exhibited as Ex.D/3 and part of Exh.D-1/E relatable to 'suit land' clearly belongs to ancestors of the appellants. However, names of plaintiffs/respondents have been recorded in other areas of the land. On examining available material with assistance of learned counsel for parties, we have noticed that documents pertaining to revenue entries do not support stand of plaintiffs/respondents. P.W.1 Muhammad Saeed, P.W.2 Pir Dost and P.W.3 Haji Jaafar have tried to show cultivatory possession of respondents on certain area of land, but details of Khasra number concerning said land has not been mentioned. Therefore, testimony of these witnesses at best suggests possession over certain, area of land which is obviously not identifiable. Respondent No. l Nasir in his statement recorded by trial Court on 13-2-1992 has deposed about uniterrupted possession over 'suit land' for more than 60/70 years. He expressed that mutation was carried out in favour of Abdul Rauf and Bahaw-ud-Din, who were dead long before. No document has at all been produced by him which may suggest existence of entries in favour of respondents prior to year 1985. Parties were factually allowed fair opportunity of leading evidence, by the trial Court. It is settled principle that appellate or revisional authorities cannot at in favour of either party, to filup lacunae.
Another aspect which needs to be mentioned here relates to scope of revisional jurisdiction exercisable by the High Court under section 115 C.P.C. In the instant case there is concurrent finding of facts of to Courts below wherein all aspects have been appropriately dealt with. Evidently the scope of revisional jurisdiction is curative and narrower, which can be appropriately invoked where subordinate forums have committed jurisdictional error or misread the evidence or ignored material aspects affecting very root of the case or suggest perversity. It may be seen that scope and authority exercisable by revisional forums has been elaborately dealt with in case of Haji Muhammad Din v. Muhammad Abdullah (PLD 1994 SC 291). Relevant observations are reproduced below: "It is well-settled law that a concurrent finding by to Courts below cannot4be disturbed by the High Court in second Civil Appeal much less in 'exercise of the revisional jurisdiction under section 115, C.P.C., unless the Courts below while recording the finding of fact have either misread the evidence or have ignored any material piece of evidence on record or the finding of fact recorded by the to Courts below is perverse. The jurisdiction of the High Court to interfere with the concurrent finding of fact in revisional jurisdiction under section 115. C.P.C. Is still norrower. The High Court to exercise of its jurisdiction under section 115, C.P.C. Can only interfere with the orders of the subordinate Courts on the grounds, that the Court below has assumed jurisdiction which did not vest in it, or has failed to exercise the jurisdiction vested in it by law or that the Court below has acted with material irregularity effecting its jurisdiction in the case (see Umar Dad Khan v. Tilla Muhammad Khan, PLD 1970 SC 288), Muhammad Bakhsh v. Muhammad Ali, 1984 SCM R 504, Muhammad Zaman v. Zafar Ali Khan PLD 1986 SC 89 and Abdul Hameed v. Ghulam Muhammad 1987 SCM R 1005). Under this jurisdiction the High Court only corrects the jurisdictional errors of subordinate Court the fact that the High Court while reappraising the evidence on record reached a conclusion different from those arrived at by the to Courts below, could never be a ground justifying interference with a finding of fact much less a concurrent finding recorded by the to Courts below on the basis of evidence produced before them, in exercise of its revisional jurisdiction under section 115, C.P.C."
Similar view has been taken by this Court in case of Sh. Muhammad Bashir Ali v. Ghulam Mohi-ud- Din (1996 SCM R 813). Relevant observations are as under:-- "As pointed out by this Court in Muhammad Umar Beg's and Kanwal Nain's cases supra, revisional powers under section 155, C.P.C. Are primarily intended for correcting errors made by subordinate Courts in exercise of their jurisdiction. In Kanwal Nain's case it was, however, pointed out that ordinarily erroneous decisions of fact are not revisable, except in cases where decision is based on no evidence or inadmissible evidence or is so perverse that gave injustice would result therefrom.
The above enunciation of the scope of the revisional power vesting in the High Court clearly shows that no interference was called for in this case and upsetting the conclusions of the Courts below virtually on the question of fact by way of re-examination of evidence at revisional stage it has overstepped the limits or its jurisdiction."
On consideration of above principles we feel that in the circumstances of present case, learned High Court while interfering with concurrent finding of fact had overstepped its jurisdiction.
12. Lastly on thorough scrutiny of entire oral and documentary evidence we have no hesitation in concluding that plaintiffs/respondents" could not establish their status as recorded tenants of Central Government concerning 'suit land' during year 1972 or any the prior to year 1985. The trial Court as well as appellate Court had correctly appreciated available record and conclusions drawn by said forums were based on sound reasonings.
As a sequel to above discussion we feel inclined to hold that impugned judgment directing remand of the case is contrary to law. Resultantly appeal is accepted, and by setting aside impugned judgment, the decrees granted by Senior Civil Judge and Additional District Judge-I, Quetta, are hereby restored.
Parties are, however, left to bear their own costs.