1997 PLP 2830 (MLD)

(3) Whether five years lease grant in favour of defendant No. l (now dead) was subsequently cancelled? (4) Whether the defendants are in wrongful possession of the suit land? (5) Whether the plaintiffs are entitled to the relief, claimed by them? (6) What should the decree be? After adducing evidence by the parties, Civil Judge dismissed the suit holding that relationship between the parties is that of landlord and tenant which was to be regulated against the Sindh Tenancy Act, 1950 vide judgment dated 30-6-1983. The above judgment was challenged by the respondents/plaintiffs before the District Judge, Dadu which was transferred to the 1st Additional District Judge, Dadu who after hearing the parties decided the appeal and ob served as follows:‑‑

"In fact no finding is given. Issue No.7 and Issues Nos.7 and 8 are not framed at all. Mr. Noor Muhammad, Advocate for respondent has argued that the relationship as landlord and tenant is admitted by the plaintiffs in the plaint. He referred to para No.3 of the plaint in which it is mentioned that the defendants are Haris of the land. In my opinion, there is difference between words Hari and tenant. According to the Tenancy Act the tenant is a person who cultivates the land of another person, while the Hari is a person who cultivates the land of any other person or Government land on his own behalf of his own land. The disputes between the Zamindar and tenant are to be decided by the Tribunal under section 28 but when the Hari is not tenant of the landlord within meaning of Tenancy Act, the Tribunal has no jurisdiction to decide the matter. In the instant case, the allegation as made in the plaint is that the defendants have cultivated the land having occupied unauthorisedly and that they are not tenant of the plaintiffs. The defendants claim that they have taken the land on lease from the Government and that they are tenants of the plaintiff. However, the perusal of case file shows that the plaintiffs withdrew the claim of produce on 13‑6‑1982 vide statement Exh.26. On this statement, the suit to the extent of prayer for produce was dismissed by the learned Civil Judge. Thus there remains claim for possession only for which the Civil Court is the only competent Court to try the suit. The matter could only be decided under Issue No.4 on which no finding is given by the learned Civil Judge and the findings are given on Issues Nos.7 and 8 though such issues are not framed. In these circumstances, in my opinion, there could be no decision regarding produce by final judgment and there should have been finding on Issue No.4 separately. So far the question of title is concerned, the learned Civil Judge has decided the issue in favour of plaintiffs and claim of produce is withdrawn, as such, the issue of possession is to be decided. I, therefore, set aside the judgment and decree of the lower Court. The case is remanded back to the Civil Judge, Mehar to give the findings on Issue No. 4 and re‑write the judgment accordingly."

5. The Civil Judge, Mehar as desired by the Appellate Court, heard the parties and decided the Issue No.4 and observed as follows:‑‑

"I have read the judgment dated 3‑6‑1983 passed by learned Civil Judge, Mehar. Issues Nos. l to 3 were decided by learned Civil Judge, Mehar in favour of the plaintiffs and against the defendants. The findings of the lower Court on Issues Nos.1 to 3 were affirmed by learned Appellate Court. The learned 1st Additional District Judge, Dadu has held that the defendants are not the tenants of the plaintiffs within the meaning of Sindh Tenancy Act, 1950. He further held that the Civil Court is competent to try this suit for possession. The plaintiffs are owners of suit land. The lease grant in favour of deceased defendant Muhammad was cancelled by C.O., Sukkur Barrage, Hyderabad vide his order dated 8‑1‑1980. The findings of the learned Appellate Court to the effect that Civil Court has jurisdiction to hear and decide this suit and that present defendants are not tenants of the plaintiffs within the meaning of Sindh Tenancy Act, 1950 are binding upon this Court. I, therefore, hold that the possession of the defendants on the suit land is not lawful. I further hold that the plaintiffs being owners of the suit and are entitled to its possession." and decreed the suit with costs vide judgment dated 19‑6‑1986 and decree dated 15‑7‑1986. Against this order, Civil Appeal No.24 of 1986 was filed which was also dismissed by the District Judge, Dadu vide judgment dated 11‑10‑1987, hence this revision.

6. Mr. Illahi Bux Kehar, learned counsel for the applicants/defendants has contended that the impugned judgment passed by the learned District Judge, Dadu is in contravention of Order XLI, rule 31, C.P.C. having been passed without application of mind, determination of points, decision thereon and assigning proper reasons thereof; that the learned District Judge, Dadu while dismissing the appeal has not given any finding on any of the issues, as such, judgment of the 1st Appellate Court is not sustainable; that the judgment of the learned District Judge, Dadu is too short which is without consideration of evidence on record and the relevant documents produced by the parties; that the learned District Judge, Dadu has erred in law to hold that the applicants did not challenge the remand order passed by the learned 1st Additional District Judge, Dadu holding that judgment has attained finality; that the judgment passed by the trial Court whereby suit of the respondents/plaintiffs has been decreed is also illegal and is in contravention of Order XX, rule 5, C.P.C. wherein learned trial Court has not given its own findings. Mr. Kehar has cited the case Ali Muhammad v. Muhammad Hayat and others (1982 SCMR 816) and the case Syed Hassan Shah v. Malook Shah and another (1987 CLC 2281).

7. Mr. Azizullah Buriro, learned counsel for the respondents/plaintiffs has contended that the judgment of the trial Court whereby suit of the respondents/plaintiffs was decreed, contains proper discussion on the issue and findings so given by the learned trial Court are according to evidence and documents produced by the parties in the suit; that the findings of the 1st District Judge, Dadu were not challenged by the applicants/defendants that order has attained finality; that the impugned judgment of the learned District Judge, Dadu is full of reasons which carries‑full facts and discussion and does not deserve any interference by this Court; that apparently there is no infirmity, illegality or misreading of evidence by the First Appellate Court and revision application is patently not maintainable and is liable to be dismissed; that the case‑law cited by Mr. Kehar is not relevant to the facts of the present case but the authorities so cited are quite different and distinguishable from the facts of the present case.

8. I would like to discuss case‑law relied upon by Mr. Kehar; (1) 1982 SCMR 816: In this matter, Civil Judge, Vehari had taken the issues together and was pleased to dispose of the suit and the matter went in appeal before the Additional District Judge who dismissed the appeal preferred against the judgment and matter was agitated before the learned Lahore High Court and the learned Lahore High Court held that judgment of the trial Court was not properly written because while deciding Issues Nos. l to 5 learned trial Judge failed to give reasons upon each issue separately. In this background of the matter; petition for leave to appeal was granted by the Honourable Supreme Court. Whereas, here in this case, the learned 1st Additional District Judge, Dadu so also learned Civil Judge, Mehar have fully discussed the Issue No.4 and have given very cogent and convincing reasons in passing judgment and decree which was agitated before the District Judge, Dadu who has analyzed and discussed and giving cogent reasons has arrived at the conclusion that appeal does not deserve any consideration which was dismissed. (2) 1987 CLC 2281: In this matter also revision application was filed and it was contended that First Appellate Court while dismissing the appeal did not discuss several issues of law and facts framed by the trial Court in the suit and only decided one issue in the matter. Whereas in this case, the trial Court in the first instance dismissed the suit of the respondents/plaintiffs which was agitated in the appeal and 1st Additional District Judge, Dadu after analyzing the evidence and documents, set aside the judgment and remanded the, case for fresh decision and the learned trial Court after hearing the parties at length, decided Issue No.4 which is relevant issue and after careful consideration, decreed the suit of the plaintiffs/respondents. It is pertinent to mention that the order of the 1st Additional District Judge, Dadu was not agitated by the appellants/defendants and that order has attained finality. That order has also been perused which shows that learned Judge has considered all the aspects of the case and has given cogent reasons in the order. The suit of the respondents/plaintiffs was decreed which was agitated before the District Judge, Dadu who has also discussed the, entire evidence and has given very sound and cogent reasons in arriving at a conclusion that appeal is devoid of substance and merits and dismissed the same accordingly.

9. I have gone through the material placed with the case. The case‑law' referred by Mr. Kehar, learned counsel for applicants/defendants, in my humble view, is different and distinguishable and is not relevant to the facts of the case. The issues have been properly discussed by the Courts below; apparently there is no illegality, infirmity or misreading of evidence in the matter; the matter is pending since 1981 whereas suit was decreed in favour of the plaintiffs/respondents in June, 1986 and appeal was filed which was decided on 13‑12‑1987 and finally matter has proceeded here in this Court. The revision l application, in my humble view, is devoid of substance and merits and deserves to be dismissed which accordingly is dismissed so that respondents/plaintiffs should get the possession of his lawful property, as per decree of the Civil Court. After hearing learned counsel for the parties, by short order, this revision application was dismissed on 6‑3‑1997 and these are the reasons for the same. A.A./M‑174/K Revision dismissed.