1990CLC1883 (PLP)

(4) To what share the defendants are entitled in the suit property? (5) Whether the suit is bad for want of Court‑fee? OPD (6) Whether the plaintiff is not in possession of the suit property? OPD. (7) Whether the houses Nos.117 and 121 are in the name of the defendants? OPD (8) Whether the suit is incompetent in its present form? OPD (9) Whether any suit is pending regarding House No.117 in the Court of Civil Judge, Bannu, if so, its effects? OPD (10) Whether the defendant No.38 is bona ride purchaser of the House No. 117? OPD (11) Whether the suit property is not liable to partition? OPD (12) Relief

2. The learned trial Judge, after the parties had adduced the evidence, took up issues Nos.7, 9 and 10 together and held that House No.117 stands excluded from the partition, in that it was admittedly purchased by Sher Bahadur Khan, defendant No.38. The learned trial Judge, however, did not concede to the plea that House No.121 belonged to the answering defendants and decided this issue accordingly. On issues Nos.l to 4, 6 and 11, it was held that defendants Nos.63 to 103 were not concerned in any manner with the disputed property excepting their occupation and that they can be ejected separately through legal means. As a result of these findings, the learned trial Judge granted a preliminary decree for possession by partition of 2/3rd share against the defendants Nos.1 to 62 in the disputed property excepting that like well, mosque, hujra etc. which were ordered to remain joint and excluded property No.117 from the preliminary decree.

3. Four Civil Appeals Nos. 194/13, 195/13, 196/13 and 239/13 of 1989 instituted respectively by Amir Sher Bahadur Khan, Abdul Jabbar Khan and 8 others, Amir Shahada Khan and 35 others and Kamil Habib and his two brothers, against the preliminary decree for possession by partition passed by the learned Senior Civil Judge, Bannu, were jointly heard by the learned Additional District Judge, Bannu. The learned Appellate Court, after hearing the learned counsel for the parties and perusal of the material placed on the file, accepted all the four appeals, set aside the impugned judgment and the decree of the trial Judge and remanded the cases to him "with the directions that the plaintiff respondent No.l shall amend his plaint in the trial Court by excluding houses Nos.72 and 117 from the disputed property and he shall also give the entire details of each and every property with its nature and boundaries and the names of the occupants thereof and thereafter the trial Court to proceed and decide the matter once for all

4. The plaintiff has come up in revision against the order of remand passed by the learned Additional District Judge.

5. Haji Sadullah Khan Mian Khel, the learned counsel appearing on behalf of the petitioner, contended that the findings of the learned Appellate Court that the plaint should be amended because property Nos.72 and 117 have been wrongly included in the disputed property, are not sustainable, in that this lacuna could have been easily remedied by the Appellate Court itself. It was further urged that all the necessary parties were impleaded in the suit and the disputed property has been sufficiently described in the plaint and, as such, the learned lower Appellate Court ought to have, but had not, decided itself the points in controversy and instead got rid of the cases by remanding it for trial de novo on the points formulated by it in the impugned judgment.

6. I have perused the impugned judgment of the learned Appellate Court whereby the cases have been remanded to the learned trial Judge. House No.177 owned by Amir Sher Bahadur Khan had already been excluded by the trial Judge from the preliminary decree for parition. Therefore, Civil Appeal No. 194/13 brought by him had no merit and should not have been entertained. Nonetheless, Appeal .No. 239/13 brought by Kamil Habib and his two brothers had been rightly accepted, on the ground that these three brothers having not been impleaded in the plaint as defendants and their title to House No.72 had also been jeopardised. Unless the said house No. 72 is omitted from the list of the property described in the heading of the plaint, the directions that they should be impleaded as defendants after amending the plaint 'and affording them an opportunity to set up their claim are, therefore, unexceptionable. In Appeal No. 195/13, Abdul Jabbar Khan and others had laid claim to certain property on the basis of purchase through registered and unregistered sale‑deeds, but the learned trial Judge had not at all adverted to their claim and disposed of issues Nos.7, 9 and 10 in a very slipshod manner. Likewise, issues Nos.1to 4, 6 and 11 were also discussed jointly and the findings given thereon are also very vague and inconclusive. A particular reference may be made to issue No.11 which reflects the preliminary objection that certain properties such as mosque, well etc. fully detailed in the heading of the plaint, were not liable to partition. The learned trial Judge has not been specific to the properties which he held to be not liable to partition in the relief part of his judgment. Similarly, he had passed the preliminary decree for possession through partition of "up to 2/3 and 2/15 shares in the suit properties and the properties like mosque, well and hujra etc. which shall remain joint" without determining the fate of the other properties which were also held to be not liable to partition. Then the judgment of the trial Judge 1 was also not in accord with the provisions of sub‑rule (2) of rule 4 of Order XX; C.P.C. which requires that the judgment should contain (1) a concise statement of A the case, (2) the points for determination i.e. the issues, (3) the decision of the Court with regard to each issue and (4) the reasons for the decision.

7. It is now a well‑settled proposition of law that if a judgment is not in accordance with sub‑rule (2) of rule 4 of Order XX, C.P.C. the case may be remanded in appeal. The learned Appellate Court has not adverted to this inherent lacuna in the judgment of trial Court and had remanded the cases on other grounds particularly those agitated in Appeals Nos. 239/13. 193/13 and 195/13. The order of remand is, therefore, unexceptionable on the grounds not only those which found favour with the Appellate Court in the above‑cited appeals, but on the additional ground also that the learned trial Judge shall, after the amended plaint is filed and the newly‑impleaded defendants, Kamil Habib etc. file their written statement, record any evidence which the parties wish to adduce and, thereafter, write the judgment strictly in accordance with the provisions of sub‑rule (2) of rule 4 of Order XX, C.P.C. This revision petition, having no substance is, therefore, dismissed in limine. A copy of this judgment shall, however, be transr.‑.ittcd to the trial Judge for his guidance, who is further directed to dispose of this old case within three months. A.A/1076/P Revision dismissed.