' MIAN HAMID FAROOQ, J.---Petitioners/defendants, through the filing of the present revision petition, have called in question judgment and decree, dated 20-5-2002, whereby the learned Additional District Judge accepted respondents' appeal and partly modified the judgment and decree, dated 8-2-2001, passed by the learned trial Court, through which it dismissed the suit for possession through pre-emption, filed by Mehra deceased.
2. Being aggrieved by the sale mutation No,310, sanctioned in favour of the petitioners and one Raj Meer, the predecessor-in-interest of the respondents Nos.9 to 18, for a total consideration of Rs,1,70,000; in respect of the land in dispute, Mehra deceased, the predecessor-ininterest of the respondents Nos.1 to 8, on 12-9-1996, filed a suit for possession through pre-emption pleadings therein that on coming to know about sale mutation, he made "Talab-i-Mawathibat", which was followed by the oral "Talab-i-Ishhad" succeeded by the notices executed on 24-6-1996 and posted on 27-6-1996. The suit was resisted by the petitioner and Raj Meer deceased through filing joint written statement, inter alia, controverting the contents of the plaint. The learned trial Court framed the necessary issues, recorded the evidence of the parties anultimately dismissed the suit, vide judgment and decree, dated 8-2-2001. Respondents Nos. 1 to 8, being successor in interest of the original plaintiff, namely Mehra, filed an appeal and their appeal was partly allowed by the learned Additional District Judge, who, vide impugned judgment and decree, dated 20-5-2002, decreed the suit of Mehra plaintiff to the extent of 17-Kanals 5-Marlas for a consideration of Rs,85,000, while the second half of the suit-land measuring 17 Kanals 5 Marlas was allowed to be retained by the legal heirs of Raj Meer, hence the present revision petition.
3. Respondents were proceeded ex parte, vide order, dated 5-12-2003.
4. Learned counsel for the petitioners, while supporting the judgment and decree of the learned trial Court, has submitted that the plaintiff could not prove that Talabs were properly performed by him. He has further submitted that the notices were produced in secondary evidence without fulfilling the requirements of Article 76 of Qanun-eShahadat.
5. In view of the arguments raised by the learned counsel, I have examined both the judgments and find that the learned trial Court dismissed the suit after giving cogent reasons and rendering his findings on all the issues, after taking into consideration the evidence on record. On the other hand, the impugned judgment appears to have been rendered without taking into consideration the evidence on record. Additionally, the learned appellate Court did not advert to the reasoning adopted and findings given by the learned trial Court. Under the law, it is incumbent upon the learned lower appellate Court that while giving judgment at variance, the reasoning adopted by the learned trial Court should be dealt with. Additionally, if find that the learned lower appellate Court has failed to take into account the material pieces of evidence while passing the impugned judgment. The Hon'ble apex Court of the Country in a case reported as Madan Gopal and 4 others v. Mardan Bepari and 3 others (PLD 1969 SC 617) while dealing with the similar proposition of law has held has under:- " If the findings of the first appellate Court cannot besupported on the evidence on record or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the findings of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal."
' The principle laid down in the case of Madan Gopal (Supra), was further approved by the apex Court in the case reported as Mir Haji Khan and 11 others v. Mir Aijaz Ali and 2 others (PLD 1981 SC 302).
6. In the above perspective, I am of the view that the learned appellate Court has committed illegality and material irregularity in passing the impugned judgment, thus, attracting the invocation of the revisional jurisdiction of this Court. The impugned judgment is not sustainable and I am inclined to set aside the said judgment and to remand the case to the lower appellate Court.
7. Upshot of the above discussion is that the present revisionpetition is allowed and the impugned judgment and decree, dated 20-5-2002 is set aside with no order as to costs. The result would be that the appeal titled "Fateh Sher etc. v. Raj Meer etc" shall be deemed to be pending before the learned first appellate Court, which shall decide the same, afresh, after hearing the parties and of course in accordance with law.