The brief facts out of which present revision petition arises are that the predecessor in-interset of the respondents-plaintiffs filed a suit for permanent injunction against the petitioner-defendant in the Court of Civil Judge Ist Class, Gujrat. The contents of plaint reveal that the house in-question was allotted by the Assistant Settlement Commissioner Kharian in favour of predecessor-in- interest of the respondents-plaintiffs namely Muhammad Saleem on 26.10.1972, which was allotted under Settlement Scheme No, VII. Muhammad Saleem, the predecessor in-interest of the respondents/plaintiffs remained in its possession. The portion of the house in-question was handed over for Civil Dispensary and for Union Council in the year 1965 at the request of Ch. Muhammad Iqbal, the then Chairman of Union Council. Subsequently, an independent building was constructed and the dispensary was shifted to that building and the possession of that dispensary was returned back to the predecessor in-interest of the respondents-plaintiffs, Muhammad Saleem by Ch. Irshad Ahmad Khan, the then Chairman of Union Council. The petitioner-defendant forcibly intended to occupy a portion with connivance of the Chairman of Union Council, who has no right to do so. The petitioner-defendant was asked not to snatch the possession of portion of the house in-question forcibly and illegally, but on. the denial, the suit was filed before the said Court on 15.9.1993. The petitioner-defendant filed written statement controverting the allegations levelled in the plaint. Out of pleading of the parties, the learned trial Court framed the following issues:- Issues (1)Whether the suit is not maintainable? OPD (2)Whether the plaintiffs are owners in possession of the suit property shown as BCDEGH in the site-plan appended with the suit? OPP (3)Relief.
The learned trial Court dismissed the suit vide judgment and decree dated 12.7.2001. The Respondents-plaintiffs Nos, 1 to 9 being aggrieved filed an appeal before the leaned Addl: District.
Judge, Gujrat, who accepted the same vide judgment and decree dated 20.3.2003, hence, the present revision petition. 2.The learned counsel of the petitioner submits that the predecessor-in-interest of the petitioner was of 7 years; to whom the house in-question was allotted under the Settlement Scheme--VII, which is not Permissible in view of Para No, 5(1) of the Settlement Scheme No, VII. He further submits that the house in-question could not be allotted to the predecessor in-interest of the respondents in view of Para No, 2 of the Settlement Scheme VII as the property in-question was in possession of the Union Council and further of predecessor-in-interest of Muhammad Ramzan has also secured the allotment in the village. He further submits that the question of title is involved in the case, therefore, the suit for permanent injunction is not maintainable. In support of his contention, he relied upon "Mst. Fatima Khanum vs. Ashiq" (N.L.R. 1990 U.C. 608). He further submits that the predecessor-in-interest of the respondents-plaintiffs, was not in possession of the property in- question, therefore, the suit was not. maintainable. In support of his contention, he relied upon "Azmat-ullah. Khan and another vs. M. Shiam Lal and another." (AIR 1947 Allahabad 411). He further submits that the plaintiffs/respondents have filed a suit against the public servant, therefore, the suit was not competent. In support of his contention, he relied upon "Province of the Punjab, etc, vs. Muhammad Hussain, etc." (PLD 1993 S.C. 147). He further submits that the First Appellate Court did not give any finding on Issue No, 1 and reversed the findings without application of mind and without meeting the reasons of the learned trial Court, therefore, the judgment of the First Appellant Court, is not sustainable in the eyes of law.
3. The learned counsel of respondents submits that the first appellate Court has reversed the findings after proper appreciation of evidence after adverting to the reasoning of the learned trial Court as is evident from Para No, 10 of the judgment of First Appellate Court. He further submits that the First Appellate Court has all the powers for reappraisal of evidence on record and the First Appellate Court has given cogent reasons to reverse the findings of the learned trial Court.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. Without adverting to the contentions of the learned counsel of the parties, it is pertinent to mention here that the learned trial has given findings on Issue No, 1 after proper appreciation of evidence consisting of three pages, whereas the first appellate Court did not advert to the reasoning of the learned trial Court in the impugned judgment. The question of law has been settled by the Honourable Supreme Court in 'Madan Gopal and 4 others vs. Maran Bepari and 3 others"(PLD 1969 S.C. 617). The relevant observation is as follow:-- "It seems clear to us that this is a case where the first appellate Court has reversed the finding of the trial Judge regarding the status of Tulsidas without paying any heed to the reasoning given by the first Court. It has also wrongly discounted a very fundamental piece of evidence in the case, namely, the admission of Tulsidas himself in the partition suit, already referred to above."
In case, findings on Issue No, 1 of both the Courts below are put in juxta position then it brings the case in the area that the first appellate Court has decided the case without application of independent mind which is condition precedent in view of law laid down by the Honourable Supreme Court in "Mollah Ejahar Ali vs. Government of East Pakistan and others" (PLD 1970 S.C. 173).
The ratio of the aforesaid case is that the first appellate Court has to reverse the findings of the learned trial Court after meeting the reasoning of the learned trial Court, but the First Appellate Court did not advert to the reasoning of the learned trial Court in the impugned judgment. The judgment of the First Appellate Court is in violation of law laid down by the Honourable Supreme Court in the aforesaid judgment. The concept of jurisdiction and illegality had been considered by the Honourable Supreme Court in "Knawal Nain's case" (PLD 1983 S.C. 53) to cover cases, where the decision on facts is based on no evidence or inadmissible evidence or is so reversed with grave injustice, would result there-from, therefore, the first appellate Court has committed material irregularity and this Court has ample jurisdiction of disturb the findings of the facts in such situation, as per principle laid down by the Honourable Supreme Court in Shaukat Nawaz's case (1988 S.C.M.R. 851).
In view of what has been discussed above, the revision petition is accepted with no order as to costs. Resultantly, the judgment of the first appellate Court is set-aside and the case is remanded to the first appellate Court to decide the case afresh in terms of "Madan Gopal's case" supra (PLD 1969 S.C. 617). I do not want to decide the case myself by doing so as one of he parties would lease right the of remedy before this Court and this Court a would also not benefit the view of the first appellate Court, therefore, the case is remanded to the first appellate Court. The parties are directed to appear before the first appellate Court on 10.3.2004, the first appellate Court is directed to proceed in the matter and decide the same afresh in accordance with.