2019 PLP 2057 (CLC)

ABDUL HAMEED BALOCH, J.

This judgment disposes of instant civil revision petition filed by petitioner Hafiz Muhammad Amin son of Gazzi Khan, under section 115, C.P.C., against the judgment and decree dated 03rd September, 2015 (hereinafter referred as, impugned judgment and decree") passed by the learned Majlis-e-Shoora, Kharan (hereinafter referred as, "the appellate Court"), whereby the appeal of the respondents was accepted and judgment dated 2nd February, 2015 passed by the learned Qazi Kharan (hereinafter referred as, "the trial Court") was set aside and suit was decreed.

2. Facts of the case are that the respondents Nos.1 and 2 filed a suit for declaration and permanent injunction in the trial court with the averments that the land property named Cheedai situated at Mouza Lando Tehsil and District Kharan belonged to plaintiffs maternal grandfather late Hammal Khan son of Shakkar Khan, who gifted the above land to his daughter late Ayesha (plaintiff's mother) thereafter she transferred the ownership to her sons i.e. plaintiffs and the plaintiffs were minor, therefore, the plaintiffs natural guardian (father/ respondent No.2) look after and cultivates the same and afforded the educational expenditures out of lands in question income. The respondents Nos.1 and 2 are real brothers, their properties were joint, however, in the year 2009 they devolved their property amicably. The respondent No.1 moved an application under section 135 Land Revenue Act for partition before the Assistant Controller Kharan, as such, their maternal land divided among them. The plaintiff's moved an application under Order VI, Rule 17, C.P.C. for amendments, the same was allowed by the trial court and the suit was amended the Assistant Collector/ Tehsildar Revenue was impleaded in defendant category.

3. The suit of the petitioners/ plaintiffs was contested by the respondents/defendants by means of filing written statements, wherein vehemently denied the claim of petitioners/ plaintiffs.

4. Out of the pleadings of the parties the learned trial Court framed the following issues:

5. After recording evidence and hearing the parties, the learned trial court dismissed the suit of the plaintiffs. While appeal filed by the plaintiffs/respondents accepted on 21.08.2014 and remanded the matter to the trial court for decision afresh.

6. While learned trial court dismissed the suit on 02.02.2015 and appeal filed by the plaintiffs before the learned appellate Court, which was accepted on 03.09.2015.

7. The learned counsel for petitioner contended that the learned appellate court mis-appreciated the evidence on record, which came to wrong conclusion; that the appellate court did not elaborate each issues which is against the Order XLI, Rule 31, C.P.C; that the plaintiff has failed to prove his case; that the statement of plaintiff is contradictory in nature and suit of plaintiff is time barred; that the mutation of the area has been effected more then 15 years above; that the suit land was mutated in the name of plaintiff in rebuttal of mutation the plaintiff did not produce any documentary evidence oral evidence cannot rebut documents.

8. Learned counsel for respondents Nos.1 and 2 contended that the judgment of appellate court is well-reasoned and accordingly to law; that the learned appellate court properly appreciated the evidence and no misreading and non-reading has been pointed out by the learned counsel for petitioner.

9. On the other hand, learned counsel for respondent No.3 supported the judgment of the appellate court.

10. Heard the learned counsel for the parties and perused the record minutely, which reveals that the trial court framed issues for deciding the case on the basis of evidence available on record, which is incumbent of the appellate court to fallow the procedure which laid down under Order XLI, Rule 31, C.P.C. it would be advantaged to reproduce the said order as under: "

31. Contents, date and signature of judgment.--The judgment of the Appellate Court shall be in writing and shall state--. (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and, (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein." No doubt the appeal / revision is continuation of suit, therefore, it is for appellate court to assess entire evidence produced by the parties examined findings recorded by the trial court and given reasons for upholding and reversing the same. The appellate court was under legal obligation to decide the dispute by Order XLI, Rule 31, C.P.C., it will be failing to do performance of his duty the judgment would not be according to law. The judgment of appellate court shall contain the point for determination of dispute and must have reason for decision which are lacking in the impugned judgment. Reliance is placed in the case of Jan Muhammad v. Mulla Abdul Rehman and 4 others PLD 1998 Quetta 34, which reads as under: "The Majlis-e-Shoora, as is evident from the impugned judgment did not consider the evidence on record nor recorded any reason or finding based upon evidence in the case, inasmuch as; it did not apply its mind to the facts of the case. Without dilating upon the other contentions raised before this Court, by no stretch of arguments, the impugned judgment can be termed as 'judgment' within the meaning of Order XLI, Rule 31, C.P.C. Appellate Court is under legal obligation to decide each of the point involved in the matter to which it is seized of, must to state its reasons for the decision arrived at and at least substantial compliance with the requirements of Rule 31 of Order XLI, C.P.C. is mandatory so that it should be evident from judgment that Appellate Court applied its mind consciously to the matters involved in the case; which enabled Court to pronounce the judgment."

10. The plaintiffs/respondents prayed for cancellation of mutation, but the learned appellate court cannot elaborate the same in this regard, neither any order passed for cancellation of mutation or otherwise. Needless to say it would be inappropriate to touch the evidence of the case it might be effected the merits of the case. For the above reasons, the instant civil revision petition is accepted and the impugned judgment and decree dated 03.09.2015 passed by the learned appellate court is set aside and the case is remanded to the appellate court (Majlis-e-Shoora, Kharan) for decision afresh according to provision of Order XLI, Rule 31, C.P.C. after hearing the parties and to decide the matter within two months expeditiously. ZC/86/Bal Case remanded.