2015 PLP 1789 (YLR)

SHAHID BILAL HASSAN, J.

Mst. Fatima Bibi, predecessor in interest of the present petitioners instituted a suit for declaration challenging the gift Mutations No. 711 dated 31-8-1988, No.100 dated 31-8-1988, No. 1332 dated 10-12-1988 and later on subsequent mutation No.1407, contending that gift mutations were got attested by playing fraud and misrepresentation, in order to deprive the predecessor in interest of Mst. Fatima Bibi. The suit was contested by the respondents.

2. Divergence in pleadings was summed up into following issues:-- (1) Whether the suit is bad due to non-joinder of necessary parties? OPD (2) Whether the plaintiffs have not come to the court with clean hands, if so its effect? OPD (3) Whether the plaintiff has got no locus standi, and cause of action? OPD (4) Whether the mutations No.100 dated 31-8-1983, 1132 dated 10-12-1985 and 1407 were attested by fraud, with the collusiveness of Revenue Staff therefore, these are void, ineffective upon the rights of the plaintiffs? OPP (5) Whether the plaintiffs are entitled to decree for declaration on the grounds mentioned in the plaint? OPP (6) Relief.

3. After recording evidence of the parties and hearing arguments, the learned trial Court vide impugned judgment and decree dated 20-7-2002 dismissed the suit of petitioner; which was assailed by filing appeal before the learned Appellate Court, but appeal met the same fate vide impugned judgment and decree dated 19-5-2003. Hence, this civil revision.

4. After hearing the arguments at length, it transpired that 'issues' in this case have not been properly framed by keeping in view the pleadings of parties, because in the suit, the petitioners have challenged Mutations No.711 dated 31-8-1988, No.100 dated 31-8-1988 No.1332 dated 10-12-1988 and later on subsequent Mutation No.1407; but the learned trial Court while framing the issues omitted the pivotal mutation No.711 as well as mentioned the date of attestation of Mutation No.100 as 31-8-1983, which is not in conformity with date mentioned in the plaint, therefore, when issues have not been framed in pleadings the edifice and superstructure built on the same, has no value in the eye of law. Pursuant to above, without commenting and discussing the case on merits, it would be appropriate and proper to transmit the case to the learned trial Court for decision afresh after framing proper issues keeping in view the pleadings of parties.

5. In view of above discussion, the instant civil revision is allowed, impugned judgments and decrees passed by learned Courts below are set aside and case is remanded to the learned trial Court, with a direction to frame issue with regards to the gift in dispute keeping in view the observations recorded above and afford opportunity to lead evidence to both the parties, if desired and decide the lis afresh in accordance with law.

6. No order as to costs. KMZ/F-19/L Case remanded.