' The respondent served a notice upon the petitioner on 30-8-1984`calling upon him to remove structure that had been raised on the public street vesting in the respondents. On 30-8-1984 the petitioner filed a suit challenging the said notice. According to the plaint the petitioner is owner of a Shop in Naqi Market Nila Gumbad Lahore, described in detial in para. 1 of the plaint, having purchased it vide sale-deed 23-7-1974 including "Thara" that had also been covered by him by placing shutter thereon. According to the petitioner he had not encroached upon any land of the respondents and rather Thara is owned by him. Respondents in its written statement alleged that the petitioner had made encroachment on a part of the road by raising' construction of walls and three Pacca shops. Inter alia, the following issues were framed:--
(8) Whether the plaintiff is owner in possession of the Thara in question? OPP.
(9) Whether the impugned notice issued by the respondent is illegal, without jurisdiction and of no legal effect qua the rights of the. Plaintiff's? OPP.
' Evidence of the parties was recorded. Learned trial Court vide judgment and decree dated 9-4- 1989 decreed the suit. A first appeal tiled by the respondents was allowed by a learned Additional District Judge, Lahore, on 21-11-1990 and suit was dismissed.
2. Learned counsel for the petitioner contends that there is no evidence on record that his client has encroached upon any public road or land vesting in the respondent and as such the impugned judgment of the learned Additional District Judge cannot be sustained. Learned counsel for the respondents on the other hand has tried to support the impugned judgment and decree.
3. I have gone through the record appended with this civil revision, with the assistance of the learned counsel for the parties. I have already referred to the pleadings of the parties above. To my mind, the only question to be determined in this case was as to whether or not the petitioner has made encroachment on any land of the respondent Corporation. I find none of the learned Courts below have adverted to the said fact. On the other hand learned trial Court upon a reading of the sale-deed Exh.P.1 proceeded to hold the petitioner to be owner of the Thara while the learned Additional District Judge answered the same in negative, upon a reading of the sale document. I, therefore, find that there had been a mistrial and consequently failure of justice. This has occurred because of misreading of the pleadings on record by learned trial Court at the time of framing of the issue. Needless to state that primarily it is duty of the Court to frame correct issues reflecting controversy raised in the pleadings. This was not done and result is that real controversy between the parties has not been decided by any of the learned Courts below.
4. For the above discussion, this civil revision is allowed. The judgments and decrees of both the learned Courts below are set aside and the case is remanded to the learned trial Court. Both the parties shall appear before the learned Senior Civil Judge Lahore, on 21-11-2001, who shall in the first instance frame the following issues:- "Whether the plaintiff has encroached upon the public road or any land vesting in the defendants?
OPD?"
' The learned Senior Civil Judge shall then give an opportunity to both the parties to lead evidence on the said issue, with the defendants having right to begin and thereafter to decide the said issue alongwith other issues. No order as to costs.