' The suit of the plaintiffs Mir Sardar Khan and others for declaration that plaintiffs Nos.1 to 4, being the legal heirs of Mir Sardar Khan, are owners of House Khana Shumari No,10, while defendants Nos.1 to 16 are tenants at rent under them while plaintiffs Nos.5 to 7 being the legal heirs of Mir Ghulam, are the owners of House Khana Shumari No,13 and defendants 17 to 29 are tenants at rent under them and for recovery of Rs,3,600 as rent (Khak Shora) for a period of nine years from 1-1-1981 to 31- 12-1989 at the rate of Rs,200 per annum i,e, Rs,1,800 against defendants-respondents Nos.1 to 16 regarding House No,10 and Rs,1,800 against defendants Nos.17 to 29 in respect of House No,13 was decreed to the extent that plaintiffs Nos.5 to 7 were declared as owners and mortgagors of House No,13 while the rest of the suit of the plaintiffs was dismissed vide judgment and decree, dated 13- 2-1995 of Civil Judge, Bannu. Appeal filed by Muhammad Yaseen Khan and others challenging the vires of the said judgments and decrees before the Court of the Additional District Judge, also failed vide judgment and decree, dated 16-5-1995 obliging Muhammad Yaseen etc. Defendants to challenge both the judgments and decrees in this Court, in the instant civil revision petition under section 115, C.P.C.
3. Dispute regarding House Khana Shumari No,10 having been patched up between the parties, it is no more bone of contention, inter se the parties, the dispute remains with regard to House Khana Shumari No,13. Both plaintiffs Nos.5 to 7 in their plaint and defendants Nos.17 to 29 in their written statements have claimed the ownership of the suit house Khana Shumari No,13. The plaintiffs have asserted that the said house was the ownership of their predecessor-in-interest while defendants Nos.17 to 29 were their tenants at rent (Khak Shora). Curiously enough, however, the learned trial Judge travelled beyond the pleadings of the parties and while declaring plaintiffs Nos.5 to 7 as the owners of suit house Khana Shumari No,13 held them to be the mortgagors under Khan Sherin predecessor-ininterest of the defendants which was not the case of either party. On the basis of the pleadings of the parties besides other issues the trial Court framed Issue No,12 to the effect:-- "Whether plaintiffs are owners of the suit property and defendants Nos.1 to 16 are tenants of plaintiffs Nos.1 to 4 on payment of 'Khak Shora' and defendants Nos.17 to 29 are tenants of plaintiffs Nos.5 to 7 on payment of Khak Shora'."
' No issue whatsoever with regard to the mortgage of the suit property was framed, obviously having not been agitated by either the plaintiffs or the defendants. It is well-settled that where a material point not raised in the pleadings comes to the notice of the Court during the course of evidence, the Court may frame an issue regarding it and then try it. The object of framing issues is with a view to ascertain the real dispute between the parties by narrowing down the area of conflict and determining where the parties differ. Since, in this case both the Courts below have failed to appreciate the real issue in controversy regarding ownership of suit House Khana Shumari No,13 both parties claiming ownership, in holding plaintiffs Nos.5 to 7, besides the owners, as mortgagors under defendants Nos.17 to 29, in my opinion the Courts below have travelled beyond the pleadings of the parties. Once specific issue was famed regarding ownership of the suit house Khana Sumari No,13 by plaintiffs 5 to 7 and defendants 17 to 29 having been alleged to be tenants at rent (Khak Shora) under them, the trial Court should have confined itself to the spirit of the issue so framed.
Consequently, while accepting this civil revision petition I set aside the judgments and decrees of the two Courts below and remand the case to the trial Court with the direction to decide the suit afresh stricitly in accordance with the pleadings of the parties regarding the ownership of the disputed House Khana Shumari No,13 on the basis of the evidence produced by the parties.