MASTAN SHAH Versus SHAIR ZAIDA

JOHAR ALI, J.--- The petitioners/defendants have filed the instant Civil Revision petition under Section 115, C.P.C. read with Section 151, C.P.C. for setting aside the impugned judgment/order dated 20/05/2023, passed by the learned District Judge Ghizer, in C.F.A. No. 33/2022, whereby, the appeal filed by the present petitioners/defendants has been dismissed by the learned District Judge Ghizer by upholding the judgment/decree dated 03.06.2022, passed by the learned Senior Civil Judge Ghizer in Civil Suit No.124/2015.

2.Brief facts of the instant revision petition as per contents of the petition are that the present respondent/plaintiff had filed a Civil Suit against the present petitioners/defendants with the contentions that he had purchased the suit land from the petitioner/defendant No.1 through sale deed dated 02-09-2003 against the sale consideration of Rs.370,000/- and has been enjoying the ownership as well as possessory rights since 2003. Later on, the respondent/plaintiff has also purchased the share of water from one Muhammad Ali Khan, against the consideration of Rs.30,000/- Further, the respondent/plaintiff contended that he was out of the city due to his personal engagement and in his absence, the petitioners/defendants tried to interfere into his peaceful possession over the suit property and the petitioner/defendant No.3 is interfering into his ownership rights, hence, the respondent/plaintiff has filed the suit in hand.

3.The petitioners/defendants contested the suit and filed their joint written statement, wherein, they have denied the claim of the respondent/plaintiff and raised many legal as well as factual objections. On the facts, the petitioners/defendants contended that the alleged sale deed in favour of respondent/plaintiff is fake. They further contended that a civil suit titled Haiti Muhammad v. Master Shah has been decided between the parties in respect of subject matter on the basis of the compromise and registered sale deed executed in favour of the petitioners/defendants was declared as legal. They further averred that the owner of the suit land, i.e., petitioner/defendant No.1 has sold the same through registered sale deed No.33/04 against the sale consideration of Rs.250,000/- and later on transferred to petitioner/defendant No.3 through exchanged and has been enjoying the possessory as well as ownership rights and prayed for dismissal of the suit with cost.

4.From the divergent pleadings of the parties, the learned Trial Court has framed the following 14 issues including issue of relief to determine the fate of the suit:-

2. Whether the suit is within time? OPP

3. Whether the plaintiff has purchased the suit land from defendant No.1 against the sale consideration of Rs.370,000/- vide sale deed dated 02-09-2023 attested on 19-09-2003? OPP

4. Whether the plaintiff has constructed the boundary wall at north side and has been enjoying the possessory as well as ownership right? OPP

5.Whether the plaintiff has purchased the share of water for the suit land from Muhammad Ali Khan against the consideration of Rs.30,000/-? OPP

6.Whether the suit is rejectable under Order VII Rule 11, C.P.C.? OPD

7.Whether the suit is not maintainable due to non-joinder of necessary party? OPD

8.Whether the suit was pending for adjudication between Hati Muhammad and defendant No. 1 in respect of ownership and possession which has been disposed of on the basis of composition wherein the transfer of suit land through registry in favour of defendant No.2 has been admitted? OPD

9.Whether the four corner of the suit land has been mentioned incorrect as such the suit is rejectable? OPD

10.Whether the sale deed dated 19-09-2003 presented by the plaintiff is forged and fabricated? OPD

11.Whether suit land has been sale out by the defendant No.1 to defendant No.2 through registered sale deed No.33/2004 against the consideration of Rs.250,000/- along with water? OPD

12.Whether the defendant No.2 had exchanged the suit land with a piece of land at Chilas with defendant No.3 some 4/5 years ago? OPD

13.Whether defendant No.3 is in possession of suit land and developed a part of land and dumped a construction material at site and also incurred a million of rupees? OPD

14.Relief?

5. After framing of issues and recording pro and contra evidence of the parties, the learned Trial Court decreed the suit filed by the respondent/plaintiff vide judgment/decree dated 03-06-2022. Being aggrieved and dissatisfied from the same, the petitioners/defendants preferred Civil First Appeal No.33/2022 before the learned District Judge Ghizer and the learned District Judge Ghizer vide its judgment/decree dated 20-05-2023 dismissed the appeal by maintaining the judgment/decree dated 03-06-2022 passed by the learned Trial Court. Being aggrieved from the same, the petitioners/defendants have preferred the instant Civil Revision Petition.

6. The learned counsel for the petitioners/defendants resisted the grounds of revision petition and further strenuously contended that the judgments/decrees passed by both the Courts below are outcome of misreading and non-reading of evidence, hence, the same are not maintainable in the eye of law and this fact was also not appreciated by the 1st Appellate Court and has countersigned the judgment of Trial Court. The learned counsel further contended that both the learned lower Courts have decided the case in violation of parameters prescribed by the Superior Courts, therefore, this Court has ample jurisdiction to interfere in the concurrent findings of facts arrived by both the Courts below, while exercising powers under Section 115, C.P.C. The learned counsel further argued that the learned Trial Court has failed to settle the proper issues regarding the main controversy between the parties which is alleged in their pleadings, hence, the instant case may kindly be remanded to the learned Trial Court with the direction to settle the issues in accordance with the pleadings of the parties. The learned counsel for the petitioners/defendants further submitted that suit land has been purchased by the petitioner No.1 from petitioner No.2 through registered sale deed No.33/04 dated 01-04-2004 in consideration of Rs.250,000/- and since then the petitioner No.2 is owner in possession of the same while respondent/ plaintiff has failed to prove the alleged sale deed through reliable evidence, hence, both the judgments/decrees passed by the learned lower Courts are able to be set aside. The learned counsel further contended that the alleged sale deed in favour of respondent/plaintiff is fake. They further contended that a civil suit titled Hati Muhammad v. Mastan Shah has been decided between the parties in respect of subject mater on the basis of a compromise and registered sale deed executed in favour of the petitioners/defendants and the said sale deed was declared as legal. They further averred that the owner of the suit land, i.e., petitioner/defendant No. 1 has sold the same through registered sale deed No. 33 of 20224 against the sale consideration of Rs. 250,000/- and later on transferred to petitioner/defendant No.3 through exchange and has been enjoying the possessory as well as ownership rights. The learned counsel lastly prayed for acceptance of the instant Civil Revision petition and to strike down the judgments/decrees of both the Courts below and further prayed for dismissal of the suit filed by the respondent/plaintiff with costs.

7. On the other hand, the respondent/plaintiff was proceeded ex-parte vide order sheet dated 24-06-2024 and case was fond for ex-parte arguments. The learned counsel for the respondent/plaintiff appeared on 14-10-2024 and requested for setting aside ex-parte proceedings. Request of the learned counsel for the respondent/plaintiff was allowed and case was fixed for arguments on 22-10-2024. After then, the respondent/plaintiff remained absent for onward proceedings, hence, the respondent/plaintiff was again proceeded ex-parte and ex-parte arguments were heard on 23-10-2025.

8. I have heard the ex-parte arguments advanced by the learned counsel for the petitioners/defendants and also perused the record with their able assistance.

9. After hearing ex-parte arguments of the learned counsel for the petitioners/defendants and perusal of the record, I find that the contentions/assertions of the respondent/plaintiff in his title of suit is that he is owner in possession of the suit land through sale deed dated 02-09-2003 against the sale consideration of Rs.370,000/- and has been enjoying the ownership since it purchased from petitioner/defendant No.1, while the claim of petitioners/defendants is that the alleged sale deed in favour of the respondent/plaintiff is fake. Moreover, the contention of the petitioners/defendants is that the suit land has been sold out by the petitioner/defendant No.1 to petitioner/defendant No.2 through registered sale deed No.33/04 dated 01-04-2004 against the sale consideration of Rs.250,000/- and later on transferred to petitioner/defendant No.3 through exchange and has been enjoying the possessory as well as ownership rights. At the trial, both the parties to the suit produced oral as well as documentary evidences to prove their respective version. Respondent/plaintiff stated his case on oath and also produced two witnesses namely Muhammad Ali Khan and Hazrat Dawood and relied upon sale deed dated 02-09-2003 (Exh.P/1) and sale deed dated 19-03-2002 (Exh.P/2) and closed the evidences. Petitioners/defendants stated their case through petitioner/defendant No.1 and also produced six witnesses, besides relied upon the documentary evidence Exh.D/1 to Exh.D/5 and closed their evidence. I carefully examined the statements of PWs as well as DWs and also perused the documentary evidences adduced by the parties and come to the conclusion that both the parties have failed to fully substantiate their claim through cogent, reliable and convincing evidence so far produced by the parties, i.e., not enough in my view to resolve the controversy between the parties. I also perused both the judgments/decrees passed by the learned Courts below and come to the conclusion that both the judgments/decrees of the learned lower Courts have been passed in violation of Order XX Rules 4 and 5, C.P.C. as well as Order XLI Rule 31, C.P.C.

10. Moreover, the learned Trial Court has passed the impugned judgment/decree without framing material issues in the light of pleadings of the parties to resolve the controversy between the parties. The provision of Order XIV Rule 1, C.P.C. mandates that issues shall be framed when a material propositions of fact of law is affirmed by one party and denied by the other. The duty of framing of issues is mere formality, but a fundamental requisition is required to determine the real controversy between the parties. It is settled principle of law that failure to frame material issues constitutes jurisdictional error and vitiates the trial. Therefore, in order to arrive at correct conclusion, it would be appropriate to send the case back to the Trial Court, with the direction to revisit the already framed issues and frame additional material issues to resolve the controversy between the parties in accordance with their pleadings, hence, the case is remanded back to the learned Trial Court to record from pro and contra evidences, oral as well as documentary evidences, if any, if so desired.

11. Consequently, this Revision Petition is hereby accepted and judgment/decree dated 20-05-2023 passed by the learned District Judge Ghizer in CFA No.33/2022 and judgment/decree dated 03-06-2022 passed by the learned Trial Court in Civil Suit No.124/2015 is set aside and case is remanded back to the learned Trial Court with direction to revisite the previously framed issues and frame proper issues regarding real controversy between the parties or frame additional issues in accordance with the respective contentions of the parties, after giving opportunity to the parties to file list of witnesses and produce additional evidences in pro and contra in support of additional issues, if they so desired, and after then decide the case on merit. Record of the Trial Court along with certified copy of this judgment be remitted back to the Senior Civil Judge Ghizer. File.

MQ/2/GB Revision allowed.