2014 PLP 1855 (YLR)

MUSARRAT HILALI, J.

Impugned herein is the judgment and decree of learned Additional District Judge-II, Swabi dated 16-12-2011, whereby appeal of the petitioners against the judgment and decree of learned Civil Judge-II, Swabi dated 16-9-2010 has been dismissed.

2. Brief facts, as per record, are that the predecessor of the petitioners filed a suit against the respondents before the learned Senior Civil Judge, Swabi on 26-6-2003, alleging therein that they were owner in possession of the suit property through Mutation No. 13353 attested on 20-11-1974 and the entries made in the name of the respondents were wrong, illegal and void and were liable to be corrected. Respondents were put on notice who contested the case by way of filing written statement. Issues were framed and after recording evidence, arguments were heard and the case of petitioners was dismissed by the learned trial Court vide its judgment and decree dated 16-9-2010. Dissatisfied, the petitioner filed an appeal thereagainst, which met the same fate, hence this petition.

3. Learned counsel for the petitioners without touching the merits of the case confined his arguments only to the list of witnesses which was submitted on 16-6-2010 and contended that the application submitted by the petitioners asking the learned trial Court to summon the witnesses remained on the court file undecided; learned counsel added that the said application was neither brought in the order sheet nor was discussed in the judgment delivered by the learned trial Court dated 16-9-2010; that the learned appellate court also ignored the application made before learned appellate court seeking permission for additional evidence; that the learned appellate court only perused the said application but has not discussed the same while finally disposing of the appeal. The learned counsel while concluding his arguments contended that the rights of petitioners have been prejudiced by both the courts below by not allowing the application for producing additional witnesses.

4. Conversely, learned counsel for respondent contended that the application of petitioners for additional evidence was made at a belated stage with intention to prolong the matter; that the application was vague thus rightly been dismissed by the courts. Arguments heard and record perused.

5. A reference to the record reveals that the predecessors of the petitioners brought a suit for declaration and permanent injunction to the effect that they were owner in possession of the suit property on the basis of Mutation No.13353 dated 20-11-1974. The case of the petitioners was dismissed by the learned trial Court on ground that the petitioners (plaintiffs therein) claim to be the owner of the suit property on the basis of Mutation No.13353 attested on 20-11-1974, which goes unestablished from the available record as the petitioners (plaintiffs) have not produced cogent evidence in support of their contentions. Furthermore, that he has not produced any independent witnesses who would testify that attesting witnesses had died. The same was the observation made by the learned Additional District Judge-II, Swabi in para No.5 of the judgment, wherein it was observed that it was the obligation of the petitioner to bring cogent, independent and trustworthy evidence to prove the factum of the sale. The learned Judge further observed that the appellant stated that "both the witnesses of mutation were dead. Firstly, he failed to prove the death of said witnesses, secondly a question arises that if they were alive then why he never applied for the production of legal heir of these dead witnesses". It seems very strange that on one side both the courts were making observation regarding the marginal witnesses of the Mutation No.13350 whether dead or alive and at the same time both the courts were ignoring the application made by the petitioners. It appears from the above discussion that the applications which were left undecided by the learned trial Court and learned appellate court have direct bearing on the merits of the case of the petitioner, as has been observed by Apex Courts in catena of cases; that if a matter involves disputed question of facts then proper opportunity shall be given to the parties to bring on record the proper evidence. The learned trial Court as well as the appellate court was legally bound to first decide the application pending before it and then to proceed further in accordance with law, thus by not doing so, both the courts below have caused prejudice to the rights of petitioners. In view of the above, the judgment and decree passed by the learned Court below, with such legal errors cannot sustain, as such the judgment and decree passed by the learned trial Court dated 16-9-2010 and that of the learned appellate court dated 16-12-2011 are set aside and the case is remanded to the court of District Judge, Swabi for deciding the case afresh on merits after deciding both the applications. The learned District Judge shall be at liberty to call for additional witnesses and record their statements. Being old case, shall be decided expeditiously and be concluded within two months of the receipt of the file. AG/120/P Case remanded.