2021 PLP 585 (MLD)

ALI BAIG, J.

Through the instant civil first appeal the appellants/plaintiffs have challenged the validity and propriety of impugned judgment/decree dated 12/12/2015 passed by learned Senior Civil Judge Skardu whereby the learned trial court has partially decreed the Suit No.17/06 titled Khawaja Muhammad Qasim and others v. Arif Aslam and others to the extent of recovery of Rs.900000/- and has dismissed the remaining part of Suit No.17/06, whereas the learned trial court has decreed the suit bearing No.140/07 filed by the present respondent No.1 titled Arif Aslam Khan v. Khawaja Muhammad Qasim and others as prayed for. Brief facts of the case have been narrated by the learned trial court in Paras Nos.1 and 2 of the impugned judgment which are reproduced as under: - "The plaintiff namely Khawaja Qasim son of Khawaja Mehdi Jan resident of Skardu by Suit No.17/2006 has sought declaration and consequential relief against defendants Arif Aslam Khan owner of Shangrilla Resort, Deputy Commissioner Skardu and provincial Government. The said defendant has passed away during pendency of the suit and his legal heirs have stepped into his shoes and have been impleaded duly. The defendant No.1 namely Arif Aslam Khan instituted a cross-suit bearing No.140/07(32/10) seeking declaration and cancellation of registry No. 06/98. The subsequent suit has been consolidated with the first instituted suit bearing No. 17/06 and both the suits shall be disposed of through this single/composite judgment. The plaintiffs case, as stated in the plaint, is that vide registered sale deed dated 23/02/1998 registration No. 06/98, the defendant No. 1 has transferred the land falling under Survey No.2184/1450 measuring 14 Kanals along with structure and buildings thereon, and out of survey number 16/6 measuring 6 kanals 3 marlas situated at Shangrilla Resort Kachura Skardu. The plaintiff states that he defendant No. 1 has received from him Rs.2040000/- as consideration of suit property. The plaintiff claims that soon after the sale of suit property, the same was let out by him to the defendant No. 1 on a rental of Rs.5000/- per month for a period of six months. After expiry of said six months, the premises were further let out for next six months on rental Rs.8000/- per month. The plaintiff says that he has received from the defendant No. 1 Rs.540000/- on account of rent of said premises. He claims that mutation of sold property has also been attested which was first attested showing consideration amount of Rs.1460000/- which was subsequently corrected showing the total consideration amount as Rs.2040000/-. The plaintiff alleges that the defendant No. 1 has got cancelled the Mutation No. 1682 vide order of Collector Skardu 29/3/2000. The plaintiff stated in the plaint that said cancellation order as well as report of Naib Tehsildar thereof is unlawful being contrary to his rights as well as being against state and being based on collusion." The present respondent No.1 being defendant in the suit has contested the suit by filing his written statement in the learned trial court wherein he has raised certain legal objections and also repudiated the averments of the plaint by pleading/asserting that he has never sold out the suit property to appellants/plaintiffs and so-called sale deed has been registered in his absence through a fake document. Out of divergent pleading of the parties, the learned trial court has framed as many as 26 issues including relief. After framing of issues the learned trial court has directed to the parties to produce their evidence as they wished to adduce. Accordingly both the parties produced their oral and documentary evidence in support of their respective claim. On conclusion of trial the learned trial court vide the impugned judgment/decree dated 12/12/2015 has partially decreed the Suit No.17/06 to the extent of Rs.900000/- in favour of present appellants and remaining part of the suit No.17/06 was dismissed, while Suit No.140/2007 (32/2010) was decreed throughout as prayed for in favour of present respondent No.1. Feeling aggrieved and dissatisfied with the aforementioned judgment/decree of the learned trial court the present appellants/plaintiffs have filed the instant civil first appeal in this Court. The learned counsel appearing on behalf of the appellants has contended that the impugned judgment/decree passed by the learned trial court is contrary to law and fact on the record of the case as such the impugned judgment/decree is not maintainable and liable to be set aside. The learned counsel for the appellants has further argued that the learned trial court has failed to record issue wise findings as required under the mandatory provisions of Order XX, Rule 5, C.P.C. and has decided many issues together through a single finding, hence the learned trial court has committed material irregularity and illegality while passing the impugned judgment/decree which is not sustainable in the eye of law. The learned counsel for the appellants has further contended that the impugned judgment/decree passed by the learned trial court is result of miss-reading and non-reading of evidence produced by the parties and miss-appreciation of relevant law. The learned counsel for the appellants further contended that the learned trial court has recorded contradictory findings on Issues Nos.13 to 16, 18, 19, 20 and 22 and has arrived at wrong conclusion therefore the impugned judgment/decree passed by the learned trial court is not maintainable and liable to be set aside. On the other hand the learned counsel for the respondent No.1 controverted the arguments advanced by the learned counsel for the appellants and supported the impugned judgment/decree passed by the learned trail court by contending that the respondent No.1 has not sold any landed property along with structure/building to the appellants rather the appellants have prepared a fake sale deed on behalf of respondent No.1 and have got registered the fake sale deed in absence of respondent No.1 and at the time of registration of sale deed the respondent No.1 was present at Azad Kashmir in connection with a civil litigation. The learned counsel for the respondent No.1 has further contended that actually the respondent No.1 had borrowed an amount of Rs.1460000/- from late Khawaja Qasim father of present appellants. The respondent No.1 has already returned borrowed amount amounting to Rs.560000/- out of total borrowed amount Rs.1460000/- and outstanding borrowed amount amounting to Rs,900000/- is to be paid to appellants but the appellants have avoided to receive the outstanding amount from the respondent No.1 and have filed the suit against the respondent No.1 with mala fide intention, therefore, the learned trial court has rightly dismissed the suit of appellants and has decreed the suit of respondent No.1 in his favour vide the impugned judgment/decree under appeal. We have carefully considered the submissions made by the learned counsel for the parties and with their able assistance have gone through the record of the case. Perusal of the impugned judgment passed by the learned trial court it transpires that the learned trial court while recording findings on Issues Nos.13 to 16, 18, 19 and 20 has stated that it is an admitted fact that the suit property is Khalisa Sarkar and ownership of suit property lies with government. The respondent No.1 has been shown as tenant and the plaintiffs has no locus standi to file suit against the respondents Nos.2 and 3, while recording the findings on the Issue No.22 the learned trial court has stated that respondent/defendant No.1 is admittedly the owner of the suit property and he shall continue to be owner of it until the sale is proved. Thus the learned trial court has recorded contradictory findings regarding ownership of suit property and has committed material irregularity and illegality while passing the impugned judgment/decree. Moreover from the perusal of judgment/decree it reveals that learned trial court has decided/discussed the Issues Nos.13 to 16, 18, 19 and 20 together whereas the aforesaid issues were not interlinked. Likewise the learned trial court has also discussed Issues Nos.2, 3, 6 and 8 together and recorded common findings whereas these issues were also not interlinked. Under the mandatory provisions of Order XX, Rule 5, C.P.C. the judgment should contain finding on all issues separately but the learned trial court did not bother to discussed the issues separately and has discussed many issues together and recorded common findings on many issues, which is illegal and in contravention of mandatory provision of Order XX, Rule 5, C.P.C. It is unfortunate that some members of subordinate judiciary shows reluctance in following the prescribed procedures and come out with their own procedure for the sake of convenience in deciding the fate of the cases involving the valuable property rights of the litigants which is not permissible under law. The civil courts are therefore bound to strictly follow the provisions of civil procedure code in letter and spirit and save the wastage of time which take place on the account of their aberration. In view of the above discussion, this court has come to the conclusion that the trial court has committed material irregularity and illegality while passing the impugned judgment/decree dated 12/12/2015, therefore, we are constrained to set aside the impugned judgment/decree passed by the learned trial court by allowing this civil first appeal. Consequently, the suit is remanded back to the learned trial court with the direction to re-write the judgment after recording issue wise findings in accordance with law and proper appraisal of evidence on record. The parties may also produce additional evidence if so desired. The learned trial court is directed to dispose of the instant suit within shortest possible time. File. MH/139/GB Case remanded.