1991CLC1153 (PLP)

This appeal arises out of the suit for declaration filed by respondent No.1 on 18‑2‑1969 in the Civil Court Daska. The plaintiff/respondent No.1 had challenged sale of land measuring 32 Kanals 7 Marlas made by Allah Dad deceased respondent No.2 (now represented by his legal heirs) in favour of Saeed Ahmad, deceased predecessor‑in‑interest of the appellants. He had claimed that the sale was void and ineffective against his reversionary rights under the Customary Law. The suit was resisted by the predecessor‑in‑interest of appellants Nos.1 to

4. However, the trial Court decreed the suit vide judgment and decree dated 4‑11‑1971. On an appeal filed by the predecessor‑in‑interest of the appellants the learned District Judge, Sialkot set aside the judgment and decree of the trial Court and remanded the suit for a fresh decision vide his judgment and decree dated 28‑10‑1975. After remand the trial Court dismissed the suit vide judgment and decree dated 12‑11‑1975. Respondent No.1 filed an appeal in the Court of the learned District Judge which was accepted by the learned Addl. District Judge, Sialkot, who remanded the case vide his judgment dated 11‑3‑1978.

2. During the course of arguments the learned counsel for the appellants urged that the decree in favour of the respondents has become a nullity in view of the provisions of section 2‑A of the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983. Meeting the objection the learned counsel for the respondents urged that the respondents were Ahmadis/Qadianis and being non‑Muslims under the Constitution were not governed by the provisions of the Ordinance. The appellants' learned counsel submitted that the said point was never raised before the Courts below. He added that at any rate the determination of the question as to whether the respondents were Qadianis at the relevant time would require recording of evidence. Obviously the trial Court had dismissed the suit vide the judgment and decree dated 12‑11‑1975 which were set aside by the learned Addl. District Judge who remanded the case vide order dated 11‑3‑1978, long before the enforcement of the Ordinance. The respondents had no occasion to raise the point before the Courts below. They can legitimately raise the point at this stage. However, as rightly pointed out by the appellants' learned counsel, the question whether the respondents were Qadianis at the relevant time is one of fact and can only be determined after recording evidence. For this purpose the case would require remand to the trial Court.

3. The appellants' learned counsel has also attacked the findings of the appellate Court on issues Nos.1 to

4. Respondents' learned counsel has stated in a candid manner that he had no objection if findings on issues Nos.1 to 4 were set aside and the case remanded to the trial Court with a direction to frame an additional issue on the question as to whether the respondents were Qadianis/Ahmadis at the relevant at time or not. 4.In this view of the matter, I allow the appeal, set aside the findings of the appellate Court on issues Nos.1 to 4 and remand the case to the trial Court for a fresh decision on all the issues in accordance with the law. The trial Court should frame an additional issue on the question as to whether the respondents were Ahmadis/Qadianis at the relevant time, allow the parties to produce evidence on the issue and then examine the effect of the Ordinance on the suit in the light of his findings on the fresh issue. The parties are left to bear their own costs. H.B.T./B‑249/L ????????????????????????????????????????????????????????????????????????????????? Order accordingly.