2010 PLP 680 (CLC)

RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J.

The petitioner, namely, Adnan Ijaz son of Abdul Ghafoor who was defendant No.10 in the civil suit for partition and permanent injunction filed by Mst. Hanifan Bibi widow of Abdul Ghafoor, Mst. Waziran Bibi. Mst. Naziran Bibi, Mst. Khurshid Bano, daughters of Abdul Ghafoor and Waqas son of Muhammad Yasin (minor son of Mst. Salma Bibi deceased through plaintiff No.1), respondents Nos.1 to 5/plaintiffs has called in question the judgment and decree dated 4-3-2009 passed by the learned Additional District Judge, Pakpattan Sharif, whereby he had dismissed the appeal filed by him against preliminary decree dated 3-7-2008 passed by the learned Civil Judge 1st Class, Pakpattan Sharif.

2. Precisely the facts giving rise to this revision petition are that Abdul Ghafoor, predecessor-in-interest of the parties, died leaving behind some properties, which were owned by him; the said properties were in possession of the defendants and they were enjoying the benefits thereof depriving the plaintiffs from the use of the same; as no family partition was made, the plaintiffs filed the aforesaid suit seeking partition of the suit property, which was contested by the defendants Nos.1 to 7 and 10 by filing written statements, however, defendant No.10/ petitioner in his written statement taken a stand that his father had gifted the property measuring two Marlas, two Sarsai in his favour and he is in exclusive possession thereof, therefore, the same may be excluded from partition; respondents Nos.8,9 and 11 to 14 were proceeded ex parte by the learned trial Court; out of the divergent pleadings of the parties, the learned trial Court proceeded to frame ten issues inclusive of the relief and after receiving oral as well as documentary evidence from both the sides, passed a preliminary decree vide judgment and decree dated 3-7-2008; being aggrieved of the said preliminary decree, the petitioner preferred an appeal and the same was dismissed by the learned Additional District Judge, Pakpattan Sharif vide judgment and decree dated 4-3-2009. Hence the instant revision petition.

3. The learned counsel argues that the learned Courts below have committed material irregularity by not framing an issue on the point of gift as contended by the petitioner in his written statement and absence of said issue vitiate the whole trial; that the learned Courts below have failed to exercise jurisdiction vested in them by ignoring altogether a well knit evidence of the witnesses of appellant/defendant No.10 i.e. evidence of D.W.1 to D.W.3; that the impugned judgments and decrees have been given by the learned Courts below without application of independent mind; and that the Courts below have failed to consider the evidence available on the record. He placed reliance on Masab Ali v. Hafizan and 5 others PLD 1993 Lah. 1.

4. I have heard the learned counsel for the petitioner and have also gone through the record available on the file. Perusal of the preliminary decree passed by the learned Civil Judge reveals that although no specific issue with regard to stand taken by the petitioner had been framed, but the learned trial Judge while dealing with the contention of the petitioner had observed that the petitioner while appearing as D.W.1 stated that Abdul Ghafoor deceased had promised to deliver him two shops and had also announced that those were gifted to him, but no gift deed in proof his stance had been brought on record. The learned trial Court further proceeded to observe that in his examination-in-chief, the petitioner/defendant No.10 in the last line stated that the deceased had promised, but in the light of said statement, the requirements of gift were not fulfilled and that the gift was not complete inasmuch as "there are three ingredients of gift, first is offer, second is acceptance and third is delivery of possession". It has also been observed that according to section 7 of the Registration Act, to the excess of Rs.100 every gift is compulsory for registration, but herein no deed was registered. All the evidence adduced by the petitioner was oral and no documentary proof of the gift was brought on record. The learned appellate Court while dealing with the standpoint of the petitioner also observed that he has not been able to prove the gift and that had he been the owner of the said land, on the basis of oral gift dated 2-1-1999, he was at liberty to get sanction of the same in his name through process of law, but he had not done so. The learned appellate Court further observed that according to the Revenue Record, Abdul Ghafoor, the predecessor-in-interest of the parties was the owner of the whole property and obviously the same is to be partitioned among his legal heirs, as per their respective shares. It appears that the petitioner is trying to avoid partition of the property in dispute.

5. It has been held in the case of Muhammad and 9 others v. Hasham Ali PLD 2003 SC 271 that if, on a question of fact, a specific issue required to be framed in the light of the pleadings of the parties was not framed but the parties had produced evidence on the controversial question of fact, the decision could be legally rendered on such question without framing of issue. Where the pleadings of the parties related to a controversial question of fact and the parties had led evidence in support of their respective stance and decision on such question could be rendered in the light of evidence available on record, the framing of separate issue and recording of further evidence in the matter was not an essential requirement of law for rendering decision. In the present case it is an admitted position that none of the parties at any stage of the proceedings made any request either for an amendment in the pleadings or for framing the additional issue. In the case of Laloo v. Ghulaman 2000 SCMR 1058 it was held that nothing would turn upon failure to frame an issue on the question of limitation if throughout the pleadings, no request was made for framing an additional issue and the judgment could not be challenged on the said score. In the case of Mst. Sughra Bibi v. Asghar Khan 1988 SCMR 4 it was held that no prejudice was caused to the parties due to the framing of an omnibus issue by the Civil Judge and the contention relating to the framing of improper issue was of no consequence. In the case of Fazal Muhammad Bhatti v. Saeeda Akhtar 1993 SCMR 2018 it was held as under:

"The pleadings and the issues as originally framed show that the parties were fully aware that what was the subject-matter of controversy and what evidence was to be led by each one. The Court did not prevent the parties from leading evidence at the trial with regard to the defects in the gift. The non-framing of a specific issue in such circumstances is inconsequential. It was held by this Court in the Province of East Pakistan v. Major Nawab Khawaja Hassan Askary and others PLD 1971 SC 82 that if issues are not framed but allegations made in the plaint are Challenged in the written statement and the Court has allowed evidence to be led, then a decision rendered without framing of the issues is not illegal.

6. In the present case parties led their respective evidence. They were fully aware about the plea of gift raised by the petitioner and both the Courts have dealt with the plea of gift in the impugned judgments. The findings arrived at by the learned Courts below are concurrent and the learned counsel for the petitioner has not been able to point out any illegality or jurisdictional error muchless any irregularity therein. The impugned judgments and decrees are well-reasoned and elaborate and no interference is called for therein. 7.Resultantly, this revision petition being meritless is dismissed in limine. M.U.Y./A-176/L Petition dismissed.