FAZAL MAHMOOD Versus TAJAR KHAN

This revision petition arises from the judgment and decree of the learned Addl. District Judge, Mardan, dated 26th November, 1983 affirming the judgment and decree of the learned Civil Judge 1st Class, Mardan dated 10th of March, 1980 dismissing the suit of the plaintiffs for ejectment of defendant No.1 from the house in dispute situate in villages Sawaldher, Tehsil and District, Mardan and for recovery of Rs.120 as arrears of rent for the period from 1‑2‑1978 to 1‑2‑1979 at the rate of Rs.10 per mensem or in the alternative for possession by partition of 70/104 share measuring 2 Marlas 6‑1/2 Sarasai of the disputed house.

2. The facts giving rise to this petition are that the disputed house admittedly belonged to the plaintiffs and defendants Nos. 2 to 5. The plaintiffs sued defendant No.1 for his ejectment from the disputed house on the allegations that defendant No.1 was tenanting the house in dispute on payment of Rs.10 per mensem to pro forma defendants Nos. 2 to 5 but having failed to pay the rent for the year prior to the institution of the suit he was liable to ejectment on* the ground of default. In case defendant No.1 proved himself to be a vendee on behalf of defendants Nos.2 to 5 then in that case the plaintiffs sought the relief for possession by partition of 70/104 share therein.

3. The suit was obviously strenuously contested by the defendant No.1. on a number of legal and factual pleas. The case of defendant No.1 as set up in the written statement in substance was that the disputed house had fallen to the share of plaintiffs Nos.6, 7, 8 and defendant Nos. 2 to 5 by virtue of a private partition between the descendants of Ahmad Gul predecessor‑in‑interest of the plaintiffs and defendants Nos. 2 to 5 and that they had sold it to him on the strength of an agreement dated 25‑2‑1975 on receipt of Rs.6,000 as sale consideration and, therefore, he disowned his tenancy and set up his title thereto. Defendants Nos.2 to 5‑confessed judgment.

4. The pleadings of the parties gave rise to the following issues:

(1) Whether the plaintiffs have got a cause of action? O.P.P.

(2) Whether the plaintiffs are the owners of the suit house? O.P.P.

(3) Whether the suit is incompetent in its present form? O.P.D.

(4) Whether the suit is incompetent under Order 7 of the C.P.C.? O.P.D.

(5) Whether the suit is not within time? O.P.D.

(6) Whether the suit is bad for non‑joinder of necessary parties? O.P.D.

(7) Whether the plaintiffs are estopped to bring the present suit by their own conduct? O.P.D.

(8) Whether plaintiffs 6 to 8 and defendants 2 to 5 made contract for sale in favour of defendant 1 on 18‑8‑1975? O.P.D.

(9) Whether the right of the defendant No.1 is protected under section 41 of the Transfer of Property Act? O.P.D.

(10) Whether the defendant No.1 effected improvements in the suit house and is entitled to it? O,P.D.

(11) Whether the suit is collusive, if so, its effect. O.P.D.

(12) Whether the plaintiffs are entitled to the decree as prayed for ?O.P.P.

(13) Relief.

Fazal Mahmood plaintiff No.1, apart from himself, examined Hassan Gul P.W.2 and closed his evidence. ,Tajar (Incorrectly described as Tajbar) defendant No.1, besides himself, examined Mian Abdur Rehman, scribe of the agreement dated 18‑8‑1975, photo copy Exh.D.W.l/1, Haji Taban Shah, a marginal witness thereof, Sultan Muhammad Patwari Halqa and Qasim Jan. The learned trial Judge took up issue No.8 first and held that defendants Nos.2 to 5 and some of the plaintiffs as the owners of the suit house had sold it to defendant No.1 on payment of Rs.6,000 as sale consideration. In this context, the learned trial Judge further observed that after the evidence of the parties was closed, defendant No.2 and the plaintiffs were directed to produce agreement No.6449 dated 25‑2‑1975 qua the private partition of the predecessor‑in‑interest of the plaintiffs and defendants Nos. 2 to 5 but they refused to do so on 10‑3‑1980 at the instance of plaintiff No.1. The learned trial Judge impliedly drew a presumption against the plaintiffs and thus decided the issue in favour of defendant No.1. On issue No.11, the learned trial Judge held that the suit was not only collusive but was based on fraud and mala fides and decided it against the plaintiffs although it should have been decided in favour of defendant No.1. His finding on issue No.9 was that defendant No.1 had, purchased the suit house by virtue of deed Exh.D.W.l/1 for valuable consideration and his rights were protected under section 41 of the Transfer of Property Act (IV of 1882). The plaintiffs were held as estopped to bring the present suit. Similarly, issue No.2 was decided against the plaintiffs and it was held that they have not remained as owners of the suit house after its sale to defendant No.1. Defendant No.1 was held to have spent "huge amount in the suit house after its purchase" and thus issue No.10 was decided in favour of defendant No.1. Issue No.1 was decided against the plaintiffs. Issues Nos.3 to 6 were not pressed at the Bar while issue No.12, in view of the findings on issues Nos. 8, 7 and 10 was decided against the plaintiffs and defendants Nos. 2 to 5. In view of the findings on the issues as aforesaid, the learned trial Judge, as stated earlier, dismissed the suit on 10‑3‑1980. Feeling aggrieved, Fazal Mahmood etc. filed an appeal before the learned Additional District Judge, Mardan, which was dismissed in a very perfunctory manner on 2ti‑11‑1983. In this context para. 4 of the judgment, whereunder the entire case has been virtually disposed of in its entirety; is reproduced below:‑

"I gave my anxious thought to the arguments advanced from either side and examined the material available on the record. The main issue, in my humble opinion, in the present case is issue No.3, but unfortunately no finding has been given by the trial Court on this issue. From the plain reading of the plaint, it is clear that the partition of the suit house has been sought by the plaintiffs, but at the same time the entire joint property has not so far been sought in partition. In the light. of a chain of authorities suit for partition out of a joint holding is incompetent. I, therefore, dismiss this appeal but on the ground that the suit is incompetent in its present form."

Hence this revision. .

5. Mr. Tasleem Hussain, learned counsel for the petitioners, has questioned the findings of the two Courts below on crucial issues Nos. 8, 9 and 12 and maintained that the agreement, photo copy Exh. D.W.1/1, dated 18‑8‑1975 was not a sale‑deed but could be merely branded as an agreement. to sell and unless the suit for specific performance is brought by respondent No.1 and first the preliminary decree followed by the final decree had been passed in his favour he could not defend the claim of the petitioners and pro forma respondents Nos.2 to 5. According to him, if the deed photo copy Exh.D.W.1/1 is held to be a sale‑deed then the same being an unregistered document would not confer title on respondent No.1 under section 41 of the Registration Act. He next submitted that the failure of respondent No.1 to cross‑examine plaintiff No.1 on the point of private partition and allocation of the disputed house to defendants Nos. 2 to 5 would not be of any avail particularly when the executants are the female Pardahnashin ladies whereby the burden of genuineness of the transaction heavily lay upon him. The learned counsel had serious criticism on the reaction of the learned trial Judge qua the failure of defendants Nos. 2 to 5 to produce deed No.6449 dated 25‑2‑1975 and in drawing an adverse inference against the petitioners. In support of the proposition that an instrument requiring compulsory registration under the Registration Act but not so registered does not operate to create declare, assign, ....any right, title in any immovable property the learned counsel cited Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd. PLD 1976 SC 781 and Abdul Jalil and another v. Ajoon and 20 others PLD 1989 Pesh.127. In support of the proposition that the alleged alienation having been made by Pardahnashin ladies and that it was for the transferee respondent No.1 to prove the genuineness thereof, reference was made to Janat Bibi v. :Sikandar Ali and others PLD 1990 SC 642.

6. Mr. Ghulam Naqashband Khan, learned counsel appearing on behalf of respondent No.1, submitted that the execution of the agreement, photo copy Exh. D.W.1/1, dated 18‑8‑1975 on behalf of plaintiffs Nos.6, 7, 8 and defendants Nos. 2 to 5 had been legally proved by examining the scribe and the marginal witness thereto and referred to Article 79 of the Qanun‑e‑Shahadat, 1984. He further submitted that there was a recital in the said deed itself be reference to another agreement No.0449, dated 25‑2‑1975 qua the exclusive rights of plaintiff No.1 and his sisters in the disputed house and, therefore, the. ' suit and the appeal of the petitioners were rightly dismissed. According to him, the disputed house and 3 other houses belonged to Ahmad Gul predecessor‑in -interest of the plaintiffs and defendants Nos.2 to 5 and that the plaintiffs having failed to include the entire property in the suit for partition, their suit was bad for incompetency which objection was rightly entertained by the learned appellate Court and dismissed their appeal. Lastly, on the authority of Haji Ghulam Qasim v. WAPDA and 2 others PLD 1989 Lah. 476 the learned counsel submitted that the petitioners were required to have made out a case )f jurisdictional error in the judgment passed in appeal. The appellate Court has rightly not set aside the trial Court's decree on the basis of such irregularity in the disposal of the suit and, therefore, there existed no ground for exercise of revisional jurisdiction of this Court.

7. It is disquieting to note that in large number of appeals against the judgments and decrees passed by them the Civil Judges have, and the trial Judge herein is no exception to that, in flagrant violation of Order XIV, C.P.C., resorted to frame what is generally called a omnibus issue such as, `Is the plaintiff entitled to the decree prayed for' Most of the cases have to be remanded for framing of proper issues in that the parties have been seriously prejudiced at the stage of trial.

It has been stressed in the High Court Rules and Orders Volume 1 Chapter 1‑F para. 14 that the trial of a suit falls into two broad divisions ...the first part leading upto and including the framing of issues and the second consisting of hearing of evidence produced by the parties on these issues and the decision thereon.

In some cases, I have been informed, the framing of the issues is left to the Counsel of the parties concerned. This practice is illegal and must cease forthwith, for the Code contemplates that the presiding officer of the Court would himself examine the pleadings, get the points in dispute elucidated and frame issues thereon.

It has been emphasized in the Rules aforesaid that the main foundation for the issues is supplied by the pleadings of the parties viz, the plaint and the written statements. But owing to the ignorance of the parties or their counsel it is frequently found that the facts are stated neither correctly nor clearly in the pleadings on the date fixed for the settlement of issues. The Court should therefore, carefully examine the pleadings of the parties and see whether, allegations of facts made by each party are either admitted or denied by the opposite party as they ought to be. If any allegations of facts are not so admitted or denied in the pleadings of any party, either expressly or by clear implication, the Court should proceed to examine the party as contemplated by subrule (5) of Rule 1, Order XIV, C.P.C. and proceed to question the party, or his counsel and record categorically his admission or denial of those allegations.

I The attention of the Civil Judges is, therefore, invited to Order XIV, C.P.C., and Rules aforesaid. It contains gist of this directive which is reproduced in extenso for the guidance of the Civil Judges:‑

"14. When the pleadings have thus been exhausted and the Court has before it the plaint, pleas, written statement, admissions and denials, recorded under Order X, Rule 1, examination of parties, recorded under Order X, Rule 2, and admissions of facts or documents made under Order XII of the Code, it will be in a position to frame issues correctly upon the points actually in dispute between parties. Each issue should state in an interrogative form one point in dispute. Every issue should from a single question, and as far as possible issues should not be put in an alternative form. In other words, each issue should contain a definite proposition of fact or law, one party avers and the other denies. An issue in the form, so often seen, of a group of confused questions is no issue at all, and is productive of nothing but confusion at the trial. A double or alternative issues generally indicates that the Court does not see clearly on which side or in what manner the true issue arises, and on whom the burden of proof should lie, and an issue in general terms such as `Is the plaintiff entitled to a decree' is meaningless, if there are more defendants than one who make separate answers to the claim, the Court should note against each issue the defendant or defendants between whom and the plaintiff the issue arises".

8. After hearing the learned counsel for the parties at length and perusal of the record, I have formed the opinion that both the Courts below in general and the learned trial Judge in particular have failed to appreciate the real controversy that survived between the parties after filing of the written statement. Obviously, the petitioners have misreably failed to substantiate their plea by any evidence worth the name that defendant No.1 was in occupation of the disputed house as tenant. In consequence, the plea raised by defendant No.1 that the disputed house had fallen to the share of defendants Nos. 2 to 5 and plaintiffs Nos. 6, 7 and 8 and in that capacity sale thereof by them only survived for determination. To the misfortune of the parties, the learned trial Judge had not at all adverted. to this plea which was very categorical and was the bed‑rock of the case set up by defendant No.1 in his written statement and which was not reduced to any issue. Had it been so framed, the parties would have been able to adduce evidence and a lot of delay and expense incurred by I the parties during the trial would have been obviated. The learned appellate Court had also got rid of the case by merely adverting to the incompetency of the suit on account of petitioners' failure to include the entire joint property of the successor‑in‑interest of Ahmad Gul. The learned appellate Court ought to have framed issue in exercise of his powers under Order 41, rule 23 or rule 25, C.P.C., and would have either decided the appeal if there was sufficient evidence or would have remanded the case for trial de novo at least on the pivotal issue.

9. In this view of the matter, while striking out issue No.12, the following additional issues are framed:‑

(1) Whether the disputed house had fallen to the share of plaintiffs Nos. 6, 7, 8 and defendants Nos. 2 to 5 by virtue of private partition?

(2) If additional issue No.1 is proved whether plaintiffs Nos.6, 7, 8 and defendants Nos. 2 to 5 have transferred the disputed house in favour of defendant No. 1 by way of sale?

10. In consequence, I am reluctantly constrained to accept this petition in revision, set aside the judgments and decrees of the Courts below and remand the case to the learned trial Judge to hold trial de novo after giving opportunity to the parties to file fresh lists of witnesses if they so desire and examine any evidence which the parties intend to adduce and then decide the case afresh according to law. I have decided to refrain from making any observations on the respective contentions raised on behalf of the parties reproduced in paras. 5 and 6. The learned trial Judge would be at liberty to take into consideration the aforesaid contentions and give findings thereon. Costs to follow the event.

AA./1352/P Case remanded.