P L D 1985 Lahore 498 (PLP)

(vii) Whether the defendants have raised constructions over the dis­puted property, if so when and with what effect ? (viii) Whether the defendants are entitled to recover special costs from the plaintiff, if so to what extent ? (ix) Whether the plaintiffs are entitled to the possession of the disput­ed property ? (x) Whether the defendants had forcibly taken possession of the disputed property if so when and with what effect ? (xi) Whether the plaintiff is entitled to the injunction prayed for by them.? (xii) Relief. The learned Civil Judge, Sargodha, by his judgment and decree, dated 21-1-1979, decided all the issues, except issues No. 10 and 11, in favour of the appellant and on the basis of his findings on issue No. 5 decreed the suit with costs to the extent of the prayer for possession of the plot in dispute. Feeling aggrieved by the aforementioned judgment and decree of the trial Court the respondents preferred an appeal to the learned District Judge, Sargodha, who by his judgment and decree, dated 24-4-1979, accepted the appeal and dismissed the suit of the appellant-plaintiff, leaving the parties to bear their own costs throughout. Dissatisfied with the judgment and decree of the lower appellate Court the appellant-plaintiff has come up to this Court in this Regular Second Appeal.

3. The learned counsel for the appellant contended that the judgment of the lower appellate Court is liable to be set aside since it does not fulfill the requirements of Order XLI, rule 31, C. P. C. having .dealt with all the issues conjointly, whereas it was incumbent on the lower appellate Court to give findings issue wise. He submitted that failure of the lower appellate Court to record findings on each issue separately warrants remand of the case to the lower appellate Court. The next contention of the .learned counsel for the appellant was that the lower appellate. Court misread the documents Exhs. P. 1, D. 1 and D.

6. In the same context it was urged that the statements of P. W. 1 Abdul Hakeem and of P. W. 2 Umar Din appellant-plaintiff himself have not been adverted to.

4. The learned counsel for the respondents, on the other hand, raised the following contentions :- (i) that the main issue involved was issue No. 10 and that the decision on this issue would have determined the fate of the appeal. He urged that though there was no need to discuss the other issues, the learned lower appellate Court has discussed all the important points and substantial compliance of Order XLI, rule 31, C. P. C. has been made. It was also submitted by the learned counsel for the respondents that neither Order XLI, rule 31, C. P. C. requires issue-wise discussion of every issue by the lower appellate Court nor has it been so held in any authority so far ; (ii) that in fact only Exhs. P. 1, D. 1 and D. 6 were relevant documents which have been duly read by the lower appellate Court and correct inference has been drawn therefrom ; (iii) that the evidence on record has also been considered by the lower appellate Court and in particular that of the appellant-plaintiff has been referred to which was found to be contradictory. The learned counsel also drew my attention to the testimony of Abdul Hakeem P. W. 1, who according to the learned counsel for the respon­dents, also supported the case of respondents that the Ahata in dispute was an evacuee property.

5. The basic question which falls for determination in this appeal is whether the impugned judgment of the lower appellate Court suffers from any legal infirmity on account of non-compliance of the provisions of Order XLI, rule 31, C. P. C.

6. Order XLI, rule 31, C. P. C. lays down that a judgment shall inter alia state. (a) the points for determination ; (b) the decision thereon ; (c) the reasons for the decision ; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. I may observe that in a judgment delivered after hearing an appeal) under Order XLI, rule 31, C. P. C. by a Court subordinate to the High Court compliance of the provisions of Order XLI, rule 31, C. P. C. is absolutely necessary. The question however whether in a particular case there has been a substantial compliance of the provisions of rule 31 of Order XLI, of the Code of Civil Procedure is a different one and depen­dent on the nature of the judgment delivered in each case. It cannot be held as a rule that every non-compliance of the strict provisions of this . rule would vitiate the judgment and make it wholly void. Irregularity if any committed may be ignored, if it is found that a substantial com­pliance of the provisions of the rule has been made and the Second Appellate Court is in a position to ascertain the findings of the lower appellate Court. The legitimate construction of this rule would there­fore be that the judgment should deal with all the material points involv­ed in the case and it should show that the Judge has applied independent mind to the material on record. There is no dearth of authority on the principle that compliance oft rule 31 of Order XLI, of the Code of Civil Procedure would be adequately made if there has been substantial consideration of all the relevant points required to be determined in the suit or appeal and that the First Appellate Court need not refer to every item of evidence or document taken into consideration by the trial Court. It is also a settled principle that if the First Appellate Court omits to refer to each witness and description of each document the judgment would not become bad in law so as to call for interference in a second appeal if the lower appellate Court has given its own findings on the evidence on record.

7. Applying the above principles there appears no non-compliance of the provisions of Order XLI, rule 31, C. P. C. in the instant case. In the impugned judgment the points for determination have been clearly spelt out, decision on these points is manifest, and the reasons therefor are also not lacking. The lower Appellate Court in the context of the controversy arisen before it appears to have come to the conclusion that the points requiring determination were whether the Civil Court had jurisdiction to try the suit, whether the suit property was owned by the Provincial Government, whether the respondents-defendants had become its owners under Settlement Scheme VII, and whether the claim of the plaintiff in the suit about taking of forcible possession of a portion of the Ahata in dispute by the respondents-defendants was established. The findings on all the above points have been clearly given in paras. 8 to 11 of the judgment which have been recorded after due appreciation of the evidence on record and by drawing reasonably acceptable inferences. I have, therefore, no hesitation in holding that the requirements of Order XLI, rule 38, C. P. C. stand squarely complied with by the lower appellate Court and that the impugned judgment in no manner suffers from any infirmity. Before parting with this aspect of the matter I may also observe that the grievance made on behalf of the appellant that issue wise discussion had not been made by the lower Appellate Court is also not well-founded. Neither on a plain reading of Rule 31 of Order XLI of the Code of Civil Procedure such a requirement is deducible nor any authority has been cited in support of this proposition.

8. As regards the second submission of the learned counsel for the appellants that the documents Exhs. P. 1, D. 1 and D. 6 have been misread or for that matter there has been omission to consider the testimony of P. W. 1 and that of the appellants-plaintiff himself, I suffice by observing that it also has no force. These documents have been properly read and the inferences drawn therefrom are not only based on a proper reading of the record but also by keeping in view the relevant laws on the subject viz. the Rehabilitation and Settlement Laws. Now, Exh. P. 1 is admittedly an Allotment Order made at the time of the establishment of Pakistan .when there was mass immigration taking place. The issuance of that order as held in the impugned judgment was obviously on an ad hoc basis and it ceased to be effectively in field when relevant legislation viz. the Rehabilitation Laws were enforced and allotments were made to all concerned thereunder. The evacuee nature of the property in dispute also stands established by the statements of D. W. 3 and D. W. 4 who have categorically stated that the property was evacuee and no suggestion ever was made to them by the appellant-plaintiff that it was not so. On this point the testimony of P. W. 1 Abdul Hakim is also very important wherein he has admitted that in the report of the Tehsildar which is available on record brought by him, the Ahata in dispute is an evacuee property owned by an evacuee named Sant Ram son of Karam Singh. There would thus be no justification to criticise the judgment of the lower appellate Court whereby it has been held that the property in dispute was an evacuee property which had been lawfully dealt with and allotted to the respondents-defendants by the Rehabilitation and Settlement Department and that such orders of the said authorities were not open to question in a civil suit.

9. In view of the foregoing discussion I find no merit in this appeal which is accordingly dismissed. There will, however, be no order as to costs. M. B. A. Appeal dismissed.