Shortly narrated the facts, giving rise to the filing of the present civil revision are, that Umer Hayat and others, plaintiffs instituted suit on 2.6.1996, in the Court of Senior Civil Judge Nowshera, against Mian Azim and others, defendants; claiming a declaration to the effect that plaintiffs were owners in possession of suit land detailed in the plaint; that defendants had no concern with it and that the entries in the revenue record, wherein Abdur Rauf, predecessor-in-interest of the defendants, has been recorded in possession of suit land as `bila lagan bawaja qabza' are illegal, contrary to facts, inoperative on the rights of the plaintiffs and liable to correction. The plaintiffs also prayed for possession of suit land, in case, they were not found in possession of the same.
2. The suit was controverted by the defendants, by filing written statement. The defendants refuted the claim of the plaintiffs and also raised some preliminary objection including bar of limitation, estoppel, non-joinder of necessary parties and maintainability of the suit. Following issues were framed in the light of the pleadings of the parties:-
1. Whether the suit of the plaintiff is time barred?
2. Whether the plaintiffs are estopped from suing?
3. Whether the suit of the plaintiffs is liable to be dismissed, for non-joinder of parties?
4. Whether Defendant No, 3 is the wife of Asheab and Abdur Rauf?
5. Whether the plaintiffs are owners in possession of the suit property according to the fard jamabandi for the year 1990. If so, its effect?
6. Whether the plaintiffs are entitled to decree for declaration as prayed for?
Whether the plaintiffs are entitled to decree for possession in the alternative, as prayed for? & ,Relief.
3. At the conclusion of the trial, learned Civil Judge, Nowshera, seized of the matter, upon consideration of the material, oral as well as documentary, accepted the claim of the plaintiffs and decreed suit, vide judgment dated 5.4.1999. Feeling aggrieved thereby, an appeal was preferred thereagainst, which was accepted by judgment dated 8.11.2001, passed by learned Additional District Judge, Nowshera. The judgment and decree of the trial Court was set aside and suit was dismissed. Hence instant civil revision.
4. Arguing on behalf of the petitioners, Mr. Abdul Sattar Khan, Advocate, contended that the judgement and decree of learned appellate Court is illegal, against material available on record and in utter disregard of relevant provisions of law; that judgment and decree of learned trial Court was based on well founded reasoning and was the result of proper application of relevant law; that learned Appellate Court, while dismissing the suit of the petitioners on the ground 'of non-joinder of necessary parties, has committed a patent illegality; that provisions of Order XLI, Rule 20 read with Order 1, Rule 9 CPC esca cd the notice of learned Appellate Court; that the impugned judgment has been recorded contrary to the requirement of Order XLI, Rule 31 CPC and that learned Appellate Court has wrongly rested the burden of proof on the petitioners and on this score also violated the settled principle of law. In support of his submissions, learned counsel placed reliance on the following precedents: Shafaullah and 13 others vs. Saifur Rehman and 7 others (PLD 1991 Supreme Court 1106), Qutab-ud- Din vs. Gulza and 2 others (PLD 1991 Supreme Court 1109), Ghulam Haqani and another vs. Mst.
Zulekha and others (PLD 1953 Peshawar 53), Sahib Jan Khan vs. Muhammad Nawaz Khan and another (PLD 19053 Peshawar 68), Muhammad Nazeef and others vs. Mst. Mumtaz Begum (2002 CLC 1517) Nasrullah Jan vs. Mst. Farzana Begum and 6 others (2002 CLC 1523) and Mian Hayatullah vs. Mst. Shama Sahar and another (PLD 1983 Peshawar 202).
5. Mr. Mir Adam Khan, Advocate, for the respondents, in reply, fully supported the impugned judgment and decree of the Appellate Court, maintaining the same is based on proper appreciation of evidence and application of relevant law and, as such, is not amenable to the revisional jurisdiction of this Court. To augument the contentions, he placed reliance on the following reported judgments:- Khalique Ahmed vs. Abdul Ghani and another (PLD 1973 Supreme Court 214), Noor Muhammad Khan vs. Haji Muhammad Ali Khan and 24 others (PLD 1973 Supreme Court 21), Ahmed Miaji and others vs. Eakub Ali Munshi and others (PLD 1961 Dacca 25) and Muhammad Nawaz and others vs. Sh. Abdul Latif and anothei- (PLD 19071 SCMR 198).
6. I have heard, in detail, the arguments of learned counsel for the parties in the light of the material on the file and the case cited at the bar.
7. The dispute relates to land bearing Khasra Nos, 375 and 376, measuring 6 kanals 2 marlas, situated in the area of Pabbi, Tehsil and District Nowshera. It is averred in the plaint that the entries in the revenue record, wherein late Abdur Rauf, predecessor-in-interest of the defendants, has been recorded in possession of suit land as `bila lagan bawaja qabza', are illegal, contrary to fact, ineffective on the rights of plaintiffs and liable to rectification. Both the parties have produced evidence in support of their respective stances. After closure of evidence, Patwari Halqa was examined as Court witness, who exhibited certain revenue record (Annexure K-1 to K-27) on the file.
8. Upon the examination of the impugned judgment, I find that the learned Appellate Court adverted to every aspect and rightly decided issues agitated and rendered a reasoned judgment, which is not open to legitimate exception. Learned counsel for the petitioners has not been able to prove that the impugned judgment is the of come of mis-reading and non-reading of evidence or suffers from illegality or material irregularity. The Court has given exhaustive judgment after due appraisal of evidence on the file and after discussing all the prones and cones of the case. There appears to be no legal defect in the judgment, which is in consonance with the evidence on the file.
Nothing could be pointed out effectively and convincingly which may persuade me to disagree with the findings of the Court below on the issues in question. The learned appellate Judge has scanned the entire evidence in true perspective and his findings cannot be termed either perverse or arbitrary. The same are immune from further scrutiny in a petition under Section 115 CPC.
9. Rule 41 Order 20 CPC is applicable only where the proposed respondent was a party to the suit from whose decree the appeal has been preferred. This rule is applicable not only to cases where the Court discovers the defect, but also to cases where the appellate desires the addition of a respondent. It is for the appellant alone to determine the respondents against whom he wishes to prosecute his appeal. The power to add parties can only be exercised at the hearing. This rules gives the Appellate Court discretionary powers in the matter of adding respondents. Powers given under this rule can be exercised suo moto or on application. Persons who were not parties to the suit can however be added as respondents in exercise of powers under Section 151 CPC. The principles of Order 1 Rule 9 CPC are also applicable ,to appeals and where the" non-joinder is not of necessary parties, the appeal will continue but the non-joinder of a necessary party can be fatal. A person can be added as a respondent in an appeal even though in the suit he was on the same side as the appellant. The term interested in the result of the appeal has reference to whether the proposed party is one whose interests are likely to be prejudiced by the determination in the appeal and not as to whether his presence is necessary for the adequate disposal of the appeal.
10.The joinder of any person as a party to the suit contrary to the provision of the Code is mis- joinder and Rule 10 empowers a Court to remedy such defeat. The non-joinder or mis-joinder of parties will not by itself, defeat a suit and the Court shall deal with the matter in so far as regards the parties actually before it, and shall dispose of the suit provided it can be effectively disposed of between the parties on record. Objection to mis-joinder or non-joinder of parties should be taken at the earliest possible opportunity. Mis-joinder by itself is not fatal nor is non-joinder per se fatal.
Though non-joinder is not fatal yet where there is non-joinder of a necessary party i,e, a party who ought to have been joined and in whose absence an effective decree cannot be passed the suit will ultimately fail unless such necessary parties are made parties to the suit. The Court cannot decide the suit in the absence of necessary parties. The submission of the learned counsel that provisions of Order 41, Rule 20 and Order 1 Rule 9 CPC have escaped notice of the Appellate Court, has failed to impress me.
11. Adverting to the objection regarding non-compliance of provisions of Order XLI Rule 31 CPC, it needs no emphasis that an appellate judgment should state the points arising for determination, its decision thereon and the reasons for its decision. It is necessary for the Appellate Court to record the points for determination, so that it can be determined whether the Court has deal with all the points. The Appellate Court must state its reasons for the decision. The provisions of Order XLI Rule 31 CPC are mandatory. In the instant case, the impugned judgment has been recorded in consonance with the requirements of Order XLI Rule 31 CPC and no prejudice seems to have been caused to the petitioner.
In the result and for the forgoing reasons, finding no substance in this civil revision, I dismiss the same with no order as to costs.