P L D 1998 Quetta 34 (PLP)

The instant Revision Petition under section 115, C.P.C. has been preferred against judgment and decree dated 26-3-1997 passed by the Majlis-e- Shoora, Kalat Division at Mastung whereby the decree passed by Qazi Court, Kalat dated 28-10-1996 was set aside and the suit filed by the petitioner dismissed.

2. Briefly the stated facts of the case are that the petitioner filed suit for declaration, injunction and correction of Revenue entries in respect of piece of land bearing Khewat No.2, Khatooni No.7, Khasra Nos.94 to 100 situate in Mauza Mal, Kalat against the respondents on 27-8-1995 in the Court of Qazi Kalat, on the averments that the suit property is the ancestral property of the petitioner with possession and the respondents enjoy the status of his tenants who used to pay Haq-e-Malikana to him and a year prior to the institution of the suit, the petitioner contacted the- respondents for the share of Haq-e-Malikana of the suit land but they refused to give due share of the produce of land to the petitioner as owner thereof and thereupon; it revealed to the petitioner that the respondents fraudulently got recorded the suit property in Revenue Record in their favour as owners thereto. The suit was contested by the respondents by filing written statements on the ground that they are the ancestral owners with possession of suit property and the learned trial Court framed issues out of the pleadings of the parties. Thereupon both the parties led their respective evidence besides their statements recorded by the learned Qazi Court. Finally the learned trial Court vide its Judgment, decreed the suit in favour of the petitioner on 28-10-1996. The respondents being aggrieved of the decree passed by the trial Court, challenged the same by filing appeal before the learned Majlis-e-Shoora, Kalat Division at Mastung which reversed the decree of the Qazi Court vide impugned Judgment and Decree dated 26-3-1997, challenged in the instant revision. I have heard the learned counsel for the parties at length. The learned counsel for the petitioner contended that the learned Majlis-e-Shoora did not consider the evidence nor recorded its findings or reasons for reversing the decree of the trial Court which is against the mandatory requirements of Order XLI, Rule 31, C.P.C. as well as offended, norms of justice. The learned counsel emphatically submitted that the impugned judgment to which follows decree is at all not a judgment, justifying to be set aside. According to the learned counsel the evidence on record laid valid and legal basis for the decree passed in favour of the petitioner by trial Court. The learned counsel for the petitioners in view of the impugned judgment candidly argued that upon consideration of the entire evidence on record, Majlis-e-Shoora came to the sustainable conclusion to dismiss the petitioner's suit. Moreover; the learned counsel submitted that the suit was hit by limitation and accordingly deserved dismissal because the disputed Revenue entries have not been challenged within the prescribed period of limitation. I have considered the respective contentions of the learned counsel for the parties in the light of the record of the case annexed with the petition and also perused the impugned judgment carefully, which transpired that the Majlis e-Shoora simply by going through the record of the case and perusing the memo. of appeal, concluded to allow the appeal preferred against the decree of Qazi, Kalat dated 28-10-1996. The operating part of the impugned judgment for convenience is reproduced below: The Majlis-e-Shoora, as is evident from the impugned judgment did not consider the evidence on record nor recorded any reason or finding based upon evidence in the case, inasmuch as; it did not apply its mind to the facts of the case. Without dilating upon the other contentions raised before this Court, by no stretch of arguments, the impugned judgment can be termed as 'judgment within the meaning of Order XLI, Rule 31, C.P.C. Appellate Court is under legal obligation to decide each of the point involved in the matter to which it is seized of, must to state its reasons for the decision arrived at and at least substantial compliance with the requirements of rule 31 of Order XLI, C.P.C. is mandatory so that it should be evident from judgment that Appellate Court applied its mind consciously to the matters involved in the case; which enabled Court to pronounce the judgment. The bare perusal of the judgment indicates that the Appellate Court did not take into consideration the evidence on record nor did it record any reason for the decision pronounced by it, thereby rendering the impugned judgment and decree as unsustainable in law; consequently, the impugned judgment and decree dated 26-3-1997 passed by Majlis-e-Shoora, Kalat Division at Mastung is set aside, with the directions to re-write judgment in Civil Appeal No. 103 of 1996 in accordance with law, after affording opportunity of hearing to the parties. The Revision petition accordingly is partially allowed in the above terms; with no order as to costs. A.A./672/Q Case remanded