2002 PLP 1262 (CLC)

5. It was also ‑argued that Mst. Bakhatwara, plaintiff had expired such before filing of the suit. Sardar (P.W.2) attorney of L.Rs. of Mst. Bakhtawara in cross‑examination admitted that Mst. Bakhtawara had expired on 5‑1‑1995, whereas suit in hand was filed on 24‑4‑1995 i.e. after her death, therefore, suit filed by dead person could not proceed and deserved dismissal at the very outset.

6. It was also argued that settlement in the area took place in the year 1986‑

87. The entries in the name of petitioner/defendant were made in the Revenue Record but the plaintiff failed to challenge those entries. The suit filed by her on 24‑4‑1995 was, therefore, hopelessly time‑barred and was? rightly dismissed by the trial Court.

7. On the other hand Mr. Abdul Bari Khan Khalil, the learned counsel representing the respondents argued that the suit property was owned by Abdul Wahab, who left behind a son and‑ two daughters. Mst. Bakhtawara being one of the daughters of Abdul Wahab was entitled to 1/4th share in the property left by her father. The claim of the petitioner/defendant that he had purchased the property in dispute through Exh. D.W.1/1 and Exh. D.VI/2 was to be proved by him. The burden of proof of the purchase of the property had shifted to the petitioner/defendant which he failed to discharge. Neither Exh.D.W.l/1 and EXh.D.W.I/2 were proved by examining two marginal witnesses as required under Article 79 of Qanun‑e‑Shahadat Order, 1984 nor the boundaries mentioned in the said deeds tallied with the property in dispute nor any Khasra number was mentioned in the said deeds. The finding of the learned trial Court that the property in dispute belonged to Abdul Wahab was, therefore, correct.

8. Regarding limitation it was argued that attestation of mutation in favour of a person do not confer title upon him. Since it was proved on record that Mst. Bakhtawar being daughter of Abdul Wahab was entitled to his legacy, therefore, she had become the co‑sharer in the property in dispute, hence no limitation would run against her. Reliance was placed on Mst. Namdara and 3 others v. Mst. Sahibzadi and 2 others 1998 SCMR 996 and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1.

9. It was further argued that Abdul Wahab was owner of "one Paisa Daftar" and this position has been admitted by D. W. l in his cross -examination. The property in dispute is in fact that "one Paisa Daftar" which belonged to Abdul Wahab and the learned Appellate Court has rightly appreciated this fact.

10. I have heard the learned counsel for the parties at length and perused the record.

11. The perusal of the judgment of the learned Appellate Court shows that the appeal was dealt with in a very cursory manner. Neither issue-wise findings were given by the learned Lower Appellate Court nor points for determination as envisaged under Order 41, rule 31, were set out and decision given thereon. In fact the learned Appellate Court was swayed with the impression that the learned trial Court had decided all the issues in favour of plaintiff/appellant except issues Nos.1 and 4 and same could not be reopened. The learned District Judge failed to appreciate that it had ample powers under Order 41, rule 33, C.P.C. to pass any decree and make any order which aught to have been passed or made by the trial Court and to pass or make such further or other decree or order as the case may require and this power may be exercised by Appellate Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of respondent or parties. Although such respondents are parties may not have filed any appeal or objection'. In Messrs S.M. Yousuf & Brothers v.. Mirza Muhammad Mehdi Pooya and Amanullah Kirmani PLD 1965 SC 15 it was held:‑‑ "The terms of rule 33, Order XLV, C.P.C. are of the wides amplitude to enable an Appellate Court to pass decrees according to the justice of the case The language used is affirmative, and the rule is further strengthened by non‑obstante clauses, giving the clear impression that the intention is beneficial, so that no legal right should be denied which the Appellate Court considers should be allowed within the framework of the suit‑ The non‑obstante clauses are particularly significant. The fact that the appeal is as to a part only of the decree will not., by itself, restrain the Appellate Court's powers here the whole decree was before the Appellate Court, but the other non‑obstante clause is directly relevant for it totally avoids any condition that a party seeking the benefit of the rule should itself have filed an appeal or objection. Therefore, the mere fact of the plaintiff having filed an appeal against the failure of the trial Court to grant a decree against 'a defendant would not by itself would be sufficient to justify refusal to exercise the power under the rule. The principle that in the absence .of a counter‑appeal being filed a decree against another defendant cannot be given' not only constitutes a fetter upon the extremely vide power given to the Appellate Court by the Code but may also be thought to be in direct contravention of a clear provision in the rule."

12. Similarly in Ahmad Khan v. Sattar Din PLD 1982 SC 148 it was held that the Court under Order 41, rule 33, C.P.C. enjoins the Court to pass any appropriate orders of the purpose of doing complete justice between the parties according to law.

13. Likewise in Hakim Muhammad Nabi Khan and 2 others v. Warasatullah through legal representatives 1987 SCMR 1698 it was held:‑‑ "Lastly, it was urged that as the Settlement Department had not appealed against the impugned judgment but had filed a suit, the judgment had become final so far as the Settlement Department was concerned. But this argument cannot come in the way as under Order XLI, rule 33‑ of the Code of Civil Procedure as well as under Article 187 of the Constitution, the benefit of the relief can also be extended to the non‑appealing party for doing complete justice, and such is the case here."

14. The same principle was adopted in Morio Goth Association v. Muhammad Bachal and 6 others 1985 CLC 1680 by Sindh High Court.

15. Keeping in view the dicta laid down in the abovementioned judgments, it was incumbent upon the learned Appellate Court to have exercised its jurisdiction and finding given by the learned trial Court, on all the issues should have been thrashed, which it failed to do.

16. The learned trial Court as mentioned above, neither bothered to give issue-wise findings nor set out the points for determination as required under Order XLI, rule 31, C.P.C. Drawing wisdom from Executive Engineer, C&W, Mansehra and 2 others v. Muhammad Nasim Khan and 4 others 2002 CLC 427, Mst. Aisha v. Mst. Fatima and others 1991 CLC 1499 and Muhammad Mustaqeem through his legal heirs v. Abdul Haleem through his legal heirs and others 1992 CLC 435 the revision petition in hand is allowed, the impugned judgment and decree passed by the learned District Judge, Buner at Daggar, dated 5‑5‑2000 is B set aside and the case is remanded back to the learned Appellate Court for decision afresh. Since it is an old case, therefore, the learned Appellate Court is directed to decide the appeal within a period of four months and the office is also directed to send the record of the case to the Court concerned within a week. The parties are directed to appear before the learned District Judge, Buner at Daggar on 29‑4‑2002. There shall be no orders as to costs. Q.M.H./M.A.K./492/P Revision allowed.