2020 PLP 109 (YLRN)

ALI BAIG, J.

This civil revision petition has been filed under section 115, C.P.C. against the impugned judgment/decree dated 24/03/2016 passed by the learned Additional District Judge Skardu whereby the learned 1st appellate court has accepted civil 1st appeal of the present respondent/plaintiff and suit of the respondent/ plaintiff has been decreed in his favour by setting aside the judgment/decree passed by the learned trial court. The brief facts of the case, relevant for the purpose of disposal of this revision petition in brief are that the present respondent/plaintiff filed a suit for declaration and possession of suit land fully described in the heading of plaint against the present petitioners/ defendants in the trial court claiming that the plaintiff being legal heir/real son of his father namely Wazir Qasim is entitled to get his sharie share from the legacy of his above named late father and the present respondent/plaintiff has also sought cancellation of gift deed dated 16/02/2000 allegedly executed by late father of the parties in favour of the present petitioners/defendants. The suit of the plaintiff/ respondent was resisted by the present petitioners/defendants who submitted their joint written statement wherein they have raised certain legal objections and have also denied the claim of the plaintiff/ respondent by pleading that during his life time father of parties has voluntarily donated/gifted the suit land to their sons/defendants vide gift deed dated 16/02/2000. On the basis of divergent pleading of the parties the learned trial court framed the following issues for determination: -

1. Whether the suit of the plaintiff is within time? OPP

2. Whether the plaintiff is stopped to file the suit by his own word, deed and conduct? OPD

3. Whether the suit property was distributed among the male legal heir and incorporated in revision record through mutation No.1695 in reference of mutation No.1177? OPP

4. Whether the suit land was transferred in favour of defendants by their father on 16.02.2000 and attested the mutation No.3089? OPD

5. Whether the plaintiff was separated in the year 1985 and has been enjoying the possessory right of his share? OPD

6. Relief. After framing of aforesaid issues the parties adduced their oral and documentary evidence in support of their respective-claims in the trial court. On conclusion of the trial the learned trial court vide the judgment/decree dated 15/12/2014 has dismissed the suit of the present respondent/plaintiff. Feeling aggrieved and dis-satisfied with the judgment/decree passed by the learned trial court, the present respondent/plaintiff had filed civil 1st appeal in the court of the learned Additional District Judge Skardu. The learned 1st appellate court after hearing the parties has allowed the civil 1st appeal of the present respondent/plaintiff and suit of the present respondent/plaintiff has been decreed in his favour vide the impugned judgment/decree dated 24/03/2016, hence this revision petition. The learned counsel appearing on behalf of the petitioners contended that the impugned judgment/ decree passed by the learned 1st appellate court is contrary to law and facts on the record of the case as such the impugned judgment/;decree passed by the learned 1st appellate court is not maintainable and liable to be set aside. The learned counsel for the petitioners further argued that the suit/plaint has not been properly drafted by the counsel for the plaintiff/ respondent and the learned trial court has also not framed proper issues, therefore, on this ground suit is liable to be remanded for framing of proper issues and recording of evidence-in the matter. Conversely, the learned counsel for the respondent/plaintiff controverted the arguments advanced by the learned counsel for the petitioners and defended the impugned judgment/decree passed by the learned 1st appellate Court by contending that the learned 1st appellate court after proper evaluating and appreciating the evidence of the parties has decreed the suit of the respondent/ plaintiff through its well reasoned judgment/decree dated 24/03/2016 which may be maintained in the interest of justice. The learned counsel for the respondent/plaintiff laid emphasis that the suit of the plaintiff/respondent may not be remanded back to the trial court as the parties have already spent sufficient time before the courts below. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the record with their able assistance. From perusal of record it appears that the learned trial court has not framed proper issues out of divergent pleadings of the parties. Perusal of judgment/decree dated 15/12/2014 passed by the learned trial court would reveals that onus probandi of only two issues i-e issues Nos.2 and 3 was placed on the respondent/ plaintiff which too have been decided/ answered in favour of the plaintiff/ respondent but it is astonishing to observe that despite resolving issues Nos.1 and 3 in favour of plaintiff, the learned trial court has dismissed the suit of the respondent/plaintiff vide judgment/ decree dated 15/12/2014. Thus I am of the considered view that the learned trial court has failed to frame proper issues in the light of divergent pleadings of the parties. Moreover, the plaint of the plaintiff/respondent also appears to be ambiguous. In view of the above facts and discussion this revision petition is partially allowed and impugned judgments/ decrees passed by both the learned courts below are set aside. Consequently the case is remanded back to the learned trial court with direction to frame proper issues after obtaining proposed issues from both the parties and proceed with the matter in accordance with the law. The learned trial court shall also afford an opportunity to the plaintiff/respondent to amend his plaint if he so desired. This revision petition is allowed in the above terms. Before parting with this judgment it is necessary to observe that since this litigation/case is a old one, therefore, no unnecessary adjournment would be granted to the parties by the trial court and the learned trial court shall decide the matter within four month from the date of receipt of this judgment. After decision/ disposal of suit by the learned trial court if either party files appeal or revision in the 1st appellate court and the learned 1st appellate court/District Judge shall also decide the matter within two months of filing of appeal or revision. Parties to bear their respective costs. Office is directed to send certified true copy of this judgment to the learned trial court for compliance. Parties and their counsel are directed to appear before the learned trial court on 15/10/2019. File. ZC/162/GB Case remanded.