' MUHAMMAD NAWAZ ABBASI, J.--- This direct appeal has been preferred against the judgment, dated 25-3-2004 passed by a Division Bench of the Peshawar High Court, Peshawar in a Regular First Appeal arising out of a judgment,. Dated 30-9-2000 through which a suit for declaration and partition of joint land filed by the respondents was dismissed by Civil Judge/Ilaqa Qazi, Dargai.
2. The land, subject-matter of the suit is situated in village PirkhailTehsil Buttkhaila District Malakand. The suit was filed seeking declaration that the parties being belonged to common ancestor, were joint owners of the suit-land in equal shares, and as consequential relief, the partition of the land was sought. The appellants contested the suit on various grounds and the learned trial Judge in the light of pleadings of the parties, having framed a number of issues, recorded the evidence and ultimately dismissed the suit. The respondents, being aggrieved of dismissal of their suit by the trial Court, filed a Regular First Appeal in the Peshawar High Court, Peshawar and a learned Division Bench of the High Court allowed the appeal vide impugned judgment in the following terms:--- "We are, therefore, of the view that the learned trial Court not only failed to frame proper issues but also failed to appreciate the evidence available on record properly, hence we allow the appeal in hand, set aside the impugned judgment and decree and remand the case back to the learned trial Court with directions to invite the evidence of parties on the issues:---
(i) Whether the property in dispute was owned by Khan Baig Baba?
(ii) Whether the property in dispute stands privately partitioned between the sons/legal heirs of Khan Baig Baba?
Since the parties have been locked up in litigation for the last so many years, therefore, we direct the learned trial Court to conclude the case as expeditiously as possible. No unnecessary adjournment be granted to either of the parties on any pretext. Parties are directed to appear before the learned trial Court on 29-3-2004. Office is directed to remit the case to the Court concerned. Parties shall bear their own costs."
3. The basic question requiring determination in the suit would relate to the right of ownership of the parties in land through inheritanceand the authenticity of pedigree-table on the basis of which the respondents while setting up their claim of co-sharer in the suit-land pleaded that the land was originally owned by Khan Baig, who was common ancestor of the parties and on his death the same devolved upon his two sons namely, Qutab Mian and Rafiq Mian. In the pedigree-table, the present appellants (defendants in the suit) were described as successors in interest of Qutab Mian whereas Rafiq Mian was shown predecessor-in-interest of the respondents (plaintiffs in the suit), The first contention urged on behalf of the appellants before the trial Court and also in appeal before the High Court was that in Malakand Agency, settlement of land having not taken place, the right of respondents/plaintiffs in the land was not ascertainable on the basis. Of pedigree-table produced by them in evidence which was got prepared on the oral information collected from the elders and would have no legal force. The second contention was that notwithstanding the declaring of sections 28 and 144 of the Limitation Act, 1908 repugnant to the Injunctions of Islam by the Federal Shariat Court, their title was matured through adverse possession much before the filing of suit and the pronouncement of judgment by the Federal Shariat Court and that the suit being barred by limitation, was not maintainable. The third assertion of the appellants was that earlier a similar suit filed by the respondents was dismissed in 1978 and the second suit on the same subject was not competent. The respondents, on the other hand, contended that the parties being belonged to Pir Khel Tribe of Malakand like other Yousufzai Tribes, would be guided in the matter of inheritance by the pedigree-table brought on record, the authenticity of which was not challenged by producing any documentary evidence in rebuttal except the oral assertion, therefore, the same would be the most reliable document to determine the rights of the parties in the land in absence of settlement of land in Malakand Agency. It was strongly contended that mere continuous possession would not amount to oust a co-sharer/co-owner and notwithstanding the exclusive possession of a co-sharer/co-owner he, is considered in constructive possession of the property on behalf of all co-sharers.
4. The main appeal is not fixed for today in cause list and only the application (C.M.A. No,1301 of 2004), through which the appellants, pending disposal of appeal have sought suspension of the operation of impugned judgment, is fixed. The learned Advocate Supreme Court representing the appellants is not present and learned Advocate-on-Record in support of this miscellaneous application, has argued that the framing of additional issuesby the High Court and remand of case to the trial Court for decision afresh after recording further evidence, was not at all justified and in that the impugned judgment would not be sustainable in law. We having considered the contentions raised by the learned Advocate-on-Record in support of the miscellaneous application in the light of evidence on record find that the same arguments would be advanced for disposal of main appeal and when the learned Advocate-on-Record was asked to address the Court on main appeal, he reluctantly submitted that he was not in a position to take responsibility of arguing the main appeal in absence of the counsel representing the appellants but on pointing out to him that the Court while disposing of an ancillary matter, can also dispose of the main case and under the rules in absence of Advocate Supreme Court, the Advocate-on-Record of the concerned party has to assist the Court, he candidly conceded the legal position.
5. The non appearance of a counsel in a matter fixed before the Court, without compelling reason and prior intimation except in exceptional circumstances, is not justified and in any case, the presence of Advocate-on-Record is sufficient for the purpose of disposal of a case. The pleading of the parties would reveal that the dispute in the suit was confined only to the extent of declaration of right of inheritance of the parties in the property owned by Khan Baig and the mode of its partition, we, having considered the nature of factual controversy and the justification of passing the remand order by the High Court, would not take any exception to the said order and further pendency of appeal before this Court being not in the interest of parties, would prefer to dispose of the main appeal along with the miscellaneous application.
6. The learned Advocate-on-Record has vehemently contended that there was sufficient evidence available on record to attend and decide the controversial questions of facts and pronounce the judgment in appeal but the learned Judges in the High Court, unnecessarily having framed the additional issues, remanded the case for recording of further evidence without realizing that there being no chance of further improvement of the case of either party, such an exercise, would be in futility. The argument is not convincing to impress that remand order was not justified in the present case. The decision on the issue relating to the partition of land being depending upon the decision of primary question regarding the entitlement of the parties in the property owned by Khan Baig, would not be possible without the determination of their right in the suit property. The perusal of the record would clearly suggest that on the basis of available evidence, neither the correct factual position vis-a-vis, the respective claim of the parties in the suit would be ascertainable nor the disputed questions of fact could be properly answered. It appears that the learned Judges in the High Court having taken notice of the deficiencies and lacunas in the evidence, for decision of the fundamental questions and proper adjudication of dispute between the parties deemed it necessary to frame the additional issues and remand the case to the trial Court for fresh decision after recording of evidence on the said issues. We, having examined the matter in detail are also of the view that framing of the additional issues and recording of further evidence was essential for effective decision of controversial pleas taken by the parties in their pleadings in the suit. This is settled principle of law that the remand order, as a general rule, would not be objectionable if the important and vital point arising out of the controversy in the case, has been left unattended and in the present case, we feel that the parties have failed to bring on record the adequate reliable evidence for giving a proper verdict on the disputed question of fact of fundamental importance in the suit.
7. We having considered the contentions of learned Advocate-on-Record in the light of evidence on record, would take no exception to the remand order which was in consonance to the provisions of Order 41, rules 23 and 24, C.P.C. And find that neither the impugned judgment is suffering from any legal infirmity or defect nor any substantial question of law is involved in this appeal for interference of this Court.
8. For the foregoing reasons, this appeal having no force is dismissed. There will be no order as to costs.