1. JUDGMENT IMAM BUX BALOCH, J.---Through this civil revision application, applicants Division Forest Officer, Larkana and others have assailed the judgment dated 30-4-1995 and decree dated 3-5- 1995, passed by the learned III-Senior Civil Judge, Larkana in F.C. Suit No.55 of 1989, and judgment and decree dated 4-10-1998 and 7-11-1998 respectively passed by the learned V-Additional District Judge, Larkana in Civil Appeal No.24 of 1995, whereby suit of respondents/plaintiffs had been decreed.
2. The respondents/plaintiffs filed suit for declaration and perpetual injunction stating therein that agricultural land bearing survey No.199 (3-1 acres) and survey No.234 (15-19 acres), situated in Deh Khairo Jhatial, Taluka Dokri, originally belonged to Rahim Bux son of Muhammad Raban Brohi and the said land was ancestral property of Rahim Bux vide Entry No. 196 of Deh Form VII. It is further case of the respondents/plaintiffs that said Rahim Bux had died 23 years back leaving the respondents Ghous Bux, Moula Bux and Hazoor Bux as his sons, who inherited the land and such foti khata was mutated in their names vide Entry No.243 of Dakhal Kharij Register. It is further case of the respondents/plaintiffs that Moula Bux and Hazoor Bux have sold out their share 67-1/2 paisa to Mst. Raj Bibi on 22-10-1987 through a registered sale-deed and such mutation was recorded in her name vide Entry No.686 in Deb Form VII and the possession was delivered to Mst. Raj Bibi and Ghous Bux became owner of 33-1/2 paisa according to his share and since then they are in cultivating possession of the suit land. The respondents/plaintiffs further asserted that the applicants department was in fill knowledge about the possession and enjoyment of the suit land, but they never objected to it, nor they ever disputed, their title over it. A week before the filing of suit the applicants/defendant department claimed that the land belongs to Forest Department (applicants) and issued threats of forcible dispossession. In the above circumstances, the respondents/ plaintiffs filed suit in the trial Court.
3. The applicants/defendants department filed their written statement, in which they denied the assertions of the respondents/ plaintiffs and it was asserted by the applicants/Forest Department that as per Bombay Govt. Gazette Notification dated 26-4-1887 vide No . 2551, Forest Department is in possession of the disputed land and mutation is in the name of Forest Department. The applicants/defendants department totally denied the possession and mutation in the name of ancestors of the respondents/plaintiffs.
4. During the trial, following six issues were framed by the learned trial Court:--
(1) Whether the plaintiffs are owners of suit land as alleged in the plaint or it is property of Forest Department?
(2) Whether the plaintiffs are in possession and enjoyment of the suit land?
(3) Whether the cause of action has arisen to the plaintiffs?
(4) Whether the right or title, if any, of the Forest Department in the suit land, is extinguished by adverse possession of the plaintiff and their predecessor-in-interest late Rahim Bux?
(5) Whether the plaintiffs are entitled to the relief sought by them?
5. After adducing the evidence, the learned trial Court decreed the suit of the respondents/plaintiffs.
6. An appeal bearing Civil Appeal No.24 of 1995 was filed by the applicants/defendants department in the Court of learned District Judge, Larkana which was subsequently entrusted to the Court, of learned IV-Addition District Judge, Larkana, who vide his judgment and decree upheld the findings of the learned trial Court. The applicants/defendants department assailed both the judgments and decrees of the two Courts below through the instant civil revision application.
7. I have heard Mr. Abdul Hamid Bhurgri, learned Additional A.-G. On behalf of applicants and Mr. Gulab R.I C. Jessrani on behalf of respondents.
8. Learned Addl. A.-G., at the very outset argued that the suit was filed wrongly as the Province of Sindh shown as defendant No.4 was sued through Deputy Commissioner, Larkana, which is against the canons of section 79, C.P.C. And Article 174 of the Constitution-of Islamic Republic of Pakistan, as the Province of Sindh is to be sued through its Secretary and not through the Deputy Commissioner of the District. Learned Addl. A.-G., further argued that during trial the respondents/plaintiffs had not examined themselves, but attorney was examined, who was not aware about the facts of the suit. The learned A.A.-G. Further contended that only on one ground that the Province of Sindh was not sued through proper forum, the very suit is not maintainable. He has relied upon the case of Haji Abdul Aziz v. Government of Baluchistan through Deputy Commissioner Khuzdar (1990 SCMR 16). He further argued that this Court has got jurisdiction under section 115, C.P.C. To revise the concurrent findings of facts of two courts below. To strengthen his arguments, learned Addl. A.-G. Has relied upon the case of Ghulam Muhammad v. Ghulam Ali (2001 SCM R 1001) and case of Khalil Ahmad v. Abdul Jabbar Khan (2005 SCM R 911). Learned Addl.
9. A.-G. Lastly relied upon an unreported order passed by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Warts and others v. Chief Conservator of Forest Sindh and others, in Civil Petition No. 172-K of 2006 and argued that the photocopy of Gazette Notification of Bombay Government of 1837 was considered by the Hon'ble Supreme Court in the same facts and circumstances.
10. Mr. Gulab R.I C. Jessrani, learned counsel for the respondents, argued that at the very stage when the process of the suit served upon the applicants/defendants, they had not objected about the maintainability of the suit. He has relied upon Order 27, Rule 4, C.P.C. He further argued that in the trial Court only D.F.O. Was examined, who produced photocopy of Gazette Notification of 1887, which is secondary evidence and the learned trial Court so also the learned appellate Court rightly not considered the same. He further argued that the two Courts below had given their concurrent findings of facts after appreciating the evidence, material and documents produced during trial and this Court has got no jurisdiction to interfere with the findings of facts of two Courts below under its revisional jurisdiction. He has relied upon the cases of K.M. Muneer v. Mirza Rashid Ahmed (PLD 1964 (W.P) Karachi 172, Badsha Meah v. Muhammad Serajul Islam (PLD 1964 Dacca 300), Abdul Hakeem. v. Habibullah (1997 SCM R 1139), Habib Khan v. Mst. Hafiza Bibi (1987 SCM R 1149), Muhammad Bux v. Muhammad Ali (1984 SCM R 504) and case of Khan Muhammad v. Muhammad Ishaque (1975 SCM R 471) and sum up his arguments that in revisional jurisdiction this Court cannot go through deep appreciation of evidence. He further argued that the applicants have not pointed out any non-reading or misreading of evidence by the two Courts below. Mr. Jessrani further contended that the revisional jurisdiction of this Court is limited and this Court in exercise of revisional jurisdiction while examining legality of judgment in existence cannot upset findings of facts. Only this Court can interfere under section 115, C.P.C. If Courts below had either misread the evidence on record 01 while assessing or evaluating the evidence had omitted from consideration some important piece of evidence, which had direct bearing on issue involved in the case. Learned counsel strongly supported the findings of facts of the two Courts below.
11. I have considered the submissions of the learned counsel advanced at the bar.
12. Section 79, CPC reads as under:-- "79. Suits by or against the Government. In a suit by or against the Government the authority to be named as plaintiff or defendant, as the case may be, shall be
(a) in the case of a suit by or against the Federal Government, Pakistan;
(b) in the case of a suit by against a Provincial Government, the province."
13. Perusal of section 79, C.P.C. Clearly indicates that the Province to be sued, likewise Article 174 of the Constitution of Islamic Republic of Pakistan provides that province is to be sued by name of the province. In the present case the Province of Sindh was sued, through Deputy Commissioner, Larkana. This fact was not considered by the two Courts below that Province of Sindh is to be sued through Secretary of the defendant department. In the case of Haji Abdul Aziz (supra) the Hon'ble Supreme Court observed as under:- "the plaintiff had failed to comply with the provisions of section 79, C.P.C. Or Article 174 of the Constitution, both of which require that in a suit filed against the Government, the authority to be named as a defendant is to be the Province. Since the suit was filed in the present case against the Provincial Government, the Province could be sued through the concerned Secretary to the Government. Obviously, there had been no compliance with the said provisions when the suit was initially filed, by the appellant.
14. Unless the suit is filed through a proper person, any order directing ex parte proceedings against the defendant would be liable to challenge."
15. The Hon'ble Supreme Court dismissed the appeal of Abdul Aziz on the ground that he had sued Government of Baluchistan through Deputy Commissioner, Khuzdar, which was failure on his part to comply with the provisions of section 79, C.P.C. Or Article 174 of the Constitution. In the instant case the Province of Sindh was sued through Deputy Commissioner, Larkana, which is against the letter and spirit of section 79, C.P.C. And Article 174 of the Constitution. Only on the above fact the suit of the respondents/plaintiffs is not maintainable as observed by the Hon'ble Supreme Court in the case of Abdul Aziz (supra). The learned Counsel for the respondents emphasized his arguments on the point that in revisional jurisdiction this Court has no jurisdiction to reverse the findings of facts of two Courts below and the case-law relied upon by the learned counsel for the respondents are not helpful.
16. In the case of Ghulam Muhammad (supra) a full Bench of Hon'ble Supreme Court observed as under:-- "It is settled principle of law that no sanctity can be attached with the concurrent finding of fact if it is found suffering from the defect of misreading and non-reading of evidence and there is no impediment for the High Court to correct such an error and illegality in the revisional jurisdiction."
17. I have examined the judgments and decrees of both the Courts below. The respondents/plaintiffs have examined Abdul Karim as their general attorney and he has produced only `Dhall receipts in his evidence paid by the respondents/plaintiffs and entry of Revenue Record No.704 and secondly defendant Hazoor Bux was examined, who has not produced any document in his evidence. The applicants defendants department had examined Abdul Kholiq, R. F. O. Dokri, who produced Gazette Notification of Bombay Government to show that the land belongs to Forest Department.
18. Both the Courts below have not considered the genuineness of Gazette Notification of Bombay Government. In unreported case of Muhammad Waris (supra) the Hon'ble Supreme Court has observed as under:-- "Be that as it may, the fact remains that the petitioners have not been able to displace the authenticity of the notification published in the Government of Bombay Gazette in 1887, it is a photocopy of the original Gazette we placed before the Court. Obviously the 1878 Act was in force when the notification was issued. Learned counsel was unable to the Governor with or without consideration. Moreover, entries in mutation record and evidence of possession is hardly of any value to the petitioners. Indeed they might have trespassed upon the state land but this fact does not confer title upon them. No important question of law appears to be involved and we are, therefore, not inclined to grant leave. The petition is accordingly dismissed."
19. The learned appellate Court has also not famed any points for deciding the appeal, therefore, the learned appellate Court has violated the mandatory provisions of Order 41, Rule, 31, C.P.C. Rule 31 of Order 41 reads as under :- "31. Contents, date and signature of judgment.---The judgment of the appellate Court shall be in writing and shall state--
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
20. The appellate Court has not complied with the mandatory provisions of Order 41, Rule 31, C.P.C., as the learned appellate Court has not determined the points for discussion. Learned appellate Court only relied upon the judgment and decree passed by the learned trial Court. In the case of Gul Rehman's v. Gul Nawaz Khan. (2009 SCM R 589), the Hon'ble Supreme Court has been pleased to observe as under:-- "(8) Regarding duties of the Appellate Court, specially the first Appellate Court, learned Narayan, J, in paragraph 22 of the judgment in case of Sailajananda Pandey and another (supra) has clearly stated that "it has been repeatedly pointed out that the legislature has entrusted a very important duty to the first appellate Court. It is for that Court to decide finally all questions of fact on which the disposal of the suit might depend and the Appellate Court should not easily agree with the trial Court simply because it was not inclined to take much trouble over the case. If the lower Appellate Court does not examine the facts and the evidence for itself and does not even mention the points which the case raises, it will be certainly falling in its duty."
21. In the case of Muhammad Aslam v. Surkharu Khan (2007 CLC 750) a learned Single Bench of Lahore High Cc in while discussing the ingredients of Rule 31 of Order 41 observed as under:-- "it is mandatory requirement of law that judgment should state (a) points for determination (b) decision thereon and (c) reasons for decision. The requirement of Rule 31, C.P.C. In letter and spirit is that the Court records the points of determination and thereafter proceed to deal with these points and decide them with illuminative, rationale and sound reasons, therefore, the Court is required to appraise and decipher the evidence tendered by the parties (oral and documentary), if the parameters set in Rule 31," C.P.C. Are not adhered the judgment is not in consonance with law."
22. After considering all the aspects of the case and material available on record and fact that the Province of Sindh was not sued through proper forum, and the law laid down by the Hon'ble Supreme Court, I have come to the conclusion that the respondents/plaintiffs have failed to establish their claim, as they have not examined any person from revenue department and the original revenue record had not been produced by the respondents/ plaintiffs during the course of evidence. On the other hand, the applicants have produced Gazette Notification of Bombay Government of 1887 in their evidence and the Hon'ble Supreme Court in the unreported case of Muhammad Waris (supra) held that there is nothing to show that the said notification was ever rescinded or recalled at any time, as such, the legal position would be that the land in question was never available for disposal or cultivation purposes by the Governor, which clearly shows that the Gazette Notification of 1887 is in existence uptill now. Considering all the circumstances and law laid down by the Hon'ble 'Supreme Court, I am of the considered view that the applicants have proved their ownership of the disputed land and the respondents have failed to establish their claim of ownership over the said land. For the foregoing reasons, this revision application is allowed, the judgments and decrees passed by the learned trial Court and the learned Appellate Court are set aside and the suit of the respondents is dismissed. However, the parties are left to bear their on costs.