2014 C L C 1609
[Balochistan]
Before Muhammad Ejaz Swati, J
SHAH MUHAMMAD and 3 others ----Petitioners
Versus
ABDUL SAMAD and 6 others ----Respondents
Civil Revision No.176 of 2010, decided on 27th June, 2014.
Civil Procedure Code (V of 1908) ---
----O. XIV, Rr. 1, 3 & 5---Specific Relief Act (I of 1877), S.42---Suit for declaration ---Issue,
framing of ---Scope---Pleadings were not perused with diligent application of mind by the Trial
Court ---Issue with regard to the validity of impugned mut ation was not framed and parties had
failed to substantiate their claims by producing evidence ---Provisions of O.XIV, Rr.1, 3 & 5,
C.P.C. were ignored and findings recorded by the courts below were lacking the determination
on the points of real controvers y between the parties ---Trial Court was bound to frame proper
issues which had not been done and principal question of facts remained unattended---Judgments
and decrees of both the courts below suffered from material irregularities and illegalities ---Suit
land prior to impugned mutation was not owned by the owners in their independent and joint
capacity rather same was Shamilat Deh ---Patadaran of Shamilat Deh were required to be
impleaded as a party who were not impleaded as a party in the present case ---Impugned
judgments and decrees passed by the courts below were not sustainable which were set aside and
case was remanded to the Trial Court for decision afresh in accordance with law ---Revision was
accepted in circumstances.
Mst. Rasheeda Bibi v. Mukhtar Ahmed 2008 SCMR 1384 and Khalique Ahmed v. Abdul
Ghani PLD 1973 SC 214 rel.
Muhammad Aslam Chishti for Petitioners.
Muhammad Haroon for Respondents Nos.1 to 8.
Sardar Ahmed Halimi for Respondents Nos.10, 12, 14, 16 and 17.
Date of hearing: 13th June, 2014.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. --- This Civil Revision Petition is directed against the
judgment and decree dated 25th March, 2010 (hereinafter referred as to "the impugned
judgment") passed by the learned Majlis -e-Shoora Mastung (he reinafter referred as to "the
appellate Court") accepting the Civil Appeal filed by the respondent Nos.1 to 8, whereby, the
judgment and decree dated 5th November 2009, passed by the Qazi Dasht (hereinafter referred
as to "the trial Court") was set aside and the suit filed by the petitioners was dismissed.
2. The facts of the instant Civil Revision Petition are that the petitioners (plaintiffs) had
filed a suit before the trial Court against the respondents (defendants) for declaration, permanent
injuncti on, cancellation of Mutation Entry No.38, attested on 24th April, 2004, Mutation No.46,
attested on 6th March, 2007, Mutation No.47, attested on 8th March, 2007 and Mutation Entry
Nos.48 and 49, attested on 10th March, 2007 and 12th March, 2007 respectivel y, in all
measuring 138 rods, 18 poles, situated in Mahal, Mouza Mir Hazar, Tappa Spilingi, Tehsil
Dasht, District Mastung (hereinafter referred as to "the property in dispute"). It was averred that
the property in dispute was a portion of their Shamilaat, situated adjacent to their land bearing
Khewet No.94, 95, 98, 40, Khatooni No.97, 98, 99, 183, 184, 187 and Khasra No.592, 594, 596,
597, 599, 600, 601 and 602, and the father of the respondents Nos.1 to 7 with the connivance of
Revenue authorities throug h misrepresentation, vide Mutation No.38 on the basis of Intiqal -e-
Sehat got transferred the same on his name. The petitioners were unaware about this fact,
however, some days prior to filing the suit, they noticed that the respondents were installing a
rig-boring on the property in dispute, which was objected by them and when they obtained
copies of the revenue entries, they for the first time came to know about the said adverse entries.
3. The respondents Nos.1 to 8 (defendants) while submitting their w ritten statements
controverted the contention of the petitioners by raising certain legal objections as well as on
merits. It was mainly objected in the written statements that the lands of the petitioners are
situated in Mouza Mall Janubi, whereas, the di sputed property is situated in Mouza Mir Hazar,
for which the petitioners have had no concern. Initially, the learned trial Court rejected the plaint
under Order VII, Rule 11, C.P.C. and in appeal the said order was set aside on 10th June, 2008
by the appellate Court and remanded the case to the trial Court with directions to implead the
Patadaran of the Shamilaat as a party. Upon failure of the petitioners, the trial Court again
dismissed the suit under Rule 3 of Order XVII, C.P.C., which was set aside by the appellate
Court and the petitioners were again provided opportunity to implead the necessary parties. The
respondents Nos.9 to 17 were impleaded by the petitioners as a party.
4. The issues decided by the trial Court and the appellate Court in their respective
judgments are as under: ---
5. The petitioners produced five witnesses and got recorded their statement through
attorney. The respondents Nos.1 to 8 produced three witnesses and got recorded their statement
through attorney.
6. The trial Cour t after evaluating evidence on record vide judgment dated 5th November,
2009 decreed the suit filed by the petitioners. The respondents Nos.1 to 8 assailed the judgment
and decree of the trial Court by filing Civil Appeal No.88 of 2009 before the Majlis -e-Shoora
Mastung, where after notice and hearing, the appellate Court vide impugned judgment allowed
the appeal and set aside the judgment and decree of the trial Court and dismissed the suit of the
petitioners.
7. The learned counsel for the petitioners c ontended that the appellant Court fell in grave
error while allowing the appeal on wrong premises of law and facts; that the material evidence
produced by the petitioners has been ignored by the appellate Court causing miscarriage of
justice; that the real controversy related to the impugned mutation entries have neither discussed
nor determined by the appellate Court; that the appellate Court has not recorded the point for
determination and reverse the judgment and decree of the trial Court without making findings on
the questions involved, therefore, the impugned judgment and decree is contrary to the Rule 31
of Order XLI of the C.P.C.; that the impugned judgment reflects misreading and non -reading of
the evidence, therefore, same is liable to be set aside.
8. The learned counsel for respondent Nos.9 to 17 while adopting the arguments of the
learned counsel for the petitioners stated that the appellate Court has reversed the findings of the
trial Court merely on the ground that necessary/proper parties ha ve not been arrayed in the suit,
whereas, respondents Nos.9 to 17 were impleaded as a party and in the absence of any findings
of the appellate Court that they were not necessary party, the inference of the appellate Court is
based on presumption. It is further argued that even no suit can be defeated by reason of
misjoinder and non- joinder of the parties as provided under Order I, Rule 9, C.P.C., therefore,
the impugned judgment and decree passed by the appellate Court is liable to be set aside.
9. The l earned counsel for the respondent Nos.1 to 8 contended that the lands of petitioners
are situated in Mouza Mall Junobi, whereas, disputed property is situated in Mouza Mir Hazar,
for which the petitioners have no concern; that the petitioners are neither P atadaran of the
Shamilaat land nor they had any locus standi to file the suit against the respondents Nos.1 to 8;
that the trial Court had passed judgment and decree without considering the evidence on record
and real controversy between the parties, there fore, findings rendered by the trial Court were
contrary to record; that the appellate Court while attending the real controversy between the
parties after dilating upon the evidence in its true perspective rendered the judgment and decree
on the question involved which neither reflect misreading or non- reading of evidence; that the
petitioners couldn't produce any evidence to substantiate their contention regarding share holder
in the Shamilaat land situated in Mouza Mir Hazar, therefore, the appellate Cou rt rightly held so,
and impugned judgment and decree is based on sound reasoning and liable to be sustained.
10. Having heard the learned counsel for the parties and considering the evidence on record
and law. The perusal of record of the case reveals th at vide Mutation Entry No.38 dated 14th
April, 2004 i.e. Exh.P -1/A, the Shamilaat land of Mouza Mir Hazar was transferred on the name
of father of respondents Nos.1 to 7, namely, Jamal Khan and on the basis of said entries,
Shamilaat land was converted int o an ownership through Intiqal -e-Sehat (correction of mutation
entries). The record further reveals that after the demise of said Jamal Khan, through inheritance
Mutation No.46 (property in dispute) was transferred to respondents Nos.1 to 7 (defendants), a nd
through Mutation Entry Nos.47, a piece of land was gifted by the respondents Nos.1 to 7 in
favour of respondent No.8 (defendant)and thereafter through Mutation No.49, the property in
dispute was partitioned amongst respondents Nos.1 to 3 (defendants). T he foundation of all
subsequent mutation entries are based on Mutation No.38 Exh.P -1/A. The real controversy
between the parties hinges upon Mutation No.38, and subsequent entries were offshoot of the
Mutation No.38, though Issue No.8 was framed, yet it di d not include Mutation No.38. The
record shows that pleadings were not perused with diligent application of mind by the trial Court
and the issue about the validity of Mutation Entry No.38 could not be framed and resultantly the
parties failed to substantiate their respective claim by producing credible evidence. Provisions of
Rules 1, 3 and 5 of Order XIV, C.P.C. were ignored as a result whereof the findings of the trial
Court and the appellate Court thereto are lacking the determination on the point of re al
controversy between the parties. Duty of raising issue under C.P.C. vested on the Court to frame
proper issue which has not been done and principal question of facts remained unattended, on the
basis whereof the judgment and decree of both the Courts be low suffer from material
irregularities and illegalities. Reference may be made to the case of Mst. Rasheeda Bibi v.
Mukhtar Ahmed (2008 SCMR 1384), wherein it was held as under: ---
"In the case of Ananta Kumar Majumdar and others v. Gopal Chandra Majum dar and
others PLD 1961 Dacca 65, it has been held that plea that framing of a particular issue was not
pressed by party affected is no ground for condoning failure to frame necessary issue and the
mandate of Order XIV, rule 1, C.P.C. reveals that it is incumbent upon the court to frame issues
in the light of the controversies raised in the pleadings and after examination of the parties, if
necessary. Issues of law and facts are to be illustrated clearly, to enable the parties to understand
the points at is sue to support their respective claims by recording evidence on all material point.
It is settled principle of law that "action or inaction" on the part of the court cannot prejudice a
party to litigation and the failure of courts below to determine materi al issue amounting to
exercise jurisdiction illegally or material irregularity. Reference can be made to the cases of Mst.
Hafizan v. Muhammad Yasin and 2 others 1985 CLC 1448, Muhammad Khalid and another v.
Muhammad Iqbal and another 2005 CLC 970, Barkat Bibi and others v. Mst. Gaman Bibi and
others 2005 MLD 280, Azizur Rehman v. L.D.A. 1985 CLC 2028, Muhammad Mansha and
others v. Sabir Ali 1999 SCMR 1782, Muhammad Iqbal through Legal Heirs and others v. Khan
Muhammad through Legal heirs and others PLD 1999 SC 35; The State v. Asif Ali 1997 SCMR
209, Ghulam Haider and others v. Mst. Raj Bharri and others PLD 1998 SC 20 and Fateh Khan
v. Boze Mir PLD 1991 SC 782. In the case in hand we find that proper legal issues have not been
framed by the trial Court fully reflecting pleadings of the parties and this important aspect
escaped notice of the Courts below."
11. The other important aspect of the case is that the Mutation Entry No.38 Ex.P -1/A was
Shamilaat land prior to its sanction in favour of Jamal Khan (the father of respondents Nos.1 to
7), it was therefore, obvious that the suit -land prior to Mutation No.38 was not owned by the
owner in their independent or joint capacity rather it was Shamilaat Deh i.e. a common land
reserved for all the Patadaran in accordance with their respective shares, but in pursuant to
Mutation Entry No.38 all the Patadaran of Shamilaat were not impleaded as a party. It is mandate
of law that in respect of joint holding at all the Patadaran are reqired to be impleaded as a party
as laid down by the Hon'ble Supreme Court of Pakistan in case of Khalique Ahmed v. Abdul
Ghani (PLD 1973 SC 214) as under: ---
"a suit for possession can be brought by all the co- owners jointly. It is open, however, to
one of them also to sue for posses sion, but he must join the other co- owners as defendants and
the decree will be for joint possession and not in favour of the plaintiff only."
The trial Court as well as the appellate Court did not advert upon the above important
feature and legal aspect of the case from taking into consideration, thus, it would be under legal
duty to interfere and correct the irregularities and illegalities committed by the Courts below,
therefore, the judgment and decree passed by the Courts below are not sustainable.
In view of the above, this Civil Revision Petition is partly allowed and in exercise of
powers conferred under section 115, C.P.C., the judgment and decree dated 5th November 2009,
passed by the Qazi Dasht and judgment and decree dated 25th March, 2010, passed by the
Majlis -e-Shoora Mastung are set aside, in result, the case is remanded back to the trial Court for
fresh decision after impleading the shareholders of the Shamilaat pursuant to Mutation Entry
No.38 as a party and after framing additional is sue in respect of validity of Mutation Entry
No.38, and to provide opportunity to the parties to produce evidence, within 6 months from the
date of receipt of copy of the judgment of this Court.
AG/50/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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