2017 PLP 435 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned Civil Revision under section 115, C.P.C., applicant Leut. Colonel (R) Ashfaque Ahmed has impugned judgment and decree dated 19.02.2014, passed by the Court of learned Additional District Judge, Ubauro, whereby Civil Appeal No.73/2010, Re- "Altaf Hussain and another v. Leut. Col. (R) lshfaque Ahmed and 5 others" was allowed and judgment and decree dated 30.09.2010, passed by the Court of learned Senior Civil Judge in F.C. Suit No.24/2010 (Old No.63 of 2004) were set-aside.

2. Relevant facts spelt out from instant revision are that father of applicant, respondents Nos.1, 3 and grand-father of respondent No.4, was allotted agricultural land ad-measuring 95 acres 25 ghuntas under Retired Government Servant Scheme in the year 1969-70. Subsequently, Ch. Sultan Mohammad transferred said land through mutation No.130, dated 07.12.1982, in the name applicant and his three brothers and father of respondent No.4 namely Ch. Imtiaz Ahmed and respondent No.5 namely Saifullah. Afterwards, applicant and his 3 brothers jointly purchased further land ad-measuring 54 acres from Syed Hamayoon Raza and ljaz Begum which was transferred through mutation No.131, dated 07.12.1982, and said land was contiguous to the land allotted to the father of applicant, which was purchased earlier and possession was also taken over simultaneously. Subsequently, further land ad measuring 42 acres was jointly purchased by respondents Nos.6 and 7 from Zakria Shah in their own names and said land was also transferred through the same mutation No.131, dated 07.12.1982. Later on, respondent No.7 also transferred his share of land in favour of respondent No.1 through mutation No.133, hence applicant became exclusive owner of land ad-measuring 37 acres and 12 Ghuntas in both Khatas. Father of respondent No.4 namely Ch. Imtiaz Ahmed advocate, transferred his share of land through registered gift-deed dated 17.01.2000 in the name of his respondent No.4. The registered sale-deed was maintained in the Revenue record through mutation' No.208, dated 18.01.2000. Applicant and respondent No.3 were serving in Pakistan Army, while their 3rd brother Ch. Imtiaz Ahmed and father of respondent No.4, was a practicing advocate, and 4th brother respondent No.1 being an uneducated was living at Rahimyar Khan. Respondent No.1 was entrusted with supervision and management of the land which is subject matter of the suit by the remaining 3 brothers. In the year 1993, respondent No.1 requested the applicant to execute power of attorney for proper management of land and dealing with Government Departments in relation to the land in question. Applicant having confidence upon the respondent No.1 being the elder brother, executed power of attorney in his favour on 15.05.1993, but did not go through its details at the time of its execution. However, applicant gave clear instructions to respondent No.1 that he would not alienate the said land in any manner without consent of applicant. In the year 2002, applicant became distrustful about the conduct of respondent No.1, and he cancelled power of attorney executed in favour of respondent No.1 through registered revocation deed dated 14.11.2002. In the meanwhile, respondent No.4 applied for the partition of land before Revenue Officer, Ubauro, and notices were issued to all the co-sharers including the applicant so he believed that said land subsists in his name in relevant revenue record. Said application for partition of land was allowed in the month of March, 2004, by the concerned revenue authorities of Ubauro but separate possession could not be delivered to any of the co-sharers as respondents Nos.5 and 6 impugned partition order through an appeal before D.O. (Revenue), Ghotki, which was accepted and order for partition was set aside vide order dated 20.07.2004, and case was remanded for a fresh decision. Applicant recently came to know that the share of applicant in the land has been transferred by respondent No.1 in favour of his son respondent No.2 by means of oral gift on the basis of earlier power of attorney executed by applicant in favour of respondent No.1, without his consent knowledge and contrary to his instructions. Though said transfer of land was affected in the Revenue Record vide mutation No.119, dated 26.06.1994, but in order to conceal the said transfer, respondent No.1 continued to pay applicant his share of mesne, profits. Applicant prayed as under:-- "A declaration to the effect that the plaintiff is the owner to the extent of about 37 acres and 12 Ghunta in the land described in the plaint and mutation of oral gift No.119 dated 26.06.1994 by the defendant No.1 in favour of defendant No.2 is illegal and ineffective against the rights of plaintiff in land. As a consequential relief, it is further prayed that the plaintiff may be ordered to be given joint possession of the land along with other co-sharers, or any other relief that may be deemed fit may be granted. Cost of the case may kindly also be awarded".

3. After service of summons, only respondents Nos.1 and 2 contested the suit and filed their joint written statement on 10.01.2005, and raised preliminary legal objections that suit is not maintainable under the law and is hopelessly time barred; that suit is outcome of mischief mind of the father of respondent No.4 namely Ch. Imtiaz Ahmed who filed frivolous suit with ulterior motives after failure for re-partition of the land before the Revenue Authorities and even receiving full sale consideration of suit land and execution of receipt of payment of Rs.5,00,000/- in presence of witnesses. Allegations made in plaint have been denied on the pretext that applicant through irrevocable registered power of attorney had authorized respondent No.1 to alienate, sale, gift, mortgage and transfer the land in question which could not be revoked by the applicant and even no written notice was issued to respondent No.1 by applicant prior to the said revocation. In fact, respondent No.1 transferred the land in names of the applicant, respondent No.3 father of the respondent No.4, and respondents Nos.6 and 7 as shown in the mutation vide entry No.131, dated 07.12.1982. It is further averred that respondents spent lacs of rupees on the leveling of the land to bring under cultivation and as per private partition they constructed their respective houses, otaq and houses for their harries with their own expenses. Applicant was well in notice and knowledge of the mutation No.119 dated 26.06.1994, from the very beginning and after receiving sale consideration, he has no concern with the suit land, hence plea of recent knowledge of said mutation of land and paying of mesne profits is false. Applicant has no legal right to repudiate the earlier transaction and question of exceeding the authority does not arise, and even respondent No.2 accepted the gift and taken over the possession of suit land, hence transfer of land is valid and lawful.

4. From pleadings of the parties, following issues were framed by learned trial Court:-

1. Whether the suit of the plaintiff is not maintainable?

2. Whether suit of plaintiff is barred by law?

3. Whether Ch. Sultan Muhammad transferred land through mutation No.130, dated 07.12.1982 in the name of plaintiff, defendant No.3 and father of defendant No.4 namely Ch. Imtiaz Ahmed and defendant No.5 Saifullah?

4. Whether plaintiff and his (03) brother jointly purchased land measuring 54-00 acres from Syed Hamayoon Raza and Aijaz Begum through mutation No.131 dated 07.12.1982?

5. Whether registered gift deed dated 17.01.2000 in the name of defendant No.4 and mutation No.208 dated 18.01.2001 are legal genuine and according to law?

6. Whether power of attorney dated 15.05.1993 in favour of defendant No.1 executed by plaintiff is genuine and according to law?

7. Whether plaintiff is owner to the extent of about 37-12 acres from the suit land and oral gift No.119 dated 26.06.1994 by defendant No.1 in favour of defendant No.2 is illegal ineffective against the right of plaintiff in the suit land?

8. Whether plaintiff is entitled for separate possession?

9. Whether plaintiff is entitled for relief claimed?

10. What should the decree be?

5. Applicant examined himself at Ex. 62 and he produced attested, copy of Dakhil Kharij Entry No.130, Dakhil Kharij Entry No.131, certified true copy of Form VII-B bearing Entry No.119 dated 26.06.1994, true copy of form VII-B bearing entry No.208, true copy of memo of appeal filed before District officer Ghotki, original copy of abtalnama at Exs:62/A to 62/F respectively. Applicant examined witness Salman Ahmed Kadri at Ex:64.

6. In rebuttal, respondent Altaf Ahmed examined himself vide Ex:78 and produced original receipt of payment and copy of General Power of Attorney vide Exs:78/A and 78/B respectively. Respondents examined witnesses Mumtaz Ahmed and Tariq Ahmed vide Exs:79 and 80 respectively.

7. Learned trial Court after hearing arguments of the parties decreed the suit vide judgment and decree dated 30.09.2010. Respondents Nos.1 and 2 agitated said judgment and decree through Civil Appeal No.73 of 2010, which was allowed by learned Appellate Court vide impugned short judgment and decreed and remanded the matter to learned trial Court to decide the suit afresh by discussing each issue separately after hearing arguments of the parties, hence instant Civil Revision.

8. Learned Counsel for applicant contended that impugned judgment and decree are unjust, improper, arbitrary and passed by Appellate Court in absence of advocate for applicant after hearing the arguments advanced by learned Counsel for respondents and disposed of the appeal without touching its merits and de-merits which itself is contravention of mandatory provisions of C.P.C. Learned counsel further emphasized that learned Appellate Court has not properly appreciated the reasons assigned by the learned trial Court while discussing issues Nos.1 and 2 which are pertaining to the maintainability of the suit which can be decided together hence impugned judgment and decree are liable to be set-aside and learned Appellate Court may be directed to decide the appeal on merits.

9. While controverting the above submissions, learned Counsel for respondents Nos.1 and 2 contended that learned trial Court has erred while discussing issues Nos.1 and 2 jointly and has not decided the same properly, as mix question of law and facts have been involved in above both issues and same should be decided separately, nevertheless power of attorney was registered on 15.05.1993, whereby applicant had empowered and authorized respondent No.1 being his lawful attorney to sale, gift, mortgage, transfer and lease out the land in question at his own accord and no restriction for seeking instructions was demonstrated in said power of attorney, hence respondent No.1 in view of the terms and conditions power of attorney, mutated land in question in favour of respondent No.2 by way of gift on 26.06.1994, consequently, as and when respondent No.1 exercised his lawful authority and gifted the suit land in favour of respondent No.2, said power of attorney became a dead document, thus cancellation of a dead power of attorney by applicant being its executant is nullity in the law and learned trial Court has wrongly observed that no prior permission or consent was obtained from the applicant by respondent No.1 while he gifted the suit land in favour of respondent No.2, as no such condition is mentioned in said power of attorney. Learned counsel vehemently emphasized that applicant with ulterior motives has filed instant suit in the year 2004 which is hopelessly time barred and no plausible explanation has been furnished for condonation of the delay for filing of the suit and merely plea taken by the applicant that he just came in to the knowledge about the impugned mutation of gift would not condone the inordinate delay which on the contrary has established that applicant never visited the suit land nor was ever in physical possession of the land in question, and even he executed power of attorney in the Province of Punjab, while limitation for seeking declaration under section 42 of Special Relief Act, is provided for three years and instant suit has been filed after laps of about 10 years and learned trial Court in absence of any solid ground for condonation as well as documentary proof of payment of mesne profit has condoned the delay without considering of said facts wisely. Learned counsel further urged that issue No.1 is pertaining to the maintainability of the suit, while issue No.2 is relating to the limitation involved in filing of the suit under which suit is barred by law, specifically when applicant has failed to produce any evidence regarding receiving of mesne profits from the date of execution of power of attorney till the date of filing of the suit. Learned counsel lastly contended that respondents, in their written statement, have raised four preliminary objections, hence learned trial Court was bound to decide the preliminary objections separately in view of the evidence adduced by the parties supported with relevant documents but same was not done, hence learned Appellate Court has rightly directed learned trial Court to pass an appropriate order by discussing the issues Nos.1 and 2 separately.

10. Heard learned Counsel for the parties and perused the material available on record carefully which emanates that learned trial Court decided legal core issues Nos.1 and 2 together which are pertaining to the maintainability of the suit and both issues were decided in favour of applicant, while rest of the issues were decided separately. Conversely, learned Appellate Court did not decide the appeal on merits and by a short judgment remanded the case to trial Court with direction to decide legal issues Nos.1 and 2 separately. The operative part of impugned judgment passed by learned Appellate Court is reproduced as follows:- "Without touching the merits or demerits of the appeal in hand, it is observed that the learned trial Court has jointly decided the issued Nos.1 and 2, which is contrary to the law and learned counsel for the appellants also stressed upon this point. He further pointed out that the findings of both the issues not only illegal and contravention of relevant law, but also are against the facts of the case. It is well settled law that issues should have been decided separately. From the perusal impugned judgment reveals that the same is also suffering from misreading and non-reading of evidence. It is pertinent to mention here that according to the pleadings, there was real controversy with regard to issued Nos.3, 4, 5, 6 but the learned trial Court has decided issues by erroneously holding that there was no dispute among the parties. Hence the impugned judgment of trial Court is bad in the eyes of law, which requires interference of this Court and it is better course to remand back the matter to lower court for decision afresh. In view of the above circumstances, I allow the appeal in hand and set aside the impugned judgment and decree dated 30.09.2010 with directions to decide the matter by discussing each issue separately with proper appreciation of evidence and in accordance with the provisions of law, after hearing the learned counsel for both the parties."

11. Perusal of record reflects that subject Civil Appeal was transferred from the Court of learned II-Additional District Judge, Ghotki to the Court of learned Additional District Judge, Ubauro and on receipt of R & Ps of the appeal, learned Additional District Judge, Ubauro on 11.02.2014, in absence of the parties and their advocates, put off the appeal for regular hearing on 19.02.2014 without issuing Court Motion notices to the parties or their counsel which was also utter violation of well settled norms of justice by the honourable Apex Court, has transferee Appellate Court was bound to issue Court Motion notices to the contesting parties and their counsel by intimating next date of hearing. It is incumbent upon the Court to afford an appropriate opportunity to the parties to proceed their case on merits but learned Appellate Court has failed to comply with the essential requirements while fixing date of hearing of main appeal at its own accord.

12. Bare perusal of the impugned judgment dated 19.02.2014, demonstrates that learned Appellate Court in absence of learned counsel for applicant had delivered the impugned judgment merely after hearing the arguments of learned counsel for respondents which is amounting to condemn the applicant unheard and depriving him from the right of fair trial by affording an opportunity of advancing his arguments which otherwise is mandatory and essential for dispensation of justice on merits. Conversely, learned appellate Court has decided main appeal by passing a short judgment without touching the "merits and de-merits" of the appeal and discussing each issue separately and adjudging the material available on the record as well as evaluating the evidence adduced by the parties prudently.

13. Order XX, Rule 4(2), C.P.C. prescribed that judgment of Courts other than the Court of a Small Causes, shall concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. Similarly, Order XLI, Rule 31, C.P.C. also stretches a mechanism for disposal of civil appeal that judgment of the Appellate Court shall be in writing and shall state: (i) the points for determination to resolve the actual controversy going on between the parties, (ii) the decision on each and every issue settled from the pleadings of the parties, unless the finding upon any one or more of the issues is sufficient for the decision of the appeal (iii) the reasons in detail by discussing the evidence adduced by the parties and documents produced by them to substantiate their claims, for the decision, (iv) and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Judgment pronounced should discuss and cover all substantial points involved in the case and also should reflect that Court has scanned and examined the material available on record minutely as well as evidence adduced by the parties supported with relevant documents pragmatically. Compliance of Order XLI, Rule 31, C.P.C. is mandatory in its nature and Appellate Court could not evade these provisions by taking divergent view on erroneous surmises and conjectural presumptions. Consequently, in the matter in hand, learned Appellate Court has failed to comply with the mandatory provisions of Order XLI, Rule 31, C.P.C., while remanding the matter merely holding that issue No.1 and issue No.2 pertaining to the maintainability of the suit, and suit being barred by limitation, have been decided together instead of discussing them separately. It is significant to mention that legal objections or legal issues pertaining to the maintainability of the suit by either way, can be discussed together and such joint discussion would not defeat the mandatory requirement of provisions of Order XX, Rule 5, C.P.C. and Order XLI, Rule 31, C.P.C. 13(sic). Adverting to the merits of instant revision, Appellate Court has failed to give reasons upon each and every issue separately and failed to decide the controversy in the purview of the evidence adduced by both the parties supported with their respective documents and even no sound, sufficient and cogent reasons have been furnished by learned Appellate Court while remanding the matter to the trial Court, when sufficient evidence is already available on record to enable the Appellate Court to pronounce judgment and finally determine the appeal on merits. Consequently, learned Appellate Court was bound to decide all the issues separately, but the Court has failed to comply with the mandatory provisions of C.P.C. and passed the impugned judgment and decree dated 19.02.2014, without touching the "merits and de-merits" of the civil appeal and remanded the matter in short slip manner to trial Court which is utter violation of the norms of settled by the superior Court. There was no justification for the Appellate Court to remand back the civil appeal to learned trial Court to decide a question/issue which is purely a question of law. Conversely, Appellate Court should decide the question of law involved in an appeal by hearing the arguments of the parties and examining the relevant provisions of law, rather than remanding the matter to the trial Court to decide the question of law afresh. 13(sic). For the facts and circumstances discussion supra, instant civil revision stands allowed and impugned judgment and decree dated 19.02.2014 are set-aside and case is remanded back to learned Appellate Court to decide Civil Appeal No.73 of 2010 afresh strictly on merits by discussing all the issues after affording ample opportunity to both the parties to argue their cases preferably with in two months. ZC/A-157/Sindh Case remanded.