1987 PLP 613 (MLD)

(1) Whether the plaintiff is estopped to file the present suit by his own words and conduct? OPD (2) Whether the suit is not maintainable in its present form? OPD (3) Whether the plaintiff has no cause of action? OPD (4) Whether the value of the suit for the purpose of court-fee and jurisdiction is not correct, if so, what is correct valuation? OPD (5) Whether Ismail made any "Tamleek" in favour of the plaintiff of the suit land? OPP (6) Whether gift mutation No.681, dated 8-1-1980 is illegal against facts, fictitious and ineffective qua the rights of the plaintiff? OPP (7) Relief. The learned trial Court by its judgment and decree, dated 14-10-1986 dismissed the suit of the petitioner leaving the parties to bear their own costs. Feeling aggrieved the petitioner filed an appeal before the learned Additional District Judge who dismissed the same by his judgment and decree, dated 22-12-1986. Hence the present revision. The learned counsel for the petitioner contended that the learned trial Court failed to frame an issue regarding a specific plea set up by the petitioner in the plaint that Muhammad Afzal was not the grandson of Ismail, the donor and grandfather of the petitioner. He argued that serious illegality has been committed by the trial Court and as such the judgment of the said Court as also of the appellate Court are liable to be set aside especially when appellate Court also did not advert to this aspect of the matter. The only other contention of the learned counsel for the petitioner was that the findings of the trial Court as confirmed by the lower appellate Court on issues Nos.5 and 6 are based on misreading of record. I am afraid the contentions raised on behalf of the petitioner have no force. It is the admitted position that the petitioner did not claim any issue before the trial Court on the point that the respondent was not the (grand) son of the donor Ismail. Apart altogether from the above position, this plea of the petitioner has been controverted by the respondent and on the' point the parties were allowed to lead evidence by the trial Court which evidence has been duly taken into consideration by the said Court while coming to the conclusion that respondent was the grandson of the donor Ismail. In the discussion made by the trial Court on issues Nos. 5 and 6, it has been categorically held by the trial Court that the petitioner-plaintiff had completely failed to establish that the respondent was not the son of Muhammad Ali, the father of the petitioner. It has also been held by the trial Court under the same issues that Muhammad Afzal respondent by his evidence has established that he was the son of Muhammad Ali and grandson of Ismail. It is by now well established that a Court is competent to allow parties to lead evidence on a point alleged in the plaint and challenged in the written statement and give a decision thereon without E framing an issue and that omission to frame an issue specific regarding such a controversy does not vitiate finding on the point. Reference, if needed, in this behalf may usefully be made to The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others PLD 1971 S C 82 and Mst. Sardaran and others v. The Municipal Committee, Lyallpur through Administrator P L D 1961 Lah.

35. As regards the second contention I suffice by observing that apart from the position that- no material misreading of record has been brought out by the learned counsel for the petitioner. The issues in question relate to controversies of fact in which concurrent findings have been given by the two Courts below and, therefore, the same would not be open to question in the revisional jurisdiction of this Court. I may also observe that findings on these issues by the two Courts below are based on proper reading of the material evidence on record and no exception to the findings can validly be raised. In view of the foregoing discussion I find no merit in this petition which is accordingly dismissed in limine. M.Y.H./M-188/L Petition dismissed.