1990 PLP 1232 (CLC)

"(5) Whether the transaction is gift and not sale? "(6) Whether the transaction is sale and not gift? "(7) Whether the plaintiff has got superior right of pre‑emption? O.P.P.".

5. On the evidence adduced by the parties, the learned trial Judge took up issues Nos.5 and 6 together and held the transaction evidenced by mutation No.10883 to be one gift and dismissed the suit.

6. The pre‑emptor went in appeal before the learned District Judge, D.I. Khan, Camp at Lakki, who also concurred with the findings of the learned trial Judge on the nature of the transaction in dispute to be one of gift and dismissed the appeal.

7. Akhto Jan son of_ the deceased‑pre‑emptor has come to this Court in revision against the judgments of the Courts‑below.

8. Mr. Muhammad Iqbal. Khan, Advocate in this petition in revision contended:‑ "(a) that the findings of both the Courts below on issues Nos.5 and 6 are the result of misreading of evidence in that the transaction in dispute was fully established to be one of sale; and (b) that the two Courts below by their failure to give findings on issues Nos.7 and 8 despite there being sufficient material on record have committed illegality and that the case warranted remand.?

9. In support of his contentions, the learned counsel for the petitioner, placed reliance on: (1) Muhammad Ali v. Muhammad Hayat (1982 S C M R 816), (2) Abdul Karim v. Hoshiar Khan and 2 others (1983 C L C 1450) and (3) Ali Sajjad Bukhari v. Sabir Ali Shah (P L D 1987 Peshawar 8). All these cases, I am afraid, are distinguishable in that in the first case of Ali Muhammad the trial Judge failed to give reasons for his decision on each issue separately and disposed of the first five issues by simply observing "all these issues have no substantive force in view of finding given under issue No.6". In the case of Abdul Karim, the learned trial Judge after recording partial evidence on the issues of superiority of pre‑emptor's right, limitation, partial pre‑emption, valuation, sale price of market value of the property dismissed the suit on the basis of absence of petitioner's relationship with the vendor alone and therefore, the learned appellate Court remanded the case to the trial Judge for recording the evidence of the defendant in rebuttal and deciding the other issues as well. Obviously such proposition was either canvassed or determined by the learned appellate Court. In the precedent from this Court cited above it was held that under Order XX, rule 5 CRC the trial Court should have based its judgment on the evidence adduced by the parties on all the issues except when case could be competently disposed of upon one or more of the issues:

10. To be more precise it was contended by the learned counsel for the petitioner that the Courts below have acted quite illegally in deciding the suit and the appeal only on two issues leaving all other issues un‑determined. In this context the learned counsel invoked the provisions of rule 5 of Order XX, C.P.C which reads: "In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons there for, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit."

11. A plain reading of rule 5 ibid reveals that generaly in suits in which issues have been struck, the Court shall record its findings upon each separate issue. This rule has, however, made an exception to the requirement of recording a decision on each separate issue and that is that if the finding on any particular issue will dispose of the entire suit then in that case the Court is not required to record its finding or decision with the reasons there for, upon each separate issue. There is, however, no cavil with the general proposition that in appealable cases, the Courts below should, as far as may be practicable, record their findings on all the issues joined. Nonetheless Order XX rule 5 C.P.C. provides that the findings would be given on every issue unless the findings on any particular issue will dispose of the entire suit. Though the decision of a suit pronounced on one or more of issues joined would not be appreciated on the ground of inconvenience in costs involved, it is impossible to lay down a general rule in this behalf. It would depend upon the facts and circumstances of each case. In the instant case it would have been advisable if the suit had been decided on all the issues. Nonetheless in the circumstances of this case when a transaction of gift was attacked as of sale and it was found that it was clearly of gift, therefore, the findings on the consequential relief of possession by pre‑emption were not so mandatory as to warrant the remand of the case because even on remand the ultimate result would not have been different. In this context I may refer to a recent case of. Ghulam Oasim v. WAPDA P L D 1989 Lah. 476 wherein a learned Single Judge of Lahore High Court has observed as under: "Be that as it may, the plaintiff has come up here on revision and the appellate judgment of affirmance of the dismissal of his suit is also against him. Thus, it becomes his burden to make out a case of commission of jurisdictional error in the judgment passed in the appeal below. Such can certainly not be the case here because Section 99 of the C.P.C. forbids the decrees from being reversed or cases being remanded in appeal on account of some error, defect or irregularity in the proceedings of the suit without their affecting the merits of the case or the jurisdiction of the Court. It is obvious that the supposed defect in the disposal of the suit by the trial Court could not have the consequence of affecting the merits of the case and learned District Judge has rightly not set aside the trial Court's decree on the basis of the so‑called irregularity in the disposal of the suit. He has diligently given effect to the requirements of that section and there cannot be any question of some illegality or error of jurisdiction being involved in his appellate judgment." I am in respectful agreement with the observations reproduced above sand would hold that since the two Courts below have concurrently held the transaction in dispute to be one of gift and not of sale, therefore, the failure of the Courts below to record findings on the, other issues particularly that on superiority of pre‑emptive rights does not vitiate their decrees and judgments.

13. For the above reasons, I would not interfere in the impugned judgments and‑decrees of the two Courts below in exercise of my revisional jurisdiction. The revision petition is thus dismissed with costs. A.A./999/P Revision dismissed.