2019 PLP 644 (YLR)

SYED ARSHAD ALI, J.

Through the present revision petition, petitioners have called in question the judgment and decree dated 02.03.2011 passed by learned Additional District Judge, Ghazi, whereby the appeal filed by the present petitioners against the judgment and decree passed by learned trial Court was dismissed.

2. Brief, but essential facts of the instant case are that the present petitioners filed a suit before Civil Court at Ghazi for declaration to the effect that they are owners and in possession of the suit property described in the plaint on the 3basis of a registered gift deed No.581 attested on 25.05.1992. They also prayed for possession of a shop out of the total suit property which was occupied by the respondents/defendants. On being summoned, defendants contested the suit by filing their written statement. From divergent pleadings of the parties, the learned trial Court framed 08 issues and directed the parties to produce their respective evidence. On conclusion of trial, the suit of the petitioners was dismissed by learned trial Court vide judgment and decree dated 15.11.2010. Petitioners challenged the said judgment and decree through Appeal No.83/13 before learned appellate Court, which was also dismissed through judgment and decree dated 02.03.2011. The petitioners have challenged the said judgment and decree through present revision petition.

3. Argument heard and record perused.

4. Perusal of impugned judgment and decree dated 02.03.2011 passed by learned appellate Court reflects that the learned appellate Court has dismissed the appeal in slipshod manner albeit in haste. The learned appellate Court has rendered no finding on issues as to which the parties were at dispute. The learned appellate Court after referring to certain facts has rendered the judgment in the following words, "in view of the above, the appellants/plaintiffs could neither prove genuineness of the deed bearing No.581 dated 25/02/1992 nor could substantiate their claim through cogent and solid evidence due to which appeal in hand is hereby dismissed with no order as to cost. File be consigned to record room after its completion".

5. In the present case, the petitioners/plaintiffs claim their title on the basis of dower deed dated 24.2.1971 Ex:PW2/2 through which donor had acquired title of the suit property and which was subsequently gifted to the plaintiffs through gift deed dated 25.05.1992 Ex:PW1/1. In support of their claim, the plaintiffs produced Khalid Mehmood, Registry Muharrir as PW-1, who produced the said deed. The plaintiffs also produced two marginal witnesses of the said deed Muhammad Masood as PW-3 and Muhammad Hassan as PW-4. The learned trial Court while dismissing the suit had rendered findings on each and every issue keeping in view the relevant evidence of the parties, whereas the learned appellate Court has rendered no reason in support of its judgment. The impugned judgment and decree of the learned appellate Court might be correct in its result but it is deficient in its contents and has been rendered in violation of mandatory provisions of Order XLI, Rule 31, C.P.C. The learned appellate Court, at least was required to frame points for determination and then should have rendered its reasons. Indeed the appeal is in continuation of suit, therefore, it is the duty of the learned appellate Court to assess the entire evidence, pro and contra, produced by the parties, examine findings recorded by the learned trial Court and to give reason for upholding or reversing the same. The learned appellate Court was under legal obligation to decide the dispute in the manner prescribed by Order XLI, Rule 31, C.P.C. Indeed a statutory right of appeal confers on the parties to be reheard and the learned appellate Court has to consider the controversy entirely afresh both as regard to facts and law and to substitute its own judgment for that of a subordinate Court. The findings of the learned appellate Court should be self explanatory, illuminative and in the nature of a speaking order. It should be evident from the judgment that the Judge was conscious of the matter involved and the reasons rendered by the Judge has the reference from the evidence produced by the parties. In short, in case of final appeal the judgment of the learned appellate Court is the judgment to have reappraised the evidence carefully as normally the superior Courts gives weight to the appreciation of facts rendered by the learned appellate Court. (Aslam Khan and others v. Khushdil Khan and others 2015 MLD 213 Peshawar, Mst. Sarwar Bano through attorney v. Province of Sindh through Member Board of Revenue, Hyderabad and 5 others PLD 2015 Sindh 445, Javed and 19 others v. Abdul Rashid and 4 others 2015 YLR 1362, Muhammad Hanif and others v. Muhamamd Aslam and others 2016 CLC Note 80 Lahore Rawalpindi Bench and Mst. Bachho v. Abdul Qayyum alias Habibullah and 14 others 2015 CLC 805 Peshawar).

6. For the reasons mentioned above, the instant revision petition is accepted, the impugned judgment and decree dated 02.03.2011 is set aside and the case is remanded to learned Additional District Judge, Ghazi for decision afresh on merits in accordance with law and the observations made above, after calling the record and hearing the parties. The matter being old one, the learned appellate Court is directed to dispose it of within a period of two months positively. SA/296/P Case remanded.