2009 PLP 303 (MLD)

ALI AKBAR QURESHI, J.

The petitioner through this civil revision calls in question the judgment and decree, dated 19-9-1998 and 16-5-1996 whereby the learned trial Court decreed the suit of the respondent whereas the appellate Court in appeal remanded the case to the learned trial Court for afresh decision, hence this civil revision.

2. Shortly, the facts as stated in the petitioner are that the predecessor-in-interest of the petitioner namely Muhammad Bashir son of Noor Muhammad and Muhammad Boota petitioner herein were uterine brothers from one Mst. Hashim Bibi. The said Hashim Bibi was divorced by one Noor Muhammad (father of Muhammad Bashir) predecessor-in interest of the petitioner and subsequently contracted marriage with one Lal Din, father of Muhammad Boota, petitioner herein. A dispute arose between the aforesaid uterine brother regarding agricultural land left by Lal Din, deceased, father of Muhammad Boota, petitioner herein. The aforesaid Muhammad Boota son of Lal Din for cancellation of Mutation No.134 of 1996 filed a suit for declaration stating therein that Lal Din, the father of Muhammad Boota/petitioner was owner of land measuring 10 Kanal 7 Marlas in Tehsil Pasrur District Sialkot who in the year, 1962 alienated his entire holding in equal shares to his son namely Muhammad Boota, petitioner and his uterine brothers Bashir Ahmad, deceased son of Noor Muhammad. The said alienation/sale was also mutated in the Revenue Record vide No.234, dated 3-8-1996. The respondent Muhammad Boota further stated in his plaint, that in fact his father namely Lal Din was owner of 90 Kanals, 11 Marlas, out of which the said Lal Din had only alienated 10 Kanals, 7 Marlas to both of them but deceased Bashir Ahmad (predecessor-in-interest of the respondent) mutated half land from the entire holding/ownership of 90 Kanals, 11 Marlas of deceased Lal Din, father of Muhammad Boota petitioner herein. Lastly stated in the plaint by Muhammad Boota, petitioner that his uterine, brother Bashir Ahmad was only owner to the extent of 5 Kanal, 3 Marla under the sale-deed executed in 1962 and was not entitled to inherit anything from rest of the property of deceased Lal Din. The petitioner Muhammad Boota while concluding the facts also stated that he is also entitled to inherit from the legacy of his uterine brother to the extent of the 1/6. The suit was vehemently contested by the predecessor-in-interest of the respondent Muhammad Ashraf. The learned trial Court, out of the pleadings of the parties, framed as many as six issues, recorded the evidence of the respective parties and finally decreed the suit in favour of the petitioner. The respondent assailed the said judgment and decree by filing an appeal before the learned District Judge. The learned Addl. District Judge after hearing the arguments of both the parties, remanded the case to the learned trial Court for fresh decision while framing an additional issue, hence this civil revision.

3. Learned counsel for the petitioner contended that the learned appellate Court committed serious jurisdictional error by remanding the case to the learned trial Court for afresh decision, although there was sufficient material available on the file to decide the case on merits. Also contended that the appellate Court wrongly reached to the conclusion and framed additional issue for the decision of the case, which is otherwise contrary to law and the facts of the case. Learned counsel also added to his argument that admittedly the contesting parties to the lis are uterine brothers and the respondent in any case cannot inherit more than his entitlement mentioned in the sale-deed executed by father of the petitioner in the year, 1962. Learned counsel also referred the sale-deed executed in the year, 1962 in favour of both the uterine brothers and tried to prove that the respondent is only entitled to half of the property. Lastly contended that in fact the father of the petitioner was owner of land measuring 90 Kanals, 11 Marlas who with his own consent alienated the land measuring 10 Kanals, 7 Marlas and claim of the predecessor-in- interest of the respondent as regards to the inheritance of the father of the petitioner namely Lal Din is totally against the law and principle of inheritance.

4. The learned Addl. Advocate-General appearing on behalf of the Province of Punjab submitted that the learned Appellate Court erred in law while remanding the case to the learned trial for afresh decision as the learned appellate Court in presence of the material available on the file could have decided the controversy. The learned Addl. Advocate-General placed reliance on 1993 SCMR 2018. The learned Addl. Advocate-General also submitted that admittedly the parties to the lis are uterine brothers and the uterine brothers namely Muhammad Bashir Ahmad predecessor-in-interest of the respondent is not entitled under the law to inherit from the estate of deceased Lal Din. Mr. Shahzad Nasir, Advocate appearing on behalf of the contesting respondents Nos.4 to 7 submitted that the learned Appellate Court has rightly framed the additional issues and remanded the case for afresh decision so no illegality or jurisdictional error was committed by the learned Appellate Court. The learned counsel also contended that the predecessor-in interest of the respondents Nos. 4 to 7 was entitled half of the land subsequently increased during the consolidation proceedings conducted in the village on the strength of the sale-deed executed by deceased Lal Din in the year, 1962. The learned counsel in support of his contention also referred the sale-deed of 1962 wherein it is mentioned that both the uterine brothers i.e. petitioner and the predecessor-in-interest of respondents Nos. 4 to 7 shall be owner in equal shares.

5. I have heard the learned counsel for the parties and perused the record.

6. The facts admitted by all the parties are (i) the petitioner and Bashir Ahmad predecessor-in-interest of the respondents Nos. 4 to 7 were uterine brothers; the sale-deed was executed in the year, 1962 by deceased Lal Din, real father of the petitioner regarding land measuring 10 Kanals, 7 Marlas in equal shares. The deceased Lal Din father of the petitioner, according to the Revenue Record, was also owner of land measuring 90 Kanal and 11 Marlas and Bashir Ahmad, deceased predecessor-in-interest of the respondents Nos. 4 to 7 under the law being the uterine brothers is not entitled to inherit anything from the estate left by Lal Din, deceased. Both the parties adduced their oral as well as documentary evidence and placed on record the maximum material to prove their contention. The learned Appellate Court has totally ignored the legal proposition involved in this case while remanding the case. When respondents Nos. 4 to 7 under the law of inheritance are not entitled to inherit from the estate of deceased Lal Din and the contents of the sale-deed executed in favour of the uterine brothers in the year, 1962 are also unambiguous regarding the share of the parties so there was no need at all to frame the additional issue or to remand the case for afresh decision. The available record is sufficient to decide the case finally instead of remanding of it. The learned Appellate Court keeping in view the aforesaid facts of the case and the legal proposition, it is sufficient to observe committed jurisdictional error by not deciding the case on the available material. The impugned judgment passed by the learned appellate Court is result of jurisdictional defect, legal infirmity, material irregularity, misreading and non-reading of evidence, therefore, the same is set aside. The learned Appellate Court is directed to decide the appeal after providing fair opportunities to all the parties on the available record.

7. As it is an old matter, the parties shall appear before the learned appellate Court on 20-10-2008 and the learned Appellate Court shall finally decide the matter preferably within a period of one month thereafter.

8. With these observations, this petition is allowed with no order as to costs. A.M.R./M-432/L Petition allowed.