2020 PLP 923 (CLC)

WIQAR AHMAD, J.

This judgment of mine is directed to dispose of the instant civil revision as well as connected cross-objection No. 1-M of 2016 titled Swal Faqir and another v. Nisar Khan and others", as both these petitions arise out of one and same impugned judgment dated 02.02.2016 passed by the learned Additional District Judge/Izafi Zila Qazi Chakdara, Camp Court, Dir Lower, whereby appeal filed by respondent No. 1 against judgment and decree of the learned trial Court dated 20.12.2013 was partially allowed.

2. The plaintiffs (respondents herein) had filed a suit against defendants (petitioners herein) for declaration of their rights of ownership in respect of the property described fully in the head-note of the plaint. Plaintiff had asserted in the plaint that both the parties bequeathed their respective shares from their common predecessor namely Habibullah. The shares of the parties in the immovable properties were stated to have been separated about 22 years before institution of the suit, however, the defendants in the suit were alleged to have been denying the rights of plaintiff in the suit property.

3. Defendants in the suit were summoned. They filed their written statement and issues were framed subsequently. Evidence was recorded thereafter, and on conclusion of proceedings in the suit same was dismissed vide judgment and decree dated 20.12.2013 of the learned Civil Judge/Illaqa Qazi-V Timergara. Appeal was filed against the said judgment which was pending before the Court of learned Additional District Judge Chakdara Dir Lower. During pendency of the suit, the parties effected a settlement, whereafter, their joint statement was recorded, commission was appointed and on the basis of report of the commission the appellate Court disposed of the appeal. Feeling aggrieved from the judgment of the learned appellate Court, the petitioners have filed the instant Civil Revision No. 77-M/2016. Later on, the respondents also raised a challenge to the judgment of the appellate Court by filing a cross-objection which was registered as 1-M/2016.

4. Learned counsel for the petitioners drew the attention of this Court towards the joint statement of the parties recorded before the Court of learned Civil Judge/Illaqa Qazi Timergara on 07.12.2012 and asserted that the petitioner had never promised to receive consideration in terms of money for the excess area if found with the defendants in the case and that instead the excess area itself was agreed to be relinquished by the person in possession of the same. He further raised objection to maintainability of objection petition of the respondents and stated that in a revision petition objection petition could not be filed which remedy is only available in cases of appeal. He added that respondents have not filed any revision against the impugned judgment, therefore, they are precluded from raising any objection to the same. He has placed reliance on the case of "Messrs United Awan Construction Company through proprietor v. Faisal Raza and others" reported as "2003 YLR 1025 (Lahore)".

5. Learned counsel for respondents relied upon the judgment of "Mst. Bhagay v. Mst. Fatima Bibi" reported as "PLD 2004 Lahore 12" and stated that cross objection may be filed in a revision petition as well. He further relied on the judgment of "Saeed Ullah Khan v. Muhammad Khalid and 3 others" reported as "2018 CLC 648" and judgment in case of "Waseem Gul and another v. Shahid Jameel and another" reported as "2019 YLR 644" and stated that the appellate Court has neither determined the questions for determination nor given findings on it, therefore, the judgment of the learned appellate Court is liable to be set aside.

6. I have heard arguments of learned counsel for the parties and perused the record.

7. Perusal of record reveals that the parties agreed and recorded their statement in the learned trial Court on 07.12.2012 to the following effect; In pursuance to the said statement, Tehsildar Timergara was appointed as local commission, who submitted his report in the learned trial Court. None of the parties raised any objections to the report of local commission and never felt any grievance against it. No objection has ever been raised to the findings of the local commission in the appellate Court or this Court. The controversy was thus satisfactorily resolved in the light of report of the local commission, in terms of which a decree has been granted by the learned appellate Court by way of the impugned judgment. The contention of petitioners; that the excess area has to be relinquished rather than granting compensation in terms of money; seems to be unreasonable and an afterthought, as grant of compensation had been clearly provided in the statement dated 07.12.2012 in the following words; The said sentence clearly indicates that the plaintiffs had agreed on receiving compensation in terms of money which has appropriately been granted by the appellate Court in the impugned judgment while determination of the quantum of amount has been left to the trial Court to be determined in the proceedings for the grant of final decree. The Civil Revision No. 77-M of 2016 is therefore without any force.

8. Now coming to the objection petition filed by the respondents in the case, it is noticeable that the first question for determination of this Court is as to whether a cross-objection is maintainable or not. It has been held by the Hon'ble Supreme Court of Pakistan in the case of "Zakirullah Khan and others v. Faizullah Khan and others" reported as 1999 SCMR 971 that a cross objection may also be filed during revisional proceedings. Relevant part of the findings of the august Court is reproduced for ready reference as under; "Cross-objection could also be filed in revisional proceedings. If cross-objections were not filed by respondent, an analogy could safely be drawn to hold that while arguing a revision, respondent, who was not challenging the decree in his favour, but only the findings on a particular issue, could assail same during course of his oral submissions." After findings the cross-objection maintainable, we take the arguments of learned counsel for the objector, who is respondent in the main case for analysis. He had contented on the dint of ratio of the judgments of this Court in the cases of "Waseem Gul and another v. Shahid Jameel and another" (2019 YLR 644) and Saeed Ullah Khan v. Muhammad Khalid and 3 others (2018 CLC 648) that it was mandatory requirement for the appellate Court to have identified the questions for determination according to Order XLI, Rule 31 of C.P.C. and then to have given findings on the same after analyzing it according to the evidence on record. There is no cavil with the proposition that an appellate Court is under an obligation to identify the questions for determination and then to record its findings on the same after proper reasoning. However, there may be an exceptional situation to the said rule of procedure. The instant case is also the one falling in an exceptional situation where the judgment of the appellate Court has primarily been based on the report and findings of the local commission appointed in pursuance to a settlement entered into between the parties. As stated earlier, the said settlement has been running admitted till this Court and report of the local commission has also stood clear of any objection from any of the party. The parties had in-fact resorted to an alternate mode of settlement of the dispute by getting their statement recorded in the civil Court and the learned appellate Court has rightly granted the judgment and decree in light of the said settlement and the proceedings of commission carried on in pursuance to the said settlement. In such a situation the normal rule of procedure contained in Order XLI, Rule 31, C.P.C. shall not apply as it was not possible that the case was determined in light of settlement of the parties as well as on merits by appreciating the evidence. Alternate mode of settlement of dispute is not only allowed under section 89-A, C.P.C. but is an effective and preferable mode of settlement of disputes, as it normally puts a led on the controversy and do not normally generate further litigation. In the case in hand also the controversy has effectively been resolved in the best interest of justice and I do not find any injustice causing to any of the party. Further agitating the same before This Court by both the parties was not an appreciable act as a controversy which could have been finalized with the judgment of the learned appellate Court is being needlessly dragged on. The Hon'ble Lahore High Court when faced with a similar situation in the case of "Hashim Ali v. Asghar Ali" reported as "2014 YLR 2150" held as follows; "When a party adopted a procedure for decision of the lis and pressed the same before the Court for adopting the same which was not against the law and was adopted and result of the same was against the party pressing the said procedure then said party could not be allowed to back out from the commitment before the Court. Revision was dismissed in limine." Further reliance is also placed on the case of "Muhammad Rashid Sharif v. Board of Intermediate and Secondary Education, Faisalabad" reported as "2011 CLC 1561" and the judgments reported as" PLD 2005 Lah. 742 and PLD 2007 Lah.

581. I find no force in the cross objection as well and same is therefore found meritless.

9. For what has been discussed above, both Civil Revision No. 77-M of 2016 as well as cross-objection No. 1-M of 2016 are accordingly dismissed. ZC/324/P Revision dismissed.