' MUHAMMAD ATHER SAEED, J.---This civil revision application has been filed against the order passed by learned IInd Additional District Judge, Ghotki on 16-1-2001 whereby the appeal of the present respondents against the order of the Civil Judge, Mirpur Mathelo dated 4-9-2000 was allowed the order of the Civil Judge was set aside and the suit was decreed as prayed.
2. I have heard Mr. Mukesh Kumar Karara, the learned counsel for the applicants and Mr. Parya Ram Vaswa ni, the learned counsel for the respondents.
3. The learned counsel for the applicants has read out the order of the appellate Court and has submitted that the order is sketchy and a non-speaking order and against the provisions of Order XLI, Rule 31, C.P.C., which provides that the appellate Court will formulate the points for determination and will give finding on such points, which have not been followed and therefore, this order cannot be sustained and has to be remanded back to the appellate Court to follow the procedure prescribed under Order XLI, Rule 31, C.P.C. In this connection he relied on a judgment of honourable Supreme Court in the case of Iftikharuddin v Central Bank of India limited reported in 1996 SCMR 669, 2000 CLC 1838 and also the order of learned Single Bench of this Court reported in the case of Juma Khan v Musammat Shamim and others reported in 1992 CLC 1022. The learned counsel then submitted that the civil suit cannot be filed against the adverse possession of the co- sharer by the other co-sharer. He submitted that if as alleged a co- sharer had usurped the possession of another co-sharer then the reliefs which could have been sought by the co-sharer, whose share has been usurped will be (i) to file a suit under section 9 of the Specific Relief Act, (ii) to seek partition of the property and separate possession and (iii) claim mesne profit.
4. He submitted that it is alleged that present respondents were dispossessed in the year 1991 and the suit was filed in January, 1996 whereas Article 109 of Chapter-VI of Limitation Act provides that mesne profit can only be claimed for 3 years and therefore according to the learned counsel the suit was not only time-barred but was also not maintainable on the basis of above point. He further submitted that the orders of both the Courts below are defective because basically it was the word of the defendants that he is only utilizing his share against the word of the plaintiffs that he has dispossessed him from his share and therefore the Courts below should have appointed a Commissioner to examine the aspect of their possession and report as to how much .Of the portion of the property is in possession of each party. He further submitted that the Khasra Girdwari produced by the plaintiffs which has been treated as prime document providing the base to the claim of party does not establish the title of the present defendants and the learned appellate Court was not justified in basing its judgment on this one document only. He therefore prayed that the civil revision may be allowed and the case may be remanded back to the appellate Court for passing an order after completing the exercise of appointing the Commissioner to determine the possession of the parties in the disputed property and after following the procedure prescribed under Order XLI, Rule 31, C.P.C.
5. The learned counsel for the respondents drew my attention to the previous plaint of the suit filed by him in the trial Court and the written statement filed by the present applicants before the learned trial Court. He submitted that in the first paragraph of the plaint he had claimed that he was the owner of 94% share in one survey number and 73% share in another survey number whereas the present applicants were owners of 6% share in the first survey number and 27 % share in the second survey number and the total area of the share of the property of the present applicants comes to 0-14 ghuntas in all but in their written statement they had admitted that they were in cultivating possession of 44 ghuntas i,e, 1-04 acre and this shows that they have admitted that they have dispossessed the present defendants and the appellate Court had correctly set aside the order of the learned trial Court and decreed the suit in his favour. Rebutting the arguments of the learned counsel for the applicants that the appellate Court is bound to formulate the point for determination under Order XLI, Rule 3, C.P.C. He relied on the judgment of the single Judge of the Peshawar High Court reported as Naimatullah Khan v. Hameedullah 2006 CLC 125 wherein the learned Judge had observed that Order XX, Rule 5, C.P.C. Is only applicable to the proceedings before the trial Court and not before the appellate Court. The learned counsel then drew my attention to the deposition of the respondents available on page 55 of the file in which the present applicants had admitted that the suit property had also been partitioned and therefore they could not have applied for partition of the property. He submitted that the suit was not time- barred as the suit against adverse possession could have been filed under section 28 of the Limitation Act within 12 years and further submitted that the Shariat Appellate Bench of the honourable Supreme Court has held that sections 28 and 142 of the Limitation Act are against the injunctions of Islam and therefore these sections were deleted from the Limitation Act vide the amendment made in the year 1995. He submitted that as far the applicability of Article 109 of the Limitation Act is concerned, it only provides that whenever mesne profits are claimed they can be claimed for 3 years only but it does not mean that the suit has to be filed within .3 years as claimed by the learned counsel for the applicants. In this connection he relied on a judgment of this Court in the case of Canal Petroleum Service v Pakistan Burmah Shell PLD 1982 Karachi 121.
6. I have examined the case in the light of the arguments of the learned Counsel and have carefully perused the records of the case including the Impugned Order.
7. A perusal of the Impugned Appellate Order had led me to the conclusion that the learned Appellate Court has passed its entire decision on the validity of Khasra Girdawari produced by the plaintiffs/applicants in evidence and after reaching the conclusion that since this Khasra Girdawari had not been challenged in any manner by the present applicants before the trial Court, and it is a valid document and the learned trial Court has erred in rejecting the suit filed by the present respondents before it allowed the appeal and decided the suit. A further perusal of the impugned order reveals that the entire finding has been given in one page and that the provisions of Order XLI, Rule 31, C.P.C. Have not been followed in its letter and spirit as the appellate court had not framed the points for determination nor given findings on such points, although the learned trial Court, in accordance with the provisions of Order XXV, Rule 5, C.P.C., had framed the issues, given its findings on such Issues substantiated with reason which may or may not be valid and legal but in my opinion, cannot be disposed of in a summary manner and has to be disposed of by framing points for determination on the basis of the Order of the trial Court and the arguments of the learned counsel. It also appears that the counsel for the present applicants may not have been aware of the ground on the basis of which learned appellate court has allowed the Appeal and decreed the suit, and therefore, may not argue on that ground.
8. In the light of my above observation, I will now examine the Judgments relied on by the learned counsel.
9. The first Case relied on by the learned counsel for the applicants is the Judgment of the honourable Supreme Court in the Case of Syed Iftikhar-ud-Din Haider Gardezi and others v. Central Bank of India Limited reported in 1996 SCMR 669. In this Judgment, their lordships have held as under:- "This case is also hit by rule 31 as all the points which were argued and relied upon by the learned counsel for the appellants were not considered for their proper determination on the basis of available evidence. The Civil Courts had to decide the disputes issue-wise as far as it would be practicable in the given situation in each case. It is not the case of learned counsel for respondents that issues were abandoned with consent of learned counsel for the appellants. In case, learned counsel for the parties agrees that specified issues alone should be dealt with, then, of course, Courts need not enter into discussion on other issues for their decision. No such consent was, admittedly, obtained in this case when the appeal was decided. We would also hold that evidence of Saeed Ahmed D.W was not considered by the High Court for the just decision of the appeal.
' This being so, the appeal of the appellants shall be deemed to be still pending decision before the High Court."
10. In the Case of Juma Khan v. Shamim, reported in 1992 CLC 1022, Syed Haider Ali Pirzada, Judge of this Court, as he then was, while specifying the requirements of Judgment of the Appellate Court held as under:-- "The provisions of Order XLI, rule 31, of the Code of Civil Procedure are mandatory. The Judgment of the first appellate Court has to set out points for determination, record the decision thereon and give its own reasons for the said decision. The legislature has laid down these rules so that either the second appellate Court or the Revisional Court should be in position to find out the track traversed by the appellate Court. It cannot run away from its onerous duties of recording the finding of fact and/or discussion the evidence."
11. In the case of Muhammad Tufail v. Fauji Fertilizer Co. Ltd, reported in 2000 CLC 1838, a Single Judge of the Lahore High Court has held as under:-- "It is settled proposition of law that the appellate Court is rdquired to set out points for determination, records the decision thereon and give its own reasons for the decision in terms of order XLI, rule 31, C.P.C. As per rule laid down in the following Judgments:- ' Juma Khan's case 1992 CLC 1022, Bagh Ali's case 1992 CLC 1407, Syed Hassan Shah's case 1987 CLC 1281 and Syed Iftikhar-ud-Din Hyder Gardezi's case 1996 SCMR 669.
' In the present case the contentions of the parties with regard to these eight issues have been recorded in Paras 4 and 5 of the impugned Judgment by the first appellate Court but finding on each issue separately have not been given. Issue No, 3 was with regard to the maintainability of the suit while issue No, 4 was with regard to the cause of action. Likewise, issue No, 5 was also important issue settled by the trial Court, no finding at all is recorded on these issues as required under Order XLI, rule 31, C . P.0 . "
12. The gist of the above judgments is that the provisions of Order XLI, Rule 31, C.P.C. Are mandatory in nature and the Appellate Court cannot dispose of an Appeal without following the provisions of the above mentioned statute and framing points for determination.
13. The learned counsel for the respondents has relied on the Judgment or a Single Judge of Peshawar High Court in the case of Naimat Khan and others v. Hamzullah Khan and others, reported in 2006 CLC 125, wherein it has been held that the provisions of Order XX Rule 5, C.P.C. Are applicable to the original Court and the' requirements of recording finding issue-wise by the.
Appellate Court is not mandatory. It is sufficient for the Appellate Court to deal with all the issues as are material for disposal of the controversy excepting those abandoned by the appellant.
14. In my opinion, this Case is distinguishable because it has not dealt with Order XLI, Rule 31, C.P.C.
But has dealt with Order XX, Rule 5, C.P.C. There is no cavil to the proposition that Order XX, Rule C 5, C.P.C. Deals with framing of issues apply to trial Court only. Even otherwise, the condition provided in this Judgment is that the Appellate Court should deal with all the material issues and a perusal of the Impugned Order has led me to conclude that the Appellate Court has dealt with one issue only and not all issues which may be material to the adjudication of the dispute between the parties.
15. Both the learned counsel have argued on the merits of the case also but since I am of the opinion that the case has to be remanded back to the learned Appellate Court for passing an Order after framing points for determination in the light of Order of the trial Court and the arguments of the learned counsel and hearing the arguments on the points determined, therefore.
I will refrain from commenting on the merits of the case as it may prejudice the case of any of the parties before the Appellate Court.
16. Since I am of the considered opinion that the Impugned Order has been passed without fulfilling the requirements of Order XLI, Rule 31, C.P.C. Therefore. I set aside the impugned Appellate Order and remand the case to the Appellate Court with directions to pass a de novo Order after determining the points for determination in the Appeal in accordance with the provisions of Order XLI, Rule 31, C.P.C. And after giving both the parties opportunity to advance all arguments on these points, pass a fresh Order.
17. Since this matter has already consumed a lot of time, the Appellate Court is directed to complete the proceedings and pass a fresh Order within 4 months from the date the Order of this Court is conveyed to the Appellate Court.
18. I am of the opinion that it will also be in the interest of justice that till the passing of the Appellate Order, the operation of the Judgment passed by the learned trial Court shall remain suspended and the parties to maintain status quo as of today.
19. This Appeal is disposed of in the above manner.