2012 PLP 912 (CLC)

MUHAMMAD ALI MAZHAR, J.

By this Revision Application, the applicant has challenged the judgment and decree dated 28-8-2003, passed in F.C. Suit No.47 of 1995 and judgment dated 27-8-2004 and decree passed by the IVth Additional District and Sessions Judge, Mirpur Mathelo in Civil Appeal No.69 of 2003,

2. Succinctly the facts are that the applicant had filed a suit for declaration and permanent injunction that the land S.No.678(4-05) of Deh Jarwar was State land falling within the territorial limits of Taluka Mirpur Mathelo, District Ghotki, which was placed in schedule for disposal to Haris/Small Khatedars, which was granted to one Matoo son of Attal by the Colonization Officers, Guddu Barrage, Sukkur on permanent tenure for Kharif 1975-1976. Being aggrieved by this transfer, the applicant moved an appeal to respondent No.2. During pendency of appeal, the original grantee realized the right of plaintiff/applicant and filed a compromise statement, whereby the land was surrendered in favour of applicant before the defendant/respondent No.2. The compromise was allowed and Colonization Officer, Guddu Barrage was directed to make necessary changes in the record vide order dated 21-1-1979. Since the date of order, the applicant was peacefully enjoying the possession over the said land. After at least 18 years, the defendant/respondent No.1 initiated suo motu revisional powers under the Land Revenue Act and issued notice. On 7-12-1994, when the plaintiff/applicant was confined to bed and even he could not inform his counsel, the respondent No.1, taking an undue advantage of the plaintiff's absence, without providing any opportunity passed the order and revoked the grant of land and directed the defendant/respondent No.3 to take further action in the matter.

3. The defendants Nos.6 and 7 filed their written statement while defendant No.5 adopted the same written statement. The trial court framed seven issues and recorded the evidence. The plaintiff/applicant adduced evidence through his attorney Piyaro and except defendant/ respondent No.5, no further party had adduced any evidence. After recoding the evidence, the suit was dismissed and appeal filed by the applicant was also dismissed.

4. The learned counsel for the applicant argued that the trial court framed the issue regarding the validity and proprietary of the impugned order passed' by the Member, Board of Revenue but the finding on this issue is contrary to the law and the evidence available on the record. He further argued that no opportunity of hearing was provided to the applicant to place his point of view before the Member, Board of Revenue. In the impugned order, it was wrongly observed that the land in question lying within 20 chains of the village stands disposed of to the respondents by Colonization Officer, Guddu Barrage, Sukkur, which is against the provisions of the land grant policy vide condition No.9 of Harap grant policy notified on 20-11-1972 and since the show-cause notice was unrebutted, therefore, in exercise of his power vested under section 164 (4) of the Land Revenue Act, the Colonization Officer was directed to take further necessary action in the matter. The learned counsel argued that since 1979 when the applicant acquired the land by way of compromise statement/surrender, he was in continuous peaceful possession and also paying land revenue regularly and promptly. The learned counsel further argued that the learned Appellate Court has not considered the crucial question involved in the matter and appeal was dismissed without framing the points for determination, which is against the provisions of Order XLI, Rule 31, C.P.C., therefore he argued that the judgment passed by the Appellate Court is liable to be set aside. He further argued that besides considering the illegality in the impugned order which was passed without affording any opportunity of hearing to the applicant, it was also necessary for the Appellate Court to look into the other important aspects on which the impugned order is based upon including the matter whether the land in question is lying within 20 chains of the village or not, which important and crucial aspect was also overlooked and appeal was dismissed. In support his arguments, the learned counsel referred to 2010 CLC 1931 (Allahyar and others v. Jiand and others) in which it was held that the provisions of Order XLI, Rule 31, C.P.C. are mandatory in nature and the Appellate Court cannot dispose of an appeal without following the above mentioned provisions and without framing points for determination. He next relied upon 2001 SCMR 772 (Mst. Sughran Bibi and others v. Mst. Jameela Begum and others) in which it was held that the issues framed by the court should correctly reflect the controversies arising from the pleadings of the parties so that effective judgment could be rendered on the disputed facts and the parties should know as to on what facts the evidence was to be led. Learned counsel further relied upon 2002 CLC 1049 (Muhammad Sadiq v. Secretary to the Government of Pakistan, Ministry of Religious Affairs Zakat and Ushr and Minority Affairs) in which it was held that public functionaries are duty bound to decide the controversy with reasons as provided by section 24-A, General Clauses Act, 1897 and where the order does not contain any reason, such order is not sustainable in the eyes of law. The learned counsel lastly relied upon an unreported judgment of this Court passed in Civil Revision No.43 of 2006 (Ghulam Mustafa v. Mst. Hanifan and others) in which the matter was remanded to the trial court with an additional issue to decide whether the suit-land is situated within 20 chains of an existing village or not.

5. The learned counsel representing the respondent No.6 and L.Rs. of respondents Nos.5 and 7 argued that the learned trial court had rightly dismissed the suit as the applicant failed to prove his title to the land in question and he further argued that while passing the impugned order the respondent No.1 rightly held that the land in question is lying within 20 chains of the village, which was disposed of by the Colonization Officer, Guddu Barrage against the provisions of land grant policy, therefore, the impugned order does not call for any interference which was passed in accordance with law.

6. The learned A.A.-G. supported the order passed by the respondent No.1 on 1-12-1994 and argued that proper opportunity was afforded to the applicant but he failed to file reply to the show-cause notice and also his Advocate did not argue the matter and pleaded no instructions before Member, BOR, therefore, the trial court rightly dismissed the suit and the appellate court has rightly affirmed the judgment and decree of the trial court.

7. After hearing the arguments of the learned counsel, I have reached to an irresistible conclusion that while hearing appeal, the learned court instead of framing the points for determination only reproduced the issues framed by the trial court. Although, in the impugned judgment, the appellate court has recognized the grant in favour of Matoo and then in favour of applicant but the appellate court without examining evidence or any policy document, simply affirmed the order of Member BOR that the land in question was within 20 chains of the village and the same was disposed of against the land grant policy. The order of Member BOR was upheld by the appellate court for the reason that the order was passed under the Land Revenue Act, therefore the order will deem to be a judicial order and could not be deemed to be illegal, this approach of the court is not correct. Nothing has been said in the appellate judgment that the learned appellate court has examined the legality, validity and proprietary of the impugned judgment. The learned appellate court further observed that under section 161 of the Land Revenue Act, there is a procedure in which notice is not necessary to be issued to the appellant by the Revenue Officer while hearing appeal and there is no obligation upon the Revenue Officer to serve the notice upon the appellant but in spite of that the appellant was admittedly called absent. The Member, Board of Revenue had passed the order under section 164 of the Land Revenue Act and though notice was served but the advocate representing the applicant simply pleaded no instructions and on the basis of his statement, the matter was decided ex parte. Let it be clarified first that section 161 is only relevant to appeals and it has nothing to do with the provision of Revision provided under section 164 of the Land Revenue Act. The applicant claims to be in possession for a considerable time, therefore keeping in view the principle of natural justice especially in the circumstances when the learned Advocate allegedly pleaded no instructions, at least a further notice was required to be served upon the applicant in order to prove his title and take all necessary steps to defend the proceedings. Though in the order, the Member Board of Revenue observed that the land is lying within 20 chains of the village, but the order does not speak as to how he has arrived this finding. No efforts are shown to have been made to reconcile with cogent evidence or reasoning that the property in question is lying within 20 chains and mere mentioning the grant policy without discussing its relevant conditions is not sufficient to prove that the property in question falls within 20 chains of the village. It also appears from the impugned appellate judgment that while deciding the appeal, the documents produced in the evidence have not been considered but it was observed that since the land in question was meant for "Asaish" purpose of village Muhammad Azeem, therefore, the grant was rightly revoked by the respondent No.1. The function of the appellate court is to examine the legality and proprietary of the impugned judgment and the decree passed by the trial court and pass the judgment keeping in view the law, evidence recorded and documents produced, which have not been done in this case.

8. The expression "points for determination" refers to all the questions involved in the case including question of jurisdiction. While considering the provisions of Order XLI, Rule 31, C.P.C., it is clear beyond any shadow of doubt that the judgment of the appellate court shall state the points for determination, decision thereon and the reasons for decision. The above rule is mandatory in nature and should be followed to enable the appellate court to decide the matter in accordance with law. Where appellate court overlooks, ignores, fails to consider evidence on record or order of appellate court lacks application of mind, it would amount to failure to comply with the mandatory provisions of the above rule. Perusal of the judgment passed by lower appellate court must show that it has made a sincere endeavour to make proper appraisement of merits of case put forward by the parties. The object of Order XLI, Rule 31, C.P.C. is to focus the attention of court and parties on specific rival contentions. Appellate court should discuss evidence on record and its judgment must be supported by reasons.

9. The concurrent findings cannot be considered sacrosanct or sacred in a situation where the rights of the parties are not determined in accordance with law and the judgment of the court below are perverse or based on misreading or non-reading of evidence. The revisional jurisdiction as a matter of fact is meant to rectify the errors made by subordinate courts.

10. As a result of above discussion, the impugned judgment dated 27-8-2004, passed by IVth Additional District Judge, Mirpur Mathelo in Civil Appeal No.69 of 2003 and the appellate decree dated 2-9-2004 are set aside. Matter is remanded to the appellate court to decide the appeal afresh after hearing the parties and if deem fit, the appellate court may also record the additional evidence. H.B.T./M-193/K Case remanded.