FATEH MUHAMMAD Versus JAMILA AKHTAR
This revision petition is directed against the findings of the first appellate Court passed by Mr. Muhammad Nazeer Tahir, Additional District Judge, Sialkot, in Civil Appeal No.3 of 1995, whereby he after framing additional'issues remanded the case to the trial Court while setting aside the impugned judgment and decree dated 15‑6‑1994 passed by Mr. Salah‑ud‑Din Siddiqi, Civil Judge 1st Class, Sialkot, directing him to decide the case afresh after recording of the evidence of the parties on the additional issues.
2. Mst. Jamila Akhtar filed a suit for declaration with consequential relief claiming herself to be the exclusive owner of the suit property which is a house and the full details of which are given in the paragraph 1 of the plaints. According to her, the present petitioner Fateh Muhammad was her tenant. Through injunction she was seeking directions against the Excise and Taxation Officer, Sialkot, to the effect that her name be entered as a owner in the property tax record.
3. It was her case that Faqir Hussain, the original owner of the property bearing Municipal Committee No.5/157, Settlement No.18/173, Property No.XVIII‑6‑S‑76, was her real brother and both belonged to the Shia sect and upon his death, she has become the exclusive owner of the property. In paragraph 3 of the plaint she reflected the pedigree‑table while establishing her relationship with Faqir Hussain who according to her, died issueless.
4. The main defendant in this case Fateh Muhammad stated that the plaintiff was not the sister of the said Faqir Hussain Shah nor was Faqir Hussain Shah the owner of the suit property and that her suit was baseless and her claim was based on fraud.
5. The learned trial Court upon the pleadings of the parties had framed the following seven issues:‑‑
(1) Whether the plaintiff is the exclusive owner of the disputed house and the defendant No.2 Fateh Muhammad is her tenant in possession. in consequence of which the Excise Department is under obligation to correct the entry in P.T.I. Register wherein the name of the plaintiff is to be incorporated as owner of the house in dispute? (OPP)
(2) Whether the plaintiff has no locus standi and cause of action?. (OPD)
(3) Whether the claim of the plaintiff is time‑barred? (OPD)
(4) Whether the suit requires court‑fee? (OPD.2)
(5) Whether the plaintiff is estopped by her words and conduct to bring this suit? (OPD.2)
(6) Whether the defendant No.2 is in possession as owner under the Settlement scheme? (OPD.2)
(7) Relief.
6. Issue No. l was the main issue and this was discussed over a substantial portion of his judgment. His findings on issue No. l are reproduced below in extenso:‑‑‑
"This is the most material issue in the suit and the onus to prove this issue was upon the plaintiff. In order to prove this issue, the plaintiff has produced Abdul Wahid (District Nazir) Record Keeper of Settlement Department. He has deposed that he has not brought Register of P.T.D. but P.T.D. was issued in the name of Faqir Hussain son of Turab Ali. The P.W.3 (Saifullah) Record Keeper of Taxation Department has deposed that the Property No.X`JIII 6‑S‑76 is in the name of Amir Ahmad. The P.W.4 Shahid Hussain 40 years old and son of the plaintiff has deposed that Faqir Hussain is a brother of the plaintiff and his father's name is Muhammad Hussain, whereas Turab Ali is a real brother of Muhammad Hussain, Faqir Hussain used to write his father's name Turab Ali, but now Faqir Hussain started writing the name of his real father (Muhammad Hussain) instead of Turab Ali. The disputed house was owned by Faqir Hussain and Fateh Muhammad was his tenant. Faqir Hussain was Shia by faith and his sister. also belongs to same sect. In the cross‑examination, the P.W.4 has deposed that Turab Ali died 6 years prior to the death of Muhammad Hussain. Muhammad Hussain died in 1962. The plaintiff had second marriage with Maulvi Zahoor‑ul‑Haq who was Ahmadi by faith and remained till his death. In the suggestion, the P.W.4 has stated that it is incorrect that Fateh Muhammad has been in possession of the disputed house since 1947, but he got the possession as a tenant 8/9 years ago and before him Ibrahim was tenant who was uncle of Fateh Muhammad.
The P.W.5 has deposed that Faqir Hussain and the plaintiff are real brother and sister and their father's name was MuhantWad Hussain. The plaintiff was married with Maulvi Zahoor‑ul‑Haq who was Ahmadi by faith. The P.W.6 (Syed Ghulam Mustafa) has deposed that he is a relative of Muhammad Hussain deceased and Muhammad Hussain has one son and one daughter. Turab Ali was uncle of Faqir Hussain. Faqir Hussain used to live with his sister and Fateh Muhammad is in possession as a tenant. The P.W.6 has further deposed that he has been living at Shakargarh since 1947 and he had no knowledge about the marriages of the plaintiff with Ismail and Maulvi Zahoor ul‑Haq. He has further deposed that in his presence Fateh Muhammad never paid rent and Fateh Muhammad is not a tenant.
The P.W.7 prepared Exh.P.I (site plan). The plaintiff as P.W.8 has deposed that her uncle Turab Ali adopted her brother, Faqir Hussain. The disputed house was allotted to Faqir Hussain who died in 1984 and her brother Faqir Hussain used to write his father's name as Turab Ali till death of her uncle (Turab. Ali) and after the death of Turab Ali her brother Faqir Hussain started writing his own real father's name (Muhammad Hussain). She has further deposed that Fateh ‑Muhammad is a tenant under him.
On the other hand, the D.W.1 has deposed that Fateh Muhammad has been in possession over the disputed house since .the creation of Pakistan. The defendant (Fateh Muhammad) has not paid rent to any one and he (Fateh Muhammad) was not a tenant under anybody.
The D.W.2 had deposed that the defendant No.2 (Fateh Muhammad) has been in possession of the disputed house since 1947.
The D.W.3 (Fateh Muhammad) has deposed that he has been in possession since 1947 and he has not paid the rent to anybody.
The plaintiff is claiming right in the property on the ground that Faqir Hussain who was her real brother and he was adopted by her uncle Turab Ali who was real brother of Muhammad Hussain. Now the question for consideration is whether Faqir Hussain was adopted by Turab Ali or not. The plaintiff has produced Zahid Hussain son of Ismail (P.W.4), who is the plaintiff's son with her first husband. He states himself to be 40 years old. He has asserted that Muhammad Hussain expired some 30 years ago and then he states in 1962 and Turab Ali died prior to death of Muhammad Hussain i.e. 6 years. It means that P.W.4 (Zahid Hussain) was born in 1952 and in 1962 when Muhammad Hussain died he was about 10 years old and at the time of death of Turab Ali he was about 4 years old. If Turab Ali has adopted Faqir Hussain then he might have adopted before his death. So, how it is possible that a child of 4 years can explain event of his period of infancy. When a child of such an age cannot even realize what is happening in his surroundings, so in such circumstances, the deposition of Zahid is‑all concocted and it is originated just to support the fraud which has committed in getting P.T.O. (Provisional Transfer Order). So, the deposition of P.W.4 has no sanctity in the eye of law, it amounts to hearsay evidence and cannot be relied upon. The P.W.5 (Muhammad Younas son of Nawab Din) has not uttered even a single word anywhere in his deposition to substantiate this fact that Faqir Hussain was adopted by Turab Ali. The P.W.6 (Ghulam Mustafa) who claims himself relative of deceased Muhammad Hussain. He has also not uttered even a single word to substantiate this fact that Turab Ali adopted Faqir Hussain. It is evident from the above that all the independent witnesses are not supporting the version of the plaintiff, when her own's sons's deposition is a bundle of falscity. He has narrated whatever he has heard from the plaintiff to support the false version of the plaintiff, therefore, in such circumstances only the statement of the plaintiff is left which is unsupported, therefore, that has no value in the eye of law. This view find supports in the case‑law PLD 1993 Pesh, page 127, so it is evident from the above that the plaintiff could not establish by cogent and convincing evidence that Faqir Hussain was adopted by her uncle (Turab Ali), was the pivotal point on which the plaintiff has based structure of her story to get the right in property but she could not. Moreover, there is no cogent and convincing evidence on behalf of the plaintiff which proves that Faqir Hussain was a real brother of the plaintiff because she has produced her own son whose knowledge is hearsay. The P.W.5 who claims relationship with Muhammad Hussain has also no knowledge about the marriages of‑the plaintiff with Ismail and Maulvi Zahoor ul‑Haq. He also admits that he has been living at Shakargarh since 1947 and he has come to Sialkot one month ago and whatever he has narrated was told by Zahid Hussain son of the plaintiff. So, it is evident that the deposition of the P.W.5 has no value as he has got all the informations from Zahid Hussain who is an interesting witness. So, the relationship of the plaintiff with Faqir Hussain also appears to be doubtful. The plaintiff has also taken plea that Faqir Hussain had been using his father's name Turab Ali till the death of Turab Ali and after the death of Turab Ali, he started writing his own father's name. If such was the situation then why not Faqir Hussain during his lifetime tried to get declaration of such change of his father's name of the official document. There is no such document on record which substantiate this fact, so in such circumstances it is crystal clear that the plaintiff herself has prepared record of disputed house fraudulently and with the collusion of Settlement Department and she has also prepared false story which she has narrated in her plaint just to get fruit of her fraud.
The plaintiff has produced Exh.P.3 (P.T.O.) (Provisional Transfer Order), it is a basic document on which the plaintiff has built structure of her right. A careful examination of the place Exh.P.3 which the Court has marked with red ink, it reveals that the place was rubbed and name of Faqir Hussain, son of Turab Ali was substituted on the place and this place can be easily seen such act of the wrong‑doer with naked eyes. It is noteworthy that the plaintiff did not stress to call the original record to remove this doubt. So, this shows that the plaintiff intentionally did not stress to call the original record, so that her fraud may not expose, otherwise if it had been genuine then there was no reason for the plaintiff to call the original record and remove this ambiguity, so Exh.P.3, the P.T.D., was issued and all the document which are prepared on Exh,P.3 which is basic document, have no value In the eye of law. It is noteworthy that Exh.P.5 which is copy of Assessment Register in Form P.T.I. the name of the owner is incorporated as Amir Chand son of Jewan Mall. The Exh.P.6 is also copy of Assessment Form Register in Form P.T.I. the name of owner is Amir ‑Ahmad and the name of occupier is Fateh Muhammad. It is also noteworthy that P.T.I. was issued on 18‑3‑1960 and Faqir Hussain died in 1989 but during this period Faqir Hussain did not even bother to incorporate in the Register of P.T.I. the change of his ownership despite the fact that it was in the knowledge of Faqir Hussain, if he had applied for change of ownership then reality would appear on the surface of it Faqir Hussain had no knowledge about the allotment of the disputed house in his name but the plaintiff was kept quiet for the reason to get benefit after the death of Faqir Hussain, so this depicts mala fide and fraud on the part of the plaintiff just to devour the property which is not owned and allotted in reality to Faqir Hussain. The P.T.O. (Exh.P.3) is a bogus document and is prepared fraudulently.
Now the question for consideration is whether Fateh Muhammad is a tenant under the plaintiff or not. As I have discussed above that the plaintiff has got allotment of the disputed house by committing fraud and the basic document (P.T.O.) (Exh.P.3) is a forged and fictitious document, therefore, Fateh Muhammad cannot be a tenant under the plaintiff. Moreover, according to law the civil Court is not place to determine the relationship of landlord and tenant. The Rent Controller has the jurisdiction to decide the controversy of such nature.
In view of the above discussion. I have reached to the conclusion that the plaintiff has prepared fraudulently P.T.O. (Exh.P.3) with the collusion of Settlement Department and in order to perpetuate her fraud, she has made a, false and frivolous story just to get the disputed property, so the plaintiff has failed to prove this issue, so this issue is decided against the plaintiff."
7. Against issue No.2 his finding was that the document Exh~P.3 on the basis of which she claimed that her brother Faqir Hussain was allotted property in question was bogus and a forged document and, thus, he dismissed the suit while allowing the parties to bear their own costs: '
8. She took the matter in appeal before Mr. Muhammad Nazeer Tahir, learned Additional District Judge, Sialkot, through Civil Appeal No.3 of 1995. The learned first appellate Court thought that three additional issues were omitted. He framed the three issues and after setting aside the judgment and decree of the trial Court, remanded the case for decision afresh after production of evidence on the additional issues framed by him. While doing so, he said:
"I have heard arguments and gone through the record. The controversy between the parties is as to the appellant is legal heir of Faqir Hussain deceased being her real sister and that the disputed property was validly transferred by Settlement Department to the said Faqir Hussain deceased and that respondent was a tenant in the same. But no issue has been framed to resolve this controversy. Resultantly the matter has been decided without framing proper issues. Apart from the issues already been framed by the learned trial Court, the following additional issues are framed‑‑
(1‑A) Whether Faqir Hussain deceased was son of Muhammad Hussain and he had been adopted by his uncle Turab Ali? (OPP)
(1‑B) If issue No.1‑A is answered in affirmative, whether the plaintiff is real sister and sole heir of the said Faqir Hussain deceased? (OPD)
(1‑C) Whether the disputed property was validly transferred by the Settlement Department to Faqir Hussain deceased and that the defendant was in possession of the same as a tenant? (OPP)
The abovementioned additional issues are required to be decided after recording evidence of the parties and findings on these issues will resolve the controversy between the parties. Therefore, this appeal is accepted and impugned judgment and decree, dated 15‑6‑1994 is hereby set aside. The case is remanded to the learned trial Court with the direction to decide it afresh after recording evidence of the parties on the additional issues mentioned above. The parties are left to bear their own costs. "
9. So, the additional issues were to determine whether Faqir Hussain deceased was the son of Muhammad Hussain and he had been adopted by his uncle Turab Ali and whether the plaintiff was real sister, and thus, the whole heirs of the said Faqir Hussain and thirdly, whether the disputed property was validly transferred to Faqir Hussain and defendant was in possession as a tenant.
10‑ On all these facts, there is evidence on record and the learned first appellate Court should have felt no difficulty in disposing of these questions himself. The evidence has come on record on account of issue No. l which is a composite issue on the question about the ownership of the disputed house, the tenancy of the respondent Fateh Muhammad and whether the Excise Department was obliged to correct the entries in its record.
11 Anyhow if any of the parties wanted to adduce any additional evidence, they could have used the provisions of Order 41, Rule 27 of the I A Civil Procedure Code.
12. The findings of the learned first appellate Court appear erroneous on the following ground: (a) in case the first appellate Court wanted additional evidence to be recorded on the additional issues framed by it, it should have taken action under Order 41, Rule 25 of the Civil Procedure Code which reads as follows:‑‑
" Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from .‑‑‑ Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the appellate Court essential to the right decision of the suit upon, the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor. "
13. There was sufficient evidence on record and merely because certain issues had not been framed, the case could have still been decided on the basis of evidence already available on record. The learned first appellate 8 Court should have taken guidance from the provisions of Order 41, Rule 24 of C.P.C. which reads as follows:‑‑
" Where evidence on record sufficient Appellate Court may determine case finally. ‑‑‑Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resetting the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds."
14. The learned first appellate Court did not advert to these provisions of the Procedural. Law and remanded the case without realizing that the material was available on the file to help him in answering the controversy under reference.
15. Frequent remand of the cases is now an increasing tendency and this has to be checked. Courts are not supposed to remand a case outside the provisions of Order 41, Rules 24 and 25 of C.P.C. Use of these provisions, is to be made under exceptional circumstances requiring a determination of an essential fact at the level of the Courts below. So where the appellate. Court could itself dispose of a case, It should refrain from remanding a case C unless it feels that the evidence on record was not sufficient, got this too is to be invariably avoided particularly when the parties have had full opportunity of presenting their evidence, Besides Order 41, Rules 24 and 2s, C.P.C., an appellate Court uses its discretionary powers of remanding the cue under Order 41, Rule 23 of C.P.C. which reads as follows.
"Remand of case by Appellate Court .‑‑‑ Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, 'ay order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, with directions to re‑admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand."
16. Remand can also be made in exercise of inherent residuary powers (section 151, C.P.C.) under the following circumstances:‑‑
(a) where there has been erroneous exclusion of evidence;
(b) where the burden of proof has been placed on the wrong party;
(c) where the trial Court has misunderstood the case;
(d) where material issues have not been determined by the lower Court;
(e) where the suit was dismissed on the ground that it was brought in the name of the wrong plaintiff or wrong defendant;
(f) where the suit was found to be bad for multifariousness;
(g) where the decision is based on inadmissible evidence and such an evidence is reversed;
(h) that relevant facts have not been taken into consideration;
(i) without parties' consent to a remand;
(j) where amendment is allowed in the pleadings at an appellate stage;
(k) where plaint was wrongly rejected for non‑payment of court‑fee.
17. For checking the tendency of mechanical remands, it has become essential to ask all the learned District Judges to keep an account of cases E remanded by their Courts and the Courts of the learned Additional District Judges working under them and where they find mechanical working in this connection, they should report the matter to the M.I.T. for curative measures by this Court.
18. Before remanding the case, the first appellate Court should have gone through the record for ascertaining, whether it could decide the new issues on the basis of evidence.
19. After hearing the learned counsel from both the sides, this Court is of the view that the learned first appellate Court should decide the additional issues framed by itself either on the basis of evidence already recorded on issue No.l or any additional evidence which any party may seek to adduce being necessary. Therefore, the impugned order to the extent it remands the case to the learned trial Court is modified and now these issues are to be F determined and decided by the learned first appellate Court itself after allowing opportunity of hearing to both the parties..
20. The revision petition, is thus, accepted in these terms. Parties are directed to appear before the learned District Judge, Sialkot, on 20th of July, 1999, who may hear the case himself or entrust it to an Additional District Judge ‑for disposal in accordance with the aforementioned observations. There is no order as to costs.
Q.M.H./M.A.K./F‑106/L Revision allowed.