2004 PLP 293 (MLD)

Date of hearing: 2nd June, 2003. This revision petition is directed against the judgment and decree dated 22‑3‑2002 passed by the learned Additional District Judge/Izafi Zilla Qazi, Malakand at Dargai whereby he accepted the appeal of the plaintiffs‑respondents and remanded the case back to the trial Court for decision afresh in accordance with his‑ observations made in the judgment.

2. The brief facts of the case are that the plaintiffs‑respondents filed a suit against the defendants‑petitioners for possession through partition of the suit property comprising Khasra No.1619/307 Khata No.169/293. The suit was contested by the defendants by filing written statement. Issues were framed. Evidence pro and contra was recorded and after hearing the learned counsel for the parties the learned trial Judge dismissed the suit of the plaintiffs vide his judgment and decree dated 15‑5‑2000. Feeling aggrieved of the above judgment and decree of the trial Court, the plaintiffs‑preferred an appeal before the Appellate Court which was accepted by the learned Additional District Judge/Izafi Zilla Qazi, Malakand at Dargai and the case was remanded back to the trial Court for further proceedings and deciding it on merits in the light of the observations made by him in his judgment dated 22‑3‑2002. Hence the instant revision petition.

3. Learned counsel for the petitioners argued that the Appellate Court had not appreciated the documentary evidence and has also ignored the previous litigation between the parties in respect of the property in dispute measuring 64 Kanals and 16 Marlas in the year 1935 in Case No.3298 dated 20‑2‑1935 which judgment was further confirmed by the Assistant Political Agent and Political Agent and finally by Commissioner F.C.R. The learned trial Judge in view of the aforesaid position dismissed the suit of the plaintiffs‑respondents as the case was hit by section 11 of the Civil Procedure Code but the learned Appellate Court even did not bother to discuss the same. That one of the plaintiffs namely Muhammad Younas son of Haji Wasiat Khan was expired during the pendency of the suit but appeal in the name of dead person was filed which was bad in law and was liable to be dismissed, this aspect of the case despite objection by the petitioners has not been taken into account by the learned Appellate Court.

4. On the other hand the learned counsel for the plaintiffs respondent opposed the contentions of the learned counsel for the defendants/petitioners and submitted that the learned trial Court had not decided the issues in view of the evidence available on the record. It was further argued by the learned counsel that the plaintiffs/respondents submitted an application before the trial Court for appointment of Commission but after reply and partial arguments no decision was passed on the aforesaid application. That the right in the joint property was admitted by the petitioners that they are the joint owners still the Issues Nos.7 and 10 were decided in favour of the petitioners. That in the circumstances of the case the appointment of Commission was very much necessary in the matter in order to ascertain the rights of the parties which fact was totally ignored by the trial Court. The matter pertaining to the crucial dispute was not discussed by the trial Court elaborately and that also by not appointing the Local Commissioner committed a gross illegality, hence the Appellate Court while appreciating the situation passed a well‑founded and well‑reasoned order which is not liable to be set aside.

5. I have given my anxious consideration to the submissions advanced by the learned counsel for the parties and have gone through the record of the case with their able assistance.

6. Perusal of the judgment passed by the trial Court would reveal that the dispute between the parties is with regard to the commercial property and so far agricultural property is concerned through private family settlement partition has taken place between the legal heirs of Samandar Khan deceased, the predecessor‑in‑interest of the parties. The subordinate trial Court also categorically discussed in its judgments vide issue No.6 that there is sole dispute about the commercial property but vide Issue No.5 the said Court held that the matter in dispute had already been finalised by the Courts vide Case No.3298 of 1935 and through the said judgment the commercial and agricultural properties were finally partitioned by the Courts of Political Agent and Commissioner, Frontier Crimes Regulation, and declared that suit is hit by section 11 of the Civil Procedure Code except 16 Jareebs Mondi and shops. The learned trial Judge had not written a speaking judgment regarding commercial and agricultural property crucial dispute left unattended. Similarly the learned Additional District Judge (Appellate Court) also confined his judgment to the application for appointment of Local Commission and remanded the case back to the trial Court with the observations that when the reply to the application for appointment of Local Commission was invited, the decision on such application was necessary. Next observed that there is no findings on Issues Nos.3, 6 and 8 by the trial Court which were very pertinent in the matter.

7. In the wake of the above I am of the view that the trial Court should have given findings about the earlier decisions made in the year 1935 and 24‑10‑1958 by the Political Agent and the Commissioner Frontier Crimes Regulation coupled with the partition, deed of 1941. The trial Court had disposed of so crucial issue in a very evasive manner without any reference to the material available on the record. Similarly that the disputed property is whether commercial or agricultural and whether earlier decisions were made pertaining to the same disputed property or not, the same had not been discussed satisfactorily. It is a matter of rights of the parties disputing the valuable property which could have been dealt with great concentration and care and not in off handed manner.

8. I, therefore, maintain the judgment and decree dated 22‑3‑2002 passed by the learned Additional District Judge/Izafi Zilla Qazi, Malakand at Dargai with the additional modifications that the learned trial Court shall pass a speaking order/judgment on each and every issues specially about the earlier decisions and to see whether the present case is hit by the previous litigation under section 11, C.P.C. and for that matter the learned trial Judge may satisfy himself through Local Commissioner with the direction to ascertain that whether partition regarding the suit property had taken place as alleged by the petitioners. The Local Commissioner may be allowed to associate the concerned Revenue Official who shall be well‑conversant and well‑versed with the Revenue Record and the area. The trial Court in the interest of dispensation of justice may requisition the record of the previous litigation if traceable and shall also see whether the property in question is the same agricultural property which had already been partitioned and that which nature and status had now been changed and converted into commercial in the shape of Mondi/Market and for that matter necessary relevant additional evidence if desired by the parties to prove their respective stance be allowed but it is to be noted by the trial Court that the whole exercise shall not consume more than six months as it is an old litigation coming pending since 1993. With the above modifications/observations the instant revision petition is disposed of accordingly with no order as to costs. M.H./980/P Revision allowed.