' I intend to decide the following revisions petitions by one consolidated judgment having similar facts and law arising out of the consolidated judgment of the Courts below:--
(i) C.R. No.785 of 1998 (ii) C.R. No.784 of 1998.
2. The brief facts out of which the aforesaid revision petitions arise are that the original owner of the land measuring 45 Kanals, 18 Marlas Ali Sher has allegedly sold the land in question to Kanwar Khalid Chaman vide Mutation No.1686 for a consideration of Rs.60,000, which was attested by the Revenue Officer on 25-2-1990. The petitioner Kanwar Khalid Chaman has paid the whole consideration to Ali Sher. Possession of the land in dispute has been handed over allegedly to the petitioner Kanwar Khalid Chaman. Manzoor Ahmad and others predecessor in interest of the original owner Ali Sher filed a time-barred appeal before the Collector concerned against the aforesaid mutation on 7-11-1990 on the ground that the said mutation was got sanctioned by Kanwar Khalid Chaman by fraud and misrepresentation, which was accepted by the Collector vide order, dated 18-5-1991 and set aside the aforesaid Mutation No.1686 dated 25-2-1990. The petitioner Kanwar Khalid Chaman being aggrieved filed a suit for declaration against the present respondents Manzoor Ahmad and others predecessor-in-interest of the original owner Ali Sher. The respondents also filed a suit for recovery of Rs.20,000 against the petitioner on the ground that the petitioner has taken away the trees over the land in question in the Court of learned Civil Judge 1st Class, Chunian. The learned trial Court consolidated both the suits. Both the parties filed written statements, controverted the allegations levelled in the plaint.
Out of the pleadings of the parties, the learned trial Court framed the following issues:--
(1) Whether this suit is false, frivolous and mala fide? OPD
(2) Whether this Court has no jurisdiction to try this suit? OPD
(3) Whether the impugned order of the. Collector Chunian dated 18-5-1991 of cancellation of Mutation No.1686 is illegal, void and inoperative against the rights of the plaintiff? OPD
(4) Whether the plaintiff is entitled to the decree of declaration and permanent injunction as prayed for? OPP
(5) Whether the plaintiffs in the connected suit and the defendants in this suit are entitled to the decree of Rs.20,000 as prayed for? OPP
(6) Whether the plaintiffs in the connected suit and the defendants in this suit are entitled to recover special costs from the plaintiffs? OPP
(7) Relief.
' The learned trial Court decreed the suit of the petitioner and dismissed the suit of the respondents vide judgment and decree dated 10-1-1996. The respondents being aggrieved filed two appeals before the learned Additional District Judge, Pattoki, who accepted the appeals and reframed issue No.4 in the following terms:-- "Whether Ali Sher predecessor of the defendants entered into a valid transaction of oral sale with plaintiffs of the land described in paragraph No.2 of the plaint? OPD ' Consequently, remanded the cases to the trial Court to decide the cases afresh after recording the evidence of the parties. The petitioner being aggrieved filed the aforesaid civil revisions before this Honourable Court.
3. The learned counsel of the petitioner submits that learned Additional District Judge, erred in remitting the cases for afresh decision merely because certain issue was not framed by the learned Civil Judge, which is not in consonance with the law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:-- ' The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others PLD 1971 SC 82; Fazal Muhammad Bhatti v. Mst. Saeeda Akhtar and 2 others 1993 SCM R 2018; Muhammad Anwar Transporter v. Arshad Jillani PLD 1988 Lah.
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' He further submits that Ali Sher original owner is still alive, therefore, respondents have no lawful authority to challenge the sale executed by the original owner in favour of the petitioner unless and until the original owner is alive but this fact was not considered by the First Appellate Court in its true perspective and the judgment of the First Appellate Court is also not in accordance with the Injunctions of Islam. In support of his contention, he relied upon Mst. Hameeda Begum v. Mst. Murad Begum and others PLD 1975 SC 624.
4. The learned counsel of the respondents submits that the whereabouts of the original owner is not known to any body before 12/13 years before sanctioning of the mutation in question in favour of the ,petitioner on behalf of Ali Sher, therefore, the First Appellate Court was justified to reframe issue No.4. He further submits that it is the duty and obligation of the Courts to frame proper issues and omission of counsel of the parties do not debar them to agitate the matter before the higher Courts, therefore, judgment of the First Appellate Court is in accordance with the mandatory provisions of Civil Procedure Code and the judgments cited by the learned counsel of the petitioner are distinguished on facts and law.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6. It is better and appropriate to reproduce original issue No. 3 and substituted issue No.4 to resolve the controversy between the parties:- ' Issue No.3 ' Whether the impugned order of the Collector Chunian dated 18-5-1991 of cancellation of Mutation No.1686 is illegal, void and inoperative against the rights of the plaintiffs? OPD ' Issue No.4 "Whether Ali Sher predecessor of the defendants entered into a valid transaction of oral 'sale with plaintiffs of the land described in paragraph No.2 of the plaint? OPD In case the aforesaid issues are put in a juxta-position then it is crystal clear that issue No.3 covers the consequences as reframing issue No.4 meaning thereby the First Appellate Court erred in law to frame substituted issue No.4. It is settled principle of law that Courts are bound to pass orders after application of judicial independent mind as the law laid down by the Honourable Supreme Court in Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173. Even the public functionaries are now duty bound to pass the order after application of their independent mind with reasons after addition of section 24-A in the General. Clauses Act as the law laid down by the Honourable Supreme Court in the following judgments:-- ' Messrs Airport Support Service v. The Airport Manager, Karachi Airport 1998 SCM R 2268 and Zain Yar Khan v. The Chief Engineer CR$C WAPDA and others 1998 SCM R 2419.
' It is pertinent to mention here that the First Appellate Court has substituted issue No.4 without application of mind, which is not in accordance with the law laid down by the superior Courts in the following judgments:-- ' The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others PLD 1971 SC 82; Fazal Muhammad Bhatti v. Mst. Saeeda Akhtar and 2 others 1993 SCM R 2018; Muhammad Anwar Transporter v. Arshad Jillani PLD 1988 Lah.
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It is also settled principle of law that in case the First Appellate Court has decided the case in violation of the law laid down by the superior Courts then it is material irregularity and material illegality committed by the First Appellate Court and this Court has ample jurisdiction to interfere in the findings of the First Appellate Court while exercising power under section 115, C.P.C. As the law laid down by the Honourable Supreme Court in the following judgments:-- ' Kanwal Nain's case PLD 1983 SC 53 and Shaukat Nawaz's case 1988 SCM R 851.
7. In view of what has been discussed above, the impugned judgment of the First Appellate Court is set aside meaning thereby the appeals filed by the respondents shall be deemed to be pending adjudication before the First Appellate Court. Parties are directed to appear before the First Appellate Court on 27-5-2004, who is directed to decide the case afresh on merits after proper appreciation of evidence on record positively within eight months after receiving the order of this Court. Parties and their counsel are directed to cooperate with the First Appellate Court so that the matter may be finalized within the stipulated period. In case any of the parties would not cooperate with the First Appellate Court then the First Appellate Court is directed to invoke the penal provisions against that party in accordance with law so that the matter may be finalized within the prescribed period.