1984 PLP 2162 (CLC)

This revision application is filed against the judgment and decree of the 1st Additional District Judge, Nawabshah, dated 13th November, 1976. The admitted facts of the case are as under : Respondents 1 to 6 who claim to be the heirs of late Juma Khan and respondents 7 and 8 who claim to be the heirs of late Zangi Khan -jointly filed Suit No. 27/69 against the applicant for possession and mesne profits on the allegation that the land in dispute measuring 68.13 acres was owned jointly by their predecessor-in-title Juma Khan and Zangi Khan in proportion to 12 Annas and 4 Annas shares in a rupee, respec tively and that the sale in favour of applicant by Juma Khan having been held to be invalid in previous proceedings the applicant was liable to be evicted from the land and pay mesne profits to them. Prior to institution of Suit No. 27/69, respondents 7 and 8 had instituted Suit No. 6/65 against respondents 1 to 6 and the present applicant seeking a declaration that the land in suit was owned by respondents 7 and 8 to the extent of 4-Anna share as legal,heirs of Zangi Khan. This suit was decreed ex parte in favour of respondents 7 and

8. In Suit No. 27/69 instituted by respondents jointly the following issues were framed by the trial Court on the pleadings of the parties: (1) Whether the defendant is not an agriculturist? (2) Whether Juma Khan was owner of whole of the suit land? (3) Whether the decree in Suit No. 66 of 1965 was obtained fraudu lently by plaintiffs Nos. 7 and

8. If so, its effect? (4) Whether the plaintiffs were dispossessed from the suit land as alleged by plaintiffs? (5) Whether the plaintiffs Nos. 7 and 8 were heirs on the suit land? (6) Whether ther permission to sell the suit land was necessary under the Rural Credit and Land Transfer Act and the same was refused by the Additional Commissioner? If yes, what is its effect? (7) Whether the plaintiffs are in adverse possession of the suit land? (8) Whether this Court has no jurisdiction to hear the suit? (9) Whether the suit is not in proper form? (10) What should the decree be? Out of the above issues, issues Nos. 1, 8 and 9 were not pressed before the Court. Issues Nos. 2 and 5 were held in the negative. Issues Nos. 4, 6 and 7 were answered in the affirmative. As a result of findings on issues Nos. 2 and 4 to 7 the trial Court decreed the suit of plaintiff and first a preliminary decree was passed against the applicant and thereafter a final decree followed. The applicant challenged the final decree in Suit No. 27/ 69 before the 1st appellate Court in Ist Civil Appeal No. 56/1972 and after its dismissal filed the present revision application.

2. It appears from the judgment of the first appellate Court that the appeal was dismissed on the sole ground that the appellant failed to substantiate his contention that he was not aware of the proceedings before the trial Court and that he was not notified of the date of hearing after receipt of and (from the 1st appellate besides the contention that the appellant was not notified of the date of hearing in the case after receipt of R & P by the trial Court, there were several other contentions raised on merit in the memo. of appeal which were not adverted to at all by the 1st appellate Court. The learned counsel for the petitioner contends that all the contentions raised in the memo of appeal were pressed before the 1st appellate Court. Mr. Ataur Rehman, the learned counsel for the respondents 1, 2, 4, 7 and 8 raised a preliminary objection as to the maintainability of the revision on the ground that a second appeal was competent in the case. It is, however, not disputed by Mr. Rehman that if this revision is treated as a second appeal it was filed within the period of limitation. The learned counsel for the petitioner made an oral request before me for treating this revision as a second appeal as in the 1st. instance it was filed as a second appeal in this Court but on an objection raised by the office it was converted into a revision. I find from the title of the case that it was originally described as second appeal but later on the word second appeal in the title was scored off and substituted with "revision" I also find that the subject-matter of the suit was over Rs. 2,000 and, therefore, the petitioner should have filed a second appeal instead of a revision. I accordingly, looking to the circumstances that the petitioner had originally instituted second appeal but later on converted into revision, accept the oral prayer of petitioner and treat the revision as a second appeal under section 100, C. P. C.

3. The learned counsel for the appellant amongst other grounds once again contended before me that the petitioner and his counsel were not notified of the date of hearing after the R & P of the case was received back from the appellate Court. Besides this contention the learned counsel urged that the finding on issues 4, 6 and 7 are contrary to the evidence on record and against the law laid down by the superior Courts. It is also contended by the learned counsel that the decree in suit No. 6/77 passed in favour of respondents 7 and 8 was wrongly construed and interpreted by the trial Court. After hearing the learned counsel for the parties I am of the view that the judgment and decree of the 1st appellate Court is liable to be set aside for the following reasons.

4. In so far the first contention of the learned counsel for the appellant is concerned I find from the record of the suit that until 26th January, 1971 the parties regularly appeared before the trial Court. The suit was adjourned on 26th January, 1971 to 26th February, 1971 evidence of the parties. It appears that in the meantime an appeal was filed by the applicant against the appointment of Receiver by the trial Court in the suit, and R & P of the case was summoned by the 1st appellate Court in that regard. However, the diary sheet written by the Reader of the Court shows that the counsel for the parties in spite of R & P of case having been called by the 1st appellate Court continued to appear before the trial Court between 26th February, 1971 to 17th December, 1971. The order sheet from 17th December, 1971 onward also show that on several dates the parties counsel were present before the trial Court and the case was adjourned at their joint request. There is nothing on the record to show that the diary sheet or the order sheet written in the case was incorrectly recorded. The 1st appellate Court, therefore, rightly disbelieved the assertion of appellant in this regard. However, this reason alone was not sufficient for dismissal of appeal as there were several other contentions raised before the 1st appellate Court which required consideration. The learned counsel for the appellant rightly contended that the 1st appellate Court did not consider the judgment in Suit No. 6/65 which only decided the title of respondents 7 and 8 to the extent of 4-Anna share in the land. The learned counsel also rightly urged that the 1st appellate Court completely ignored that there could be no adverse possession of respondents against the appellant, in circumstances of the case. I have seen true translation of the plaint in Suit No. 6/65 placed by the learned counsel for the respondents and after reading the true translation of the plaint it is quite evident that the relief claimed in that suit was only to the extent of 4-Anna share in the suit land. No doubt the plaintiffs in that suit had challenged the sale on the ground that it was also hit by section 3 of the Sind Rural Credit and Land Transfer Act of 1947E (Sind Act XLIX of 1947) but neither the evidence has been discussed in this behalf nor legal position was taken into consideration. The Ist appellate Court also did not advert to any other legal cc factual aspect of the case while dismissing the appeal.

5. As these substantial questions of Law raised before the 1st appellate Court were not dealt with or decided. I accept this appeal, set aside the order of the 1st appellate Court and remand the case back for rehearing of the appeal in light of the above direction. The 1st appellate Court will give his decision on all the issues raised before him by the parties after hearing them in accordance with law. There will, however, be no order as to costs. M. B. A. Case remanded. ***