1989 PLP 1680 (CLC)

(i) Whether the suit is bad for non‑joinder of necessary parties? OPD. (ii) Whether the suit is within time? OPP. (iii) Which of the rival plaintiffs has matured his title as prayed for in the cross‑suits? OPP. (iv) Relief.

5. Mr. Abdul Jabbar Khan, Civil Judge First Class, as he then was, after appraising the evidence both oral and documentary in an elaborate and well‑ reasoned judgment decided issue No.3 in favour of Haji Mir Afzal and decreed his suit No.304/1. In consequence he dismissed suit No.299/1 filed by Tehsil, the rival claimant.

6. Dis‑satisfied with the impugned consolidated judgment, Tehsil filed two appeals Nos. 77/13 and 79/13 of 1981. Likewise Jangi Khan also filed appeal No.78/13 of 1981. All the three appeals were disposed of by a single order dated 17‑9‑1985 passed by Mr.Ziauddm Khattak learned Additional District Judge, Bannu, at Lakki.

7. It appears that the thrust of the arguments before him, was confined to the findings of the learned trial Judge only on issue No.3. The learned Appellate Court held the view that Haji Mir Afzal respondent was not proved to have been in possession of the disputed land and in this context sought to lend support from a certified copy of the plaint in civil suit No.301/1 of 1977 (Exh.P.W.3/1). Since the learned Appellate Court's finding turns on the question of possession, it would be worthwhile to reproduce its precise reasons which are as under:‑ As he (Haji Mir Afzal Khan) was not in possession of the suit land at the time of institution of declaratory suit No.304/1 of 1977, therefore, he was wrongly given declaration regarding rights of mortgagors having extinguished by efflux of time and title passed on to him under section 42 of Act No.l of 1877 read with section 28 of the Limitation Act. Consequently, the findings of the learned Lower Court on this issue to this extent are reversed".

8. As for the appeal filed by Tehsil that is what the appellate Codrt has observed:‑ "As far as Tehsil Khan (appellant in Civil Appeal No.77/13 of 1981 and plaintiff in Civil Suit No.299/1 of 1977) is concerned, his mottgagee rights purchased by his predecessor‑in‑interest vide mutation No.3825 attested on 11‑4‑1938 are not more than 60 years old and that those are yet to mature into title under section 28 of the Limitation Act. In such circumstances, his suit for declaration of title a/s 42 of Act No.l of 1987 was rightly dismissed by the learned Lower Court."

9. Haji Mir Afzal and Tehsil have challenged the findings of the learned Appellate Court by way of filing two revision petitions. Since common questions of law and facts are involved in these petitions, I propose to dispose of the same by this single order.

10. The first contention raised by the learned counsel for Haji Mir Afzal petitioner was that the judgment recorded by the Additional District Judge does not satisfy the provisions of Order LXI rule 31 of the C.P.C. which enjoin that an appellate judgment must state, inter alia, ;he points for determination, the decision thereon and the reasons for the decision. He pointed out, and rightly so, that the learned Appellate Court was seized of a legal proposition as to whether the rival mortgagees have prescribed their title by efflux of time. The learned counsel thus argued that the learned Additional District Judge ought to have appraised the oral as well as documentary evidence for coming to a definite conclusion on crucial issue No.3 but he has erroneously placed reliance on a copy of plaint in civil suit No.301/1 of 1977 which was tantamount to admitting additional evidence. The learned counsel submitted that the learned Appellate Court could legally allow to adduce additional evidence but it has outrightly admitted in evidence the copy of the said plaint in violation of clause (b) of sub. rule (1) of Rule 27, Order LXI, C.P.C. 11. 1 find every force in the contentions of the learned counsel of Haji Mir Afzal petitioner. The appellate judgment reversing the judgment of the lower Court is required to be adequate and satisfactory. Not only this but it must contain definite findings on the questions involved, and must give reasons for reversing the decision of the trial Court. In the instant case the learned. Additional District Judge has ignored altogether the documentary as well as oral evidence adduced in the suits on the crucial question reduced into issue No.3. He seems to have just got rid of the case by taking into consideration a copy of the plaint in another suit which had no bearing on the point in controversy and that too in violation of the mandatory provisions of Rule 27 Order LXI ibid. The impugned appellate judgment is obviously no judgment in the eye of law. It is now settled that Rule 31 of Order LXI C.P.C. is imperative and a judgment which is not in accordance of it, is not sustainable in law. The learned counsel appearing on behalf of Jangi Khan and Tchsil respondents have conceded to this valid objection raised on behalf of Haji Mir Afzal petitioner.

12. As I have not been able to state upon the judgment of the learned Additional District Judge whether findings of fact have been correctly arrived at I would set aside the judgment of the learned Appellate Court and remand the case to it under section 151, C.P.C. for rewriting the judgment in accordance with law:' The costs to follow the event. J AA./797/P Case remanded.