2007 PLP 1683 (YLR)

IJAZ-UL-HASSAN KHAN, J.--Shortly narrated the facts, leading to the filing of present civil revision are, that Inayat-ur-Rehman and others, plaintiffs instituted suit against Mian Tamizuddin and others, defendants for a declaration to the effect that plaintiffs were owners in possession of suit-land measuring 2 Kanals, 7 Marlas, situate in Moza Bakhshali, District Mardan, on the basis of sale deed dated 5-7-1993; that defendants had no concern with it and entries in the Revenue Record, adverse to the interest of the plaintiffs, were illegal, void and inoperative on the rights of the plaintiffs. A prayer for grant of permanent injunction restraining the defendants to alienate or transfer the suit-land or cut crops or trees standing thereupon, was also made. In 'the alternative, possession of suit-land was also sought, in case the plaintiffs were not found in possession of the same.

2. One of the defendants, namely, Shah Jehan appeared in Court and contested the suit on all grounds legal as well as factual, denied the right of the plaintiffs and claimed to have validly purchased the land in suit from defendant No.1, on the basis of registered sale-deed. In view of divergent pleadings of the parties following issues were framed for trial:-- (1) Whether the plaintiffs have got a cause of action? (2) Whether the suit is time-barred? (3) Whether predecessor of plaintiff have purchased the disputed property vide sale-deed No.715 dated 5-7-1993 from predecessor of defendants? If so, its effect? (4) Whether, registered sale-deed No.588 dated 26-9-1996 and Mutation No.199 dated 19-8-1997, No.282 dated 20-12-1997 from defendants Nos.1, 3 to 6 to defendant No.2 is wrong, fraudulent and ineffective upon the rights of plaintiffs? (5) Whether suit is hit by principle of res judicata? (6) Whether the Court has got the jurisdiction? (7) Whether plaintiffs are entitled to the decree as prayed for? (8) Relief.

3. At the conclusion of the trial, upon consideration of the material placed before him, learned Civil Judge, Mardan, seized of the matter, by judgment and decree dated 21-4-2005, dismissed the suit, holding that plaintiffs have miserably failed to substantiate their claim in respect of suit-land. The suit was also found barred by time. An appeal was preferred thereagainst before learned District Judge, Mardan, which was assigned to learned Additional District Judge, Mardan for disposal. The appeal was accepted by judgment dated 6-5-2006. The judgment impugned therein was set aside and the case was remanded to the learned trial Court, for decision afresh, with the following directions: "(1) Summon respondent 1 Mian Tameez-uz-Din, who should thereafter be examined in person by confronting him with the said deed as well as the mutation, and both the parties be accorded an opportunity of cross-examining him. (2) A local commissioner be deputed conversant with revenue law, who should in presence of parties and Patwari Halqa ascertain the actual possessor of the suit-land, the ex-possessor (if any) and the time frame since when."

4. Haji Muhammad Zahir Shah, Advocate appearing on behalf of the petitioner, bitterly assailed the impugned judgment, maintaining that learned appellate Court has illegally exercised its jurisdiction by remanding the case without giving findings on all the issues in terms of Order XLI, rule 31 C.P.C., and has passed an illegal judgment. The learned counsel contended that there was sufficient evidence on the record produced by the parties to resolve the controversy involved and the learned appellate Court should have decided the appeal on merits and there was no justifiable reason for remand of the case. The learned counsel urged that power of remand should not be exercised lightly but sufficient care should be taken in remanding the case. The Court should examine the evidence and if it comes to the conclusion that it is not sufficient to pronounce the judgment or decide the issues between the parties, it can remand the case or may itself record the, evidence and decide it. But if on record there is adequate and sufficient evidence on which decision can be made, the remand would not be justified. To substantiate the contentions, he placed reliance on Muhammad Dervaish Al-Gilani and 14 others v. Muhammad Sharif and others (1997 SCMR 524) and Syed Abdul Hakim and others v. Ghulam Mohiuddin (PLD 1994 SC 52), Arshad Ameen v. Messrs Swiss Bakery and others (1993 SCMR 216).

5. Mian Kausar Ali Shah Kakakhel, Advocate, representing respondents 1 to 9, on the other hand, opposed the arguments of learned counsel for the petitioner and supported the impugned judgment and decree whole-heartedly.

6. I have heard at length, arguments of learned counsel for the parties in the light of the material on the file and the case-law cited at the bar.

7. No doubt, it is true that where the evidence on the record is sufficient for the appellate Court to decide the matter itself, remand may not be ordered and this discretionary power is used only in exceptional situation, but it is equally true that learned appellate Court has advanced valid and convincing reasons for remanding the case to the trial Court. Having considered the matter from all angles, I am of the view, that the controversy involved could not have been resolved properly and effectively, without examining Mian Tameez-ud-Din, respondent No.1 and deputing a local commissioner. The mere assertion of learned counsel for the petitioner that appointment of commissioner is exercise in futility in the circumstances of the case and the impugned remand order has been recorded in a mechanical manner, without application of independent judicial mind, without a positive attempt on his part, to substantiate the same, is of no 21 consequence. There is no infirmity in the impugned judgment, which could justify interference by this Court while exercising revisional jurisdiction. The civil revision is devoid of force. The same is hereby dismissed, with no order as to costs. H.B.T./72/P Revision dismissed.