2017 PLP 227 (MLD)

MUHAMMAD YOUNIS THAHEEM, J.

The petitioner has called in question the judgment and decree dated 13.07.2011 of learned Additional District Judge-I, Karak and that of dated 12.06.2003 of learned Civil Judge, Karak, whereby suit of petitioner was concurrently dismissed.

2. Brief facts of the case are that petitioner/ plaintiff instituted a suit against, the respondent/ defendant seeking decree for specific performance of agreement dated 25.05.1998, whereby it was agreed that the landed property belonging to the petitioner measuring 1 kanal 16 marlas inadvertently transferred in the name of the father of the respondent shall be returned to the petitioner by correction in revenue record. Beside that the market belonging to the parties wherein 5 shops are the ownership of petitioner, the respondent shall not intervene in the right of use and provide path of 10 feet in width in front of the said shops. Moreover, a sum of Rs.7250/- outstanding as loan against the respondent was also agreed to be returned to the petitioner, but in spite of repeated demands, the respondent did not abide by the agreement, hence, the suit. The respondent was summoned on appearance he contested the suit by submitting written statement. On divergent pleading of the parties, the learned trial court framed as many as seven issues including relief. Parties produced pro and contra evidence and on conclusion of trial the learned trial court dismissed the suit and appeal to the appellate Court also met the same fate. The petitioner filed revision Petition No.970/2004, before this court at principal seat Peshawar, which was accepted vide judgment dated 08.11.2010 and the case was remanded to the learned appellate court with the direction/ observation that provisions contained in Articles 17(2)(A) and 79 of the Qanun-e-Shahadat would not be applicable to the case, but instead sub clause "B" of Article 17 of Qanun-e-Shahadat would apply which requires that the matter can be proved by producing such other evidence as the circumstances of the case may warrant. The learned appellate court, after remand decided the case afresh and vide impugned judgment and decree dated 13.07.2011 dismissed the appeal. Hence, the instant revision petition.

3. Arguments heard and record perused.

4. From the available record and evidence, one could fail to infer that from which, Khata, Khasra number or the kind of ownership either shamilat or otherwise, the petitioner seeks 10 feet path in lieu of agreement, if he succeeded to prove his case. Further no aks Shajra Khishtwar or Khaka Tasveri, has been produced from which it could be deduced that such portion of the property the petitioner seeks to be mutated in his favour in view of the agreement, hence, the case could not be decided in vacuum. It is a case of 10 feet path, for factual spot position and possession appointment of local commission is necessary to bring on record factual spot position of the suit property. In such a situation this court is unable to decide the lis and the learned two courts below had overlooked this important aspect of the case, as well as the observation made by this Court in its remand order dated 08.11.2010, so in such a situation this Court has left with no other option except to accept the instant revision petition and remand the case to the learned trial court for amended plaint and decision of case afresh in accordance with law.

5. For the reasons discussed above, the instant revision petition is allowed, both the judgments and decrees of courts below are set aside and case is remanded to the learned trial court. Plaintiff is allowed to submit amended plaint by giving full descriptions of the suit property and passage particularly, as to which Khata, Khasra number it pertains or it is shamilat land or is ownership of respondent. The parties are allowed to produce further evidence if they needed. Learned trial court may appoint commission if need be. The learned trial court shall decide the case in light of observations made earlier vide judgment dated 08.11.2010 and of this court in this judgment, as early as possible preferably within six months. ZC/314/P Case remanded.