2012 PLP 280 (CLC)

MIFTAH-UD-DIN KHAN, J.

Hakim Khan etc. petitioners have filed the present revision petition against the judgment and decree dated 3-2-2006 of learned Additional District Judge III, Swabi, whereby appeal of petitioner's against the judgment/decree dated 28-10-2002 of learned Civil Judge, Swabi, was dismissed.

2. The brief facts of the case are that the petitioners instituted a suit for declaration to the effect that they are entitled to 1/3 share in 'Shamilat' property of Tal Khan Khel Mauza Gandaf Tehsil Swabi, as legal heirs of Madam Baba, while the remaining 2/3 share has to be received by the respondents as legal heirs of Rusam and Said Khan, hence they be restrained through perpetual injunction from receiving the share of the petitioners in the acquired property from respondent No.1. The petitioners alleged in the plaint that Madam Baba, who was the predecessor of petitioners and respondents, was owner in^`Shamilat' of `Tal Khan Khel', which devolved upon his three sons Ambara Khan, Rustam Khan. and Said Khan; that the petitioners are entitled to 1/3, share in the inheritance of Ambara Khan, while the remaining 2/3 share has to be received by the respondents, but the respondents are denying the share of the petitioners in the acquired property, hence the present suit.

3. The suit of the petitioners was contested by the respondents by submitting written statement. The learned trial court after framing issues, recording evidence and hearing the learned counsel for the parties, dismissed the suit of the petitioners, vide judgment and decree dated 28-10-2002.

4. The petitioners preferred an appeal before the learned Additional District Judge, Swabi, which was also dismissed on 3-2-2006. Aggrieved from the concurrent findings of both the courts below, the petitioners have lodged the present revision petition.

5. Learned counsel for the petitioners contended that the names of the petitioners have been recorded in the revenue papers till date as legal heirs of Ambara Khan and they on the basis of entries in the revenue papers were entitled to 1/3 share of compensation in the acquired land, but both the courts below deprived the petitioners from their legal share of compensation on the mere entry in pedigree table, which is wrong, illegal and unjustified. He further submitted that this specific plea was raised by the respondents in their written statement, but neither any issue was framed in this connection nor any convincing evidence regarding the fact that Rehmatullah the predecessor of the petitioners was adopted son of Ambara Khan, exists on record, therefore, both the courts below were not justified to dismiss the suit of the petitioners on the basis of this plea. He placed reliance on 2010 SCMR 882, 1994 SCMR 559 and 2002 YLR 3375.

6. Learned counsel for the respondents defended the judgments of both the courts below and contended that the suit kept pending for morethan two decades, but no objection on framing of the issues was raised and the petitioners had to succeed on the strength of their own evidence and not on account of any plea raised by the respondents, therefore, both the courts below after proper appraisal of evidence have rightly dismissed the suit of the petitioners. He placed reliance on 2004 SCMR 1524.

7. Learned A.A.-G contended that compensation of acquired land to the extent of property in dispute has been kept intact and would be paid to the party in whose favour case is finally decided.

8. After hearing the learned counsel for the parties and perusal of evidence available on the record, I have come to the conclusion that the learned trial Court has totally ignored the long-standing entries in revenue papers right from 1961-62 till date, as evident from perusal of Exh.RPW.1/1 to Exh.RPW.1/9, wherein petitioners have been shown to be owners of the "Tal Khan Khel" in the suit property as legal heirs of Ambara Khan, on mere fact that no inheritance mutation to this effect was sanctioned in spite of the fact that no such inheritance mutation even exists in favour of the respondents. The learned trial court has totally overlooked the unchallenged and unrebutted entries in the revenue papers in favour of petitioners and both the courts below have non-suited the petitioners on the mere plea of the respondents that in the pedigree table Rehmatullah, the predecessor of the present petitioners has been shown as `Pisr-e-Mutabanna'. This plea was specifically raised by respondents in written statement in preliminary objections, but neither any issue was framed by the learned trial court in this connection nor such plea was supported by the respondents in their statements before the court, but even then the courts below dismissed the suit of the petitioners on such plea, which is apparently wrong, illegal and unjustified. It was the duty of the learned trial court to effectively adjudicate each. and every issue in controversy between the parties and to frame a specific issue in this connection and thereafter invite evidence of the parties on the same and decide the controversy between the parties in accordance with the evidence produced in this connection. Admittedly, no specific issue in this connection was framed on account of which the parties were not in a position to lead evidence in respect of this real question in controversy between the parties. The evidence produced by the parties, which is available on the record, is too much scarce and scanty to appreciate the respective contentions and claims of. the parties in this connection. In these circumstances, remand of the case is inevitable in the interest of justice. Thus, I accept the present revision petition, set aside the judgments and decrees of both the courts below and remand the case to the learned trial court with the direction to frame a specific issue as to whether Rehmatullah, the predecessor of the petitioners was real son or Pisr-e-Mutabanna' of Ambara Khan and thereafter invite evidence of the parties on the same and decide the case on merits in accordance with B law. The learned trial court shall issue notice to the parties. Costs shall follow the events. H.B.T./370/P?????????????????????????????????????????????????????????????????????????????????????? Case remanded.