1. These revisions assail the common judgment passed by learned lInd. Additional District Judge, Dadu on 18-3-1989, whereby he dismissed two appeals, Civil Appeal No,53 of 1982 filed by Yakoob against Muhammad Juman and Lal Khatoon and Civil Appeal No,54 of 1982 filed by Abdullah and others against Juman and others. Those appeals were directed against a common judgment dated 17-4-1982 and decrees passed by learned Civil Judge, Mehar, whereby Suit No,2 of 1977 filed by Muhammad Juman and Lal Khatoon against Yakoob was decreed and preliminary decree was drawn, while Suit No,31 of 1977 filed by Abdullah and others against Juman and others was dismissed. Suit No,2 of 1977 was filed on 13-1-1977 by respondents Muhammad Juman, Mst. Lal Khatoon for mesne profits claiming that they owned 50 paisa share in agricultural land bearing S.No,208 Deh Gahi Mahessar, Taluka Mehar and the remaining half belonged to defendant Yakoob, the applicant herein. According to them, the applicant/defendant used to give them the zamindari share of the produce of the suit-land, but for the period of two years before filing of the suit, refused to make any payment in spite of their several demands. They therefore, prayed for recovery of zamindari share of the produce for the year 1975-76 and Kharif 1976. The applicant/defendant in his written statement denied the claim of respondents/plaintiffs and claimed that the entire suit-land belonged to him and his brothers Abdullah and Sulleman, who were in possession of the whole S.No, and enjoying the produce in their own right. They refuted the allegation of unauthorized possession.
2. On 26-9-1977 Abdullah, Muhammad Yakoob the applicant (herein) and Sulleman, all sons of Younis, Mst. Bhag Bhari widow of Younis and Irshad and Rasool Bux sons of Allah Dino filed Suit No,31 of 1977 for declaration and permanent injunction against Juman and Mst. Lal Khatoon-respondents (herein) and one Usman. They claimed that the suit-land was originally property of one Ayo Fakir, who had two sons, Younis and Allah Dino and also one daughter Mst. Hajani, Ayo Fakir died about 70 years prior to the filing of suit and after his death Mst. Hajani gifted her share to Younis and Allah Dino who became owners of the suit-land in equal shares. Allah Dino son of Ayo Fakir died some time before 1934 and left behind one son Rasool Bux and one daughter Mst. Sahib Khatoon, who later on died leaving behind Rasool Bux the only legal heir. Mst. Sahib Khatoon however, in her lifetime gifted away her share to her brother, who as such became the sole owner of 50 paisa share in the suit-land. Rasool Bux died 5/6 years before Independence of Pakistan leaving behind his wife Lal Khatoon and uncle Younis son of Ayo Fakir. Later on Younis died leaving behind the aforementioned plaintiffs and one Mst. Fatima as legal heirs. Subsequently, Mst. Fatima died leaving plaintiffs as the only legal heirs. It was alleged in the plaint that after the death of Younis, Mst. Lal Khatoon through her father Abdul Karim got the household articles left by Rasool Bux for her two annas share and in exchange she gave her two annas share to the said plaintiffs. According to plaintiffs, such arrangement (private partition) had taken place in the year, 1952 and thereafter in consequence thereof the said plaintiffs became sole owners of the suit land and the record of rights was accordingly changed in their names. They claimed that the private partition has been acted upon and even on account of adverse possession, the rights of other persons have extinguished. They alleged that Juman and Usman with the help of Revenue staff got their share entered into record of rights in S.No,210 of Deh Gahi Mahessar in place of plaintiffs, but it was challenged and the said appeal was allowed. Thereafter Juman and Mst. Lal Khatoon with the help of Revenue staff and without knowledge of aforesaid plaintiffs got 50 paisa share in the suit-land entered in the Revenue Record in their names and threatened to obtain forcible possession. The plaintiffs filed Suit No,42 of 1975 against the aforesaid defendants, but the same was rejected on 5- 9-1977. They stated in the plaint that during pendency of the above mentioned Civil suit, the suit for mesne profits was filed by defendants. In the above said suit No,31 of 1977 Muhammad Juman filed written statement, which was adopted by two other defendants. They took the plea that originally half of S.No,208 belonged to Allah Dino son of Juman and the other half belonged to Ayo Fakir. After death of Allah Dino, his son Rasool Bux and daughter Mst. Sahib Khatoon inherited the land. Rasool Bux died leaving behind his wife Lal Khatoon, his sister Sahib Khatoon and his mother Janat Khatoon. She also died soon after, Sahib Khatoon died after Rasool Bux and she was married to Abdul Karim, who became only legal heir after her death. Abdul Karim married Lal Khatoon from whom Juman was born. Ramzan was also brother of Rasool Bux, but he died before Rasool Bux. They clarified that Ayo Fakir had only one son Younis and one daughter Mst. Hajran. They denied the fact of the private partition and pleaded that the land belonged to Juman and Mst. Lal Khatoon, who remained in possession up to 1974-75. They denied that Mst. Hajran was sister of Allah Dino. They also denied the fact of gift. Regarding the Revenue appeal, they stated that the matter was decided in their favour and record of rights was accordingly mutated. Both the suits were consolidated and on 11-2-1978 the following consolidated issues were framed and Suit No,31 of 1977 was treated as leading suit. Subsequently, two more issues numbered 1-A and I-B were also framed. Over all position of the issues is as under:--
(1) Whether the plaintiffs in Suit No,31 of 1977 are owners of entire S. Nos .208?
3. (1-A) Whether deceased Rasool Bux at the time of death, left behind any household articles to be inherited by the parties, if so, what articles were left by him?
4. (1-B) Whether any private partition in the year 1952 was effected between the parties and acted upon by them under which the plaintiffs were given the suit-land and defendant Mst. Lal Khatoon was given only household articles towards her share?
(2) Whether Juman and Mst. Lal Khatoon are owners of 8 annas share of S.No,208?
(3) Whether defendant tuman and Mst. Lal Khatoon are entitled to get produce from the plaintiff Muhammad Yakoob from 8 annas share of S.No,208 from years 1975-76 and onwards. If yes till what time?
(4) Whether the plaintiffs in Suit No,31 of 1977 can claim adverse possession. If yes whether they have completed their title by prescription?
(5) Whether the plaintiffs in Suit No,31 of 1977 are entitled to any relief?
(6) What should the decree be? The plaintiffs examined P.W.1 Abdullah, P.W.2 Muhammad Bux, P.W.3 Muhammad Yakook, P.W.4 Muhammad Anwar, P.W.5 Haji Roshan and P.W.6 Azizullah. Defendant examined D.W.1 Muhammad Juman, D.W.2 Muhammad Usman, D.W.3 Muhammad Moosa and D.W.4 Abdul Rasool. After hearing the counsel for parties, the learned Civil Judge, Mehar dismissed the Suit No,31 of 1977 and decreed the Suit No,2 of 1977 directing that the preliminary decree be framed in the last mentioned suit and Commissioner be appointed to ascertain the mesne profits. The Civil Appeals No,53 and 54 of 1982 were filed, .Whereby the judgment of Civil Judge, dismissing the Suit No,31 of 1977 was maintained and it was held that defendants in Suit No,31 of 1977 and plaintiffs in Suit No,2 of 1977 were owners of the land and they were entitled to mesne profits; the judgment in Suit No,2 of 1977 was also maintained and the appeals were accordingly dismissed. The appellants filed these revisions, which are being disposed of by this common judgment. I have heard Mr. Mohanlal K. Makhijani, learned counsel for applicants and Mr. Muhammad Anwar Durrani, learned counsel for. Respondents.
5. The significant feature of this case is that there are concurrent findings on points of facts rendered by the trial Court and Appellate Court both. Notwithstanding, this drawback Mr. Mohanlal, learned counsel for applicants contended that the appellate judgment suffers from legal infirmity and that the points for determination have not been framed and there is improper exercise of jurisdiction as also misreading of evidence. The appellate judgment is, according to him, liable to be set aside in view of the law laid down in Nisar Abbas v. Manzoor Haider Shah PLD 1989 SC 568; Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal PLD 1987 SC 447; Hassan Shah v.
6. Malook Shah 1987 CLC 2281. On the point of family settlement and private faisla he submitted that oral, family settlement is permissible under the law and since it does not amount to transfer, it is not registrable. He relied on Yenkataraju v. Yedukondalu AIR 1958 Andh. Pradesh 147 and Ram Charan Das v. Girja Nandini Divi AIR 1966 SC 323 on this point. He contended that on all other points of facts, no doubt the evidence has been discussed by the trial Court but the Appellate Court has simply affixed its stamp of the findings on the lower Court, without independent discussion. Mr. Muhammad Anwar Durrani, learned counsel for respondents contended that the revisions are barred by time. Mr. Durrani emphasized that there are concurrent findings on points of facts and the trial Court has elaborately discussed each and every aspect of this case on all issues and Appellate Court 'has also in consequence examined the relevant evidence. He argued that on the point of relationship the evidence on record has been thoroughly discussed and it has been proved that Allah Dino was not son of Ayo Fakir but shareholder with Ayo Fakir. He urged that the oral transfer of property was not permissible and the alleged private faisla made on behalf of Mst.
7. Lal Khatoon had no legal value. The outstanding contention of Mr. Mohanlal learned counsel for applicants was that the First Appellate Court failed to formulate points for determination and give findings within the meaning of Order XLI, rule 31, C.P.C., and as such his judgment was liable to be set aside and the appeals should consequently be remanded to the First Appellate Court for rehearing, in view of the rule laid down in Nisar Abbas v. Manzoor Haider Shah (PLD 1989 SC 568) and Hassan Shah v. Malook Shah1987 CLC 2281. This contention can hardly be sustained in view of the discussion of evidence made by the First Appellate Court in its judgment. The learned Appellate Court had first taken up the question as to how the appellants were the owners of the suit land. The second point discussed by the Appellate Court relates to the much spoken 'private faisla', wherein Mst. Lal Khatoon allegedly surrendered her share in lieu orthe articles received by her. Lastly, the Court has threshed the point of adverse possession also. On all these points, the discussion of evidence made by the trial Court has been kept in mind. It would be too technical to emphasize that the points for determination within the meaning of Order XLI, rule 31, C.P.0 should have been formulated issue- wise. In essence this rule calls for a total grasp on the subject-matter on all relevant controversies.
8. The Appellate Court has thoroughly examined the case under the aforesaid three subjects and it can be conceived that the aforesaid topics engulfed the entire controversy between the parties. It is not necessary that the volume of' the discussion made by the Appellate Court shall be of a particular magnitude. It is only to be seen if conclusions drawn are based on proper reading of evidence and are not perverse. It may be noted that on over all consideration of the principles laid down by the Hon'ble Supreme Court in the different cases, this Court in the case of Mst. Husna Bano v. Faiz Muhammad Magsi (2000 CLC 709) had summarized the requirements in the following terms.
9. "11. Keeping in view the principles laid down by the Hon'ble Supreme Court it is to be seen if the Courts below, while recording the finding of fact, have either misread the evidence or ignored any material piece of evidence on record or the finding is perverse. Merely because a conclusion different from that arrived at by the two Courts below was possible shall not be made a ground justifying interference with a concurrent finding on a point of fact and unless it is established that findings are based on no evidence and are result of conjectures in consequence of fallacious appraisal of evidence, misreading, non-reading or perverse appreciation of evidence, the finding of First Appellate Court need not be disturbed in exercise of revisional jurisdiction." It would be seen that the Appellate Court has to a good extent grappled with the controversial points and has discussed the same. So also, the trial Court has elaborately scrutinized, filtered and assessed the entire evidence on all issues. Each and every aspect has been attended to C and the credibility of witnesses has been assessed on the basis of what was said in the examination-in- chief and what was elucidated in cross examination. Format of the judgment of both Courts below is not open to question. In substance the main question was whether Allah Dino and Younis were sons of Ayo Fakir or Allah Dino was not son of Ayo Fakir, but was independently owner of half share in the suit-land the remaining half going to Ayo Fakir. The parties have led oral evidence on this point, but admittedly no documentary evidence directly touching this fact has been produced by either of them. The witnesses on both sides are close relatives barring one side and 2 on other. From the admissions made by witnesses it transpires that P.W.1 Abdullah is the plaintiff himself, he is son of Younis. P.W.2 Mohammad Bux is married to niece of Abdullah and has given his sister in marriage to Akram.
10. P.W.3 Mohammad Yakoob is plaintiff No,2 and is brother of plaintiff Abdullah, P.W.4 Mohammad Anwar at one stage denied to be related to the plaintiffs, but then he admitted that his sister was married to one Akram the brother of plaintiff, P.W.5 Haji Roshan is son-in-law of plaintiff Yakoob, P.W.6 Azizullah was examined in rebuttal on the newly-added issues, but he stated that he is hari and he did not know anything regarding faisla effected between the parties. He did not give evidence on any other fact. On the other side D.W.1 Mohammad Juman is defendant No, 1 , D.W.2 Mohammad Usman is however, an independent witness and his evidence has even not been challenged on material points. D.W.3 Mohammad Moosa is distant cousin of plaintiff Abdullah, but defendant Juman is his son-in-law. D.W.4 Abdul Rasool is also an independent witness and formerly used to reside in the village of parties, but of late he shifted to another village. All these related witnesses have tried to give version in favour of the pleadings of respective parties. The witnesses of plaintiff said that Allah Dino is brother of Younis son of Aye Fakir but D.Ws maintained that Allah Dino was not son of Ayo Fakir and had independent share. The learned trial Court has thoroughly examined their evidence. In fact one aspect is manifest that no independent witness has spoken on the side of plaintiffs, but on the contrary two independent witnesses namely Mohammad Usman and Abdul Rasool have with full voice supported the version of defendants. As already pointed out only two questions have been put to Mohammad Usman, one about the death of Juman and the other was a suggestion that the plaintiffs were in possession of the suit-land, which he denied. He was not confronted with any other fact to the effect that,the above denial was incorrect. Practically the evidence of Mohammad Usman has gone unchallenged. He has clearly stated that originally half share of the suit-land belonged to Allah Dino son of Juman and after his death, the suit-land devolved upon his son Rasool Bux, daughter Shaib Khatoon and wife Janant Khatoon and ultimately it devolved upon defendant No,2. This unrebutted piece of evidence is by itself sufficient to prove the case of defendants/respondents. Again Abdul Rasool deposed that he knew deceased Rasool Bux, who is not related to Younis and Abdullah and that there had been no partition between Mst. Lal Khatoon and Abdullah. Although some suggestions have been put to him, but he has denied all. Plainly, he being an unconnected person, his credibility was not to be doubted. Above all Mohammad Jaman the defendant himself deposed that originally the suit-land belonged to Allah Dino son of Juman Mahessar to the extent of 8 annas share and the remaining 8 annas shale belonged to Ayo Fakir and after the death of Allah Dino, his share devolved upon his son Rasool Bux and daughter Mst. Sahib Khatoon. After death of Rasool Bux, his share devolved upon his sister Mst. Sahib Khatoon, wife Mst. Lal Khatoon and mother Mst. Janat. Mst. Janat died and her share devolved upon her daughter Mst. Sahib Khatoon, who was married to Abdul Karim and after death of Sahib Khatoon her share devolved upon her husband Abdul Karim. He has given further details about relationship, but basically the most significant aspect was that he spoke in clear terms about 8 annas share of Allah Dino son of Juman, the remaining share in the suit-land being that of Ayo Fakir. Although in cross-examination a suggestion was put to him that entire suit- land pertained to Ayo Fakir but the main version that Allah Dino was not son of Ayo Fakir and was son of Mohammad Juman was not challenged. The learned trial Court has rightly observed that in view of the settled law that if a particular version in evidence on a material point of fact goes unchallenged, the same shall be deemed to have been admitted. In this manner, the oral testimonies furnished on plaintiffs side being related witnesses were sufficiently controverted and nullified by two independent witnesses coupled with the unchallenged evidence of defendant Mohammad Juman. I am unable to subscribe to the contention of Mr. Mohanlal, learned counsel for applicants that there had been misreading and non-reading of evidence by the Courts below. On the cardinal point when there are concurrent findings by the trial Court and Appellate Court, it would not fall within the jurisdiction of revisional Court to interfere and say that the same are questionable because some other conclusion was also possible. As far the point of private faisla between the parties is concerned, Mr. Mohanlal urged that it was family settlement was not a transfer in strict legal sense as such it was not registerable, therefore, it could be oral. He relied on Yenkataraju v. Yedukondalu (A.I.R 1958 Andhra Pardesh 147) and Ram Charan Das v Girja Mandini Divi (A.I.R 1966 SC 323) on this point. There is no cavil to the aforesaid proposition, but lack of evidence is the redial point in this case. As already discussed, the independent witnesses have come forward with versions in favour of the defendants, which need not be disbelieved as against interested witnesses examined on the side of plaintiffs. The learned counsel for respondents was equally justified in contending that Mst. Lal Khatoon, as stated by the witnesses, was a parda observing lady and her father could not enter into faisla on her behalf. It is admitted by some witnesses that her father Abdul Karim had conducted faisla on her behalf. I agree with Mr. Durrani that the interest of pardanashin is to be strictly safeguarded by the Court and their consent should not roughly be presumed. In a male oriented society the male members of family often make faisla without consulting the female whose rights are directly involved, which of course is discourage. On this point of fact also elaborate discussion has been made and the finding of Appellate Court is not open to question. As regards the plea of adverse possession, it can hardly be said that the possession was adverse when it is asserted that faisla was duly held with one of the parties. However, all other ingredients of this point have also been considered by the two Courts below in the light of case law and evidence on record. Learned trial Court has not accepted the land Revenue Receipts as evidence of possession after assigning reasons therefor. Nevertheless, the oral testimoni,es of two independent witnesses on the point of possession of half share of defendants further damages the plea of adverse possession, set up by the plaintiffs/applicants. Conclusions have been drawn for valid reasons.
11. On the whole, the basic point of ownership of Allah Dino is the direct issue, which has gone against the plaintiffs and so also the point of faisla and plea of adverse possession. There is no misreading or non-reading of evidence nor miscarriage of justice. There is hardly any reason to interfere with the concurrent findings of the Courts below. The revisions are accordingly dismissed with no order as to costs.