2008 PLP 500 (CLC)

MUHAMMAD ALAM KHAN, J.

This judgment is to dispose of Civil Revision No.1295 of 2007 through which Saltanant Khan has called in question the judgment and decree of the learned Addition District Judge-IV/Izafi Zila Qazi in Civil Appeal No.77/13 decided on 29-5-2007 vide which on acceptance of appeal of the respondents/ appellants the judgment and decree of the Civil Judge/Illaqa Qazi-VII Swat in suit No.290/1 of the year 1995 decided on 9-4-2005 was accepted and on setting aside the same, the case was remanded back to the trial Court for decision afresh on merits.

2. Brief facts as narrated in the amended plaint are that Saltananat Khan plaintiff/petitioner brought a suit for declaration to the effect that he is owner in possession of land measuring 13 Kanals, 14 Marlas Khasra Nos.146-147-177 Khata No.92/199 situated in the revenue estate of Village Balogram Tehsil Babozai, Swat. It was averred in the plaint that the suit land was the ownership of Mst. Taj Bibi vide deed, dated 6-4-1955 and on the death of Mst. Taj Bibi it became the ownership of the plaintiff/petitioner. However, during the preparation of the settlement record vide an ex parte order of the Settlement Collector No.1169/ST, dated 3-3-1985, a Mutation No.263 of the year 1994 was entered and attested in the name of the defendants/respondents without any justification, so it was prayed that the plaintiff/petitioner be declared as owner in possession of land, subject-matter of the inheritance of Mst. Taj Bibi in the alternative, it was prayed that if the ownership of Taj Bibi was not proved then the suit land being owned by Naqshey Khan and the plaintiffs being the heirs of Naqshay are entitled to 1/3rd share of the suit land, consequently, it was prayed that mutations Nos.263 and 264 of 1994 be struck down and the wrong entries in the revenue record in the name of the defendants be set aside.

3. The defendants/respondents submitted written statement and out of the pleadings of the parties, the following issues were framed:--

4. The learned trial Court after recording pro and contra evidence adduced by the parties granted a decree to the plaintiff/petitioner to the extent of 1/3rd share vide judgment and decree in Suit No.290/1 decided on 9-4-2005.

5. That Mst. Fatwarani widow of Fazal Wahid etc, filed an appeal before the Court of Mr. Asghar Shah, Additional District Judge/Izafi Zila Qazi, Swat which was registered as Appeal No.77/13 of 2005 and the learned appellate Court while considering the arguments of the learned counsel for the parties, came to the conclusion that previously a decree had been passed in favour of the respondents by the learned Civil Judge which on appeal by the learned Additional District Judge, Swat was set aside on 7-5-2002 and the case was remanded back to the learned trial Court for de novo trial. Especially on the points, firstly to determine that what was the total 'ownership of Naqshey Khan deceased and secondly, what share according to Sharia will devolve on the off springs of Naqshey Khan.

6. That the learned appellate Court as well as this Court while perusing the judgment impugned in Appeal No.77/13 came to this irresistible conclusion that the learned trial Court has paid no attention to the observations made by the appellate Court in the earlier remand order. Thus, on the assessment of the material available on the record the appellate Court framed the following additional issues:

(i) What was the total property left by Naqshey Khan deceased and how much is partitioned and how much is joint? (ii) Whether Naqshey Khan deceased had partitioned his entitlement during his life time, if so, how much land was given to each legal heir? (iii) Whether the sons of Naqshey Khan deceased had privately partitioned the total entitlement i.e. the legacy of Naqshey Khan in the year, 1993, if so, with what detail and effect? (iv) How much individual entitlement and possession had, the sons of Naqshey Khan in the revenue record? (v) What is the effect of deed dated 6-4-1955 on the rights of the parties and its nature? (vi) What is the legal effect of mutations Nos.264 and 265 and 263 in favour of the legal heirs of Sher Zaman and onward on their behalf in favour of Fazal Wahid etc, and the effect of mutations Nos.399 and 400?

7. After framing these issues the case was remanded back to the trial Court for decision afresh. With directions to give opportunity to the parties to lead evidence. Against this remand order Saltanant Khan has come up in revision to challenge the judgment and decree of the learned appellate Court.

8. Although when the judgment and decree is set aside by the appellate Court and the case is remanded the trial Court is duty bound to honour the observation of the appellate Court and re-decided the lis, keeping in view such observations with regret it is noted that learned trial Court, altogether ignored the observations of the District Appeal Court the observations must be honoured in order to avoid the successive remand orders and to curtail the agonies of the litigants and save the precious time of the Courts.

9. Perusal of the record reveals that the learned trial Court had not taken into consideration the directions given by the appellate Court in the earlier remand order and passed the decree even without referring to the same in the impugned judgment. Perusal of the remand order would reveal that the additional issues framed by the learned appellate Court were essential and necessary for arriving at a just conclusion qua the rights of the parties. Evidence on the record was not sufficient and it was not possible for the appellate Court to finally determine the suit of the parties, thus, there was no alternative except to remand the case so that the parties have sufficient chance to lead evidence to properly determine the rights of the parties strictly in accordance with the facts established on the record.

10. That the orders of the appellate Court remanding the case is strictly in accordance with law, justice and equity and calls for no interference.

11. Resultantly, there is no force in the instant revision petition, which is hereby dismissed in limine, with no order as to costs. Copy of this judgment be sent to District Judge/Zila Qazi, Swat for placing the same on the record of the case. H.B.T./202/P Petition dismissed.