P L D 1993 Karachi 410 (PLP)

Applicant Ghous Bux has riled this Civil Revision Application against the judgment and the decree delivered in Civil Appeal No.2 of 1990 by llIrd Additional District Judge, Khairpur. Admittedly applicant Ghous Bux owncJ 10 paisas share in the suit land mentioned in para.3 of his plaint in First Class Suit No.57 of 1989. Said suit was filed by the applicant in Court of the Senior Civil Judge, Mirwah for declaration that a mutation entry dated 3-1-1987 in respect of the suit land in favour of the respondents Nos.1 and 2 was illegal, void, nullity in the eye of law, liable to be cancelled and not binding upon the applicant being fraudulent. The applicant also sought issue of permanent injunction restraining the respondents Nos. I and 2 from directly or indirectly interfering with title, possession and enjoyment of the applicant over the suit land. While challenging mutation entry dated 3-1-1987 in the record-of- rights the applicant in his plaint alleged that the respondents Nos.1 and 2 being local merchants in the village and being acquainted with the applicant, took undue advantage and got mutated Khata of his land in their favour mala ride and with ulterior motive through forgery and fabrication. The applicant added that he never sold the suit land to the respondents Nos.1 and 2 and he never appeared before the Mukhtiarkar Mirwah for giving statement about suit land in favour of respondents Nos.1 and

2. Applicant further stated that the suit property being ancestral joint property could rot be sold by him. It was alleged that the respondents Nos.1 and 2 tried to forcibly dispossess the applicant from the suit land and hence suit was riled. The suit was contested by the respondents Nos.1 and 2, who in their written statement claimed that the applicant had sold to them his share in the suit property for a consideration of Rs.50,000 and gave such statement in pre,sence of the Mukhtiarkar Mirwah who ordered mutation of the record on 3-1-1987. Allegations that the Khata of suit land was changed with mala fide intention, with ulterior motive, by fraud or by forgery_ and fabrication were denied. Valuation and maintainability and form of the suit were challenged. It was alleged that the applicant had come to the Court with unclean hands and had suppressed the real facts of sale and that he had riled the suit to usurp the suit property. Jurisdiction of the trial. Court was also challenged. It was added that after purchase the respondent No.2 had sold his share to certain persons who were not parties to the suit. Learned Trial Court framed issues on maintainability, form, valuation and on merits of the suit. Issues were also framed on the point of possession of the suit land. Under his judgment dated 30-11-1989, the Senior Civil Judge Thari Mirwah decreed the suit after holding that the suit was maintainable in law, was not undervalued, was not insufficiently or improperly stamped and was riled in proper form. The trial Court was not satisfied with the evidence of the respondents Nos.1 and 2 about the applicant having appeared before the Mukhtiarkar and about having sold the suit land and took view that the entries effected in names of the respondents Nos.1 and 2 were not lawful and proper and that the applicant continued to be in possession of the suit land and not the respondents Nos.1 and

2. Aggrieved by the judgment and the decree passed by the trial Court the respondents Nos.1 and 2 filed Civil Appeal No.2 of 1990 in the District Court, Khairpur. Under his judgment and the decree, the 111rd Addl. District Judge, Khairpur, accepted the appeal, set aside the judgment and the decree of the trial Court and remanded the suit to the trial Courl for framing additional issues regarding jurisdiction of the trial Court and about sale of the suit land by respondent No.2 and its effect., Hence this revision application. Mr. Kalander Bux Phulpota, learned counsel for the applicant argued that there was hardly any justification for remanding of the case, because the trial Court had framed an issue on the point of maintainability which covered the point of jurisdiction. It was next argued that evidence on the record was sufficient to decide the issues, on which the appeal Court has desired fresh evidence to be recorded. Learned counsel criticised judgment of the appellate Court on the ground that points for determination had not been formulated. It was also argued that the issues were settled by the trial Court with counsel of advocates for the parties and that at no stage the respondents Nos.1 and 2 had taken plea that some of the issues had not been framed. In support learned counsel for the applicant cited the cases of.-- (i) Muhammad Yousaf and others v. Khan Bahadur (1992 SCMR 2334). (ii) Juma Khan v. Mst. Shamim and others (1992 CLC 1022). (iii) Bagh Ali v. P.O. Sindh and others (1992 CLC 1407). (iv) Hafiz Muhammad Ranizan and others v. Muhammad khalique (1991 CLC 417). The question of jurisdiction was very important to be decided in a case of this nature, where such objection was taken by the respondents Nos.1 and

2. In the instant case the applicant sought declaration challenging an entry in the record-of-rights. According to clause (vi) of suggestion (2) of section 172 of the Land Revenue Act, a Civil Court shall not exercised jurisdiction over the matter relating to correction of any entry in a record-of-rights, periodical record or Register of mutations. In the instant case plaint had not been properly drafted. In essence the applicant was seeking declaration in respect of title over the suit property, in terms of section 42 of the Specific Relief Act. But the words used in the prayer clause, take away jurisdiction of the Civil Courts to grant the relief. In the circumstances even the plaint requires amendment because in the present shape the suit is barred by clause (vi) of subsection (2) of section 172 of the Land Revenue Act. While deciding an appeal, the appellate Court. is required to set out points for determination, record the decision thereon and give its own reasons for the decision in terms of Order 41, Rule 31 of C.P.C. as observed in the case or Juma Khan v. Mst. Shamim and others (1992 CLC 1022). Similar view was taken in the case of Bagh Ali v. P.O. Sindh and others (1992 CLC 1407). In the instant case the appellate Court set out the issues as points for determination and gave grounds for remanding the matter. There was no issue with discussion. No finding was given on any issue. To i that extent the judgment of the appellate Court is defective and can be set aside. Even if the appellate judgment and decree are set aside, the judgment and the decree by the trial Court do not deserve being maintained because the trial Court has failed to frame an issue on the point of jurisdiction and has not considered implication of the provisions contain in section 172(2)(vi) of the Land Revenue Act. Moreover while exercising supervisory jurisdiction under section 115 of Civil Procedure Code, this Court can avoid technicalities coming in its 'way to correct jurisdictional errors committed by the lower Courts, as observed in the case of Muhammad Yousaf and others v. Khan Bahadur (1992 SCMR 2334), where it was held as below:-- "Exercise of revisional jurisdiction by the High Court is a matter exclusively between the High Court and the subordinate Courts, albeit the parties to the litigation have a right to bring to their notice the jurisdictional/legal errors as envisaged in section 115 of C.P.C. itself. No period of limitation is, consequently prescribed therefore under the law. No doubt, persons applying for exercise of revisional jurisdiction before the High Court have to submit their application within a certain time but that is nol sacrosanct and High Court can, in certain circumstances, ignore or either may condone the delay or exercise their jurisdiction suo motu. Once the High Court assumed the jurisdiction under section 115 of the Civil Procedure Code and formed an opinion that the question of jurisdiction was involved, it ought to have avoided technicalities coming in its way in its supervisory jurisdiction to correct jurisdiction/legal errors committed by the lower Courts and ought to have decided the matter on merit." Next submission made at the Bar was that the appellate Court instead of remanding the case, should have given decision on merits, as entire evidence was available on record. Reliance was placed on the case of Hafiz Muhammad Ramzan and others (1991 CLC 417) where the view taken was that when entire evidence is available on record the appellate Court should dispose of the case without remanding the same. Reliance was also placed on the case of Bagh Ali (1992 CLC 1407) where the appellate Court had not remanded the case but had reversed certain findings without any discussion. In the present case even certain issues have not been frarned by the trial Court and bar of section 172(2)(vi) of Land Revenue Act has not been considered. Moreover the plaint requires to be amended to avoid it from being rejected under Order 7, Rule 11 of C.P.C. In the circumstances one may not agree with the order of remand but it is keeping with interest of justice and beneficiary of the remand order is the applicant, rather than the respondents. For the foregoing reasons, the impugned judgment and the decree remanding the matter to the trial Court arc allowed to stand. The applicant may move the trial Court for amendment of his plaint. If such amendment i.4 allowed, then the respondents Nos.1 and 2 would be entitled to rile amended written statement. Respondents Nos.1 and 2 to see whether issues on the, disputed questions are, framed. The trial Court may dispose of t e suit according to law after giving one more chance to the parties to lead evidence Civil Revision application stands disposed of accordingly. There shall be no order as to costs. A.A./G-339/K