BAKHT ZAMIN vs SAID MAJID

ORDER

' SHAFIUR RAHMAN, J.--The petitioner who is a defendant in the pending Civil Suit, seeks leave to appeal against the judgment dated 8-2-1989 of the Peshawar High Court, whereby a civil revision petition was allowed, the appellate judgment was set aside and additional issue was framed and the case was remanded.

2. The respondent-plaintiff instituted a suit on 20-7-1980 claiming 1/2 share in the property left by Muhammad Majid deceased. In the plaint the only averment made was that if there was any document depriving the plaintiff of share in the property, that was forged, fraudulent and inoperative on the rights of the plaintiff. The suit was contested on a number of grounds and the trial Court dismissed the suit holding that the property had been gifted by the deceased in favour of the defendants. The first appellate Court reversed the decision holding as hereunder:- "The transfer deed by a very old person while on bed during `marz-ulmaw' in favour of a person in whose custody he so remains is not accepted as a transfer deed in law, because in such cases the alienator remains out of his own control and comes in the control and undue influence of a person who has the chances to compel him to execute a deed in his favour. I am of the confirmed opinion that Mohammad Majid, being a very old person and ailing for a long time as well as dying after about twenty days after the registration of the gift deed while in the house of the defendant, was under the undue influence of the defendant himself and could not do anything himself, except to obey the orders of the defendant and to transfer his property to the defendant under compulsion of circumstances. In these circumstances I hold that gift deed in favour of the defendant from his father is void, and ineffective on the rights of the plaintiff-appellant. I decide issue No, 7 in favour of the defendant while issue No, 6 in favour of the plaintiff and issue No, 5 against the defendant."

3. In revision the High Court held as hereunder:- "It can be seen that though there was evidence led by either side showing how their propositus had passed his last days, yet there was no issue struck on the point. In fact therc was no allegation in the plaint assailing the impugned transfer on the ground of having been made during Marazul- Maut and naturally, therefore, no issue was framed. But in view of the preponderance of evidence placed on record showing that the propositus was ill and had died soon after making transfer of the property in favour of the defendant-petitioner, the learned appellate Court was led to hold, that he died during Mara-zul-Maut and as such was incompetent to effect the transfer. However, there is nothing to discern in the evidence as to what sort of malady the propositus was suffering from and whether he had in mind the imminent danger of death. Therefore, it looks proper that the parties may be put to specific issue which may be determined after allowing them an opportunity to furnish fresh evidence."

' The High Court remanded the case after framing an additional issue to the following effect:- "Whether Mohammad Majid, the predecessor-in-interest of the parties, made the impugned gift during Mara-zul-maut, if so with what effect?"

4. Mr. Shakirullah Jan, Advocate, the learned counsel for the petitioner contended that it is an established proposition of law that issues arise out of the pleadings of the parties and not outside.

In the pleadings not a word was said about the deed having been executed while the deceased was suffering from Mara-zul-Maut. It could not, therefore, be made the ground either by the appellate Court for accepting the claim or by the High Court for remanding the matter after framing the additional issue.

5. The contention of the learned counsel for the petitioner as a proposition of law is fully established. However, applying that law to the facts of the case, a perusal of the plaint shows that the deed of gift was challenged in the plaint as forged, fraudulent and inoperative on the rights of the plaintiff as a heir. The various grounds thereof had not been enumerated. However, extensive evidence came on the record without objection from any of the parties about its relevance and admissibility on the question of Mara-zul-Maul and the gift having been made in that state of health. The evidence was so extensive and of such a quality that the appellate Court believed it without there being an issue or a contest on that specific question.

6. In the circumstances, the High Court was justified in setting aside the judgments and decrees of the Courts below because the matter had not been pointedly raised and contested. To that extent the learned counsel for the petitioner supports the judgment of High Court. However, as there was extensive evidence on the record and it has been brought on record without objection from any of the parties to the litigation, a fair and proper adjudication required that there should have been an issue on the subject so that the parties do not remain unaware of the exact controversy involved. It was, therefore, within the powers of the High Court to set aside the judgments and decrees of the Courts below and direct that the case may be reheard on the issue framed by it in the light of evidence of the parties.

' This not a fit case for grant of leave to appeal and leave is refused.