MIAN HAMID FAROOQ, J.--Maryan Bibi, etc. The petitioners/ defendants, through the filing of the present revision petition, have called in question judgment and decree dated 25-1-1994, whereby the learned District Judge dismissed their appeal and maintained the judgment and decree dated 9-5-1991, passed by the learned trial Court, through which it decreed the suit for declaration with permanent injunction, filed by the respondents.
2. Ali Muhammad etc., the respondents Nos.1 to 4, claiming to be the owners in possession of the disputed property, filed a suit for declaration and permanent injunction, against the petitioners, inter alia, asserting that the predecessor-in-interest of the said respondents got possession of the property as mortgagee from the predecessor-ininterest of the petitioners. It was further pleaded by them that on account of failure of the petitioners to redeem questioned property within time, they have become the owners in possession of the said property and that the petitioners in collusion with the revenue staff got deleted the names of the respondents from column of mortgagees in possession and succeeded incorporating their own names as tenant at will. The petitioners resisted the suit, thereby controverting the allegations made in the plaint and further agitating that the respondents got the property in dispute redeemed in favour of the petitioners by their free-will.
The learned trial Court framed as many as seven issues, recorded the evidence of the parties and proceeded to decree the suit, vide judgment and decree dated 9-5-1991. The petitioner's appeal was dismissed by the learned District Judge, vide judgment and decree dated 25-1-1994, hence the present revision petition.
3. Learned counsel for the petitioners, while relying upon Ghulam Sarsar Khan and 5 others v. Mst.
Goher Sultan and 14 others PLD 1992 SC 225 has contended that as section 28 of the Limitation Act has been declared repugnant to the Injunctions of Islam, therefore, the right of a mortgagor, upon the expiry of a period of 60 years, would not extinguish and therefore, both the Courts have erred in law while decreeing the suit for declaration and permanent injunction, filed by the respondents.
Conversely, the learned, counsel for the contesting respondents has referred Ismail and 22 others v.
Rehmat Ali and 15 others 1993 SCM R 92 to contend that if a property, having been mortgaged with possession, had not been redeemed for 60 years, in that case, mortgagor looses his right to redeem the same.
4. Upon the examination of the available record, I find that both the parties led oral as well as documentary evidence, which was although discussed and adverted to by the learned trial Court, yet the learned appellate Court, while rendering the impugned judgment, comprehensively failed to take into account the evidence produced by the parties. The learned appellate Court did not discuss even the single document/witness, produced by the parties. Needless to observe that the learned appellate Court was under a legal obligation to take into consideration the evidence, both oral as well documentary, produced by the respective parties and then to have rendered its findings. It appears from the tenor of the judgment as if the parties did not produce any evidence. It is evident from the judgment, passed by the learned first appellate Court, that it omitted to read/consider oral as well as documentary evidence, produced by the parties, while giving findings on the controversies involved between the parties. Even the exhibited documents were not taken into consideration. It flows therefrom that the impugned judgment passed by the learned District Judge suffers from non-reading of documentary as well as oral evidence, thus, I am of the considered view that the first appellate Court has acted illegally and with material irregularity in exercise of its jurisdiction conferred upon it under the law.
5. It is settled law that if material document or material evidence is not considered by the lower Courts, this Court, in exercise of its revisional jurisdiction, can interfere in the matter. If any case-law is needed judgments reported as Shaukat Nawaz v. Mansab Dad and another 1988 SCM R 851 and Sahib Khan through Legal Heirs v. Muhammad Pannah PLD 1994 SC 162 can be referred.
6. In the above backdrop, I am of the considered view that the judgment rendered by the learned first appellate Court is exceptionable, against the established law and definitely calls for interference by this Court, thus, I am inclined to exercise revisional jurisdiction of this Court and to remand the case to the learned appellate Court for the decision of the appeal, afresh.
7. It may be noted here that upon filing an application (C.M. No.1 of 2001) by the respondents Nos.1 and 2, this Court on 15-10-2001 accepted the same and the present revision petition was allowed to the extent of respondents Nos.1 and 2 and now the revision petition is being contested by respondent No.3, only.
8. Upshot of the above discussion is that the present revision petition is allowed and the impugned judgment and decree dated 25-1-1994, passed by the learned District Judge, is set aside with no order as to costs. The result would be that the appeal, filed by the petitioners, titled "Maryan Bibi etc. v. Ali Muhammad etc." shall be deemed to be pending against respondent No.3 only, before the learned District Judge, Hafizabad, who shall himself decide the appeal, afresh, after hearing the parties and duly taking into consideration the documentary and oral evidence, produced by the parties. Needless to observe that the parties are at liberty to raise the legal and factual pleas, available to them under the law, before the learned District Judge. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.