' MUHAMMAD AZAM KHAN, C.J.--- The captioned appeal by leave of the Court is addressed against the judgment and decree of the High Court dated 23rd October, 2007, whereby while accepting Civil Appeal No,228, the case has been remanded to the Additional District Judge Dudyal for fresh decision after hearing the parties.
2. Necessary facts for the disposal of appeal are that Muhammad Sharif and another filed a suit for possession in respect of land measuring 9 kanals, 6 marlas, situate in village Thara, Tehsil Dudyal, in the Court of Civil Judge Dudyal on 18th August, 2004, alleging therein that in the judgment of Supreme Court dated 6th April, 1998, the plaintiffs and pro forma-defendants were declared owners of the land. The defendants handed- over the possession of the land out of Court settlement. In the new settlement of land it has come in their knowledge that from the total land, the land measuring 9 kanals, 6 marlas, comprising old Survey Nos.2608, 2808-min, 2609, 2588, 2589, new Survey Nos.1153, 1154, 1155, 1158, is still in possession of defendants. After necessary proceedings, the trial Court dismissed the suit on 10th September, 2005. Feeling aggrieved, the plaintiffs filed an appeal in the Court of Additional District Judge Dudyal on 8th November, 2005, Which was also dismissed. Second appeal filed by the plaintiffs was accepted by the High Court and the case was remanded to the Additional District Judge for decision afresh.
3. Ch. Shah Wali, the learned counsel for the appellants, argued that the judgment of the High Court is not maintainable. It is against the law. The trial Court dismissed the suit of the plaintiffs on the ground of limitation and in absence of cause of action. He contended that the High Court has accepted the appeal on the ground that the Additional District Judge failed to record findings on each and every issue. He attacked the judgment of the High Court on the ground that it is not in accordance with the spirit of law. If the case can be decided on one issue, then there is no need to record the findings on each and every issue. Since the trial Court and the District Judge have reached the conclusion that the suit was time-barred, it was sufficient for deciding the whole case.
He referred to a case reported as Azad Government and another v. Mujahid Hussain Naqvi (2002 SCR 302).
4. While controverting the arguments, Raja Saadat Ali Kayani, the learned counsel for the respondents, argued that the judgment of the High Court is perfectly legal. Issue No,5 was crucial for the decision of the whole case. Had the learned Additional District Judge recorded finding on issue No,5, then there was no need to resolve the same. He argued that under law the District Judge has to record finding on each and every issue and if he fails to do the same, then the judgment is a nullity in the eye of law.
5. We have heard the learned counsel for the parties and perused the record. A perusal of record shows that the first round of litigation ended at the judgment of this Court on 6th April, 1998 and the respondents-plaintiffs were declared owners of the disputed land. In the light of judgment of Supreme Court the appellants-defendants handed over the possession of land to the plaintiffs for which they were entitled, but in fact they did not hand over possession of total land to them. At the time of new settlement, it came in their knowledge that Survey Nos.1153 to 1155 and 1158, measuring 9 kanals, 6 marlas are still in possession of defendants. The trial Court framed issues out of which Issues Nos.1, 2 and 5 are important. Issue No,1 relates to cause of action and issue No,2 relates to limitation. Issue No,5 is to the effect whether after the judgment of Supreme Court, the possession of remaining land has been handed over to the plaintiffs or not Issue No,6 is to the effect whether plaintiffs are entitled for possession of land or not. The trial Court recorded findings on issues Nos.1 and 2 that the plaintiffs have got no cause of action and the suit is time-barred. On issues Nos.5 and 6 the trial Court recorded findings while the first appellate Court has not recorded findings issue-wise. The first appellate Court recorded findings only on issue No, 1.
6. Order XLI, Rule 31, C.P.C. Deals with the contents'of judgment of first appellate Court. For proper appreciation it will be useful to reproduce the same:-- "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 therein;
(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;
(e) and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
' A perusal of Order XLI, Rule 31 C.P.C. Reveals that the phraseology used in the rule leaves no doubt that the provisions of rule are mandatory. The first appellate Court is also a Court of facts and it is enjoined upon the first appellate Court to decide each and every issue wafter discussing the evidence. Of course if decision of appeal is possible after recording the finding on one or more issues, then it is not necessary to record finding on all issues, but in the present case the Additional District Judge has not recorded findings issue-wise. He only resolved the question of limitation and another point that whether the suit was hit by Order II, Rule 2, C.P.C. Is not resolved. No issue was framed whether the suit is hit by Order II, Rule 2, C.P.C. The Additional District Judge delivered the judgment in a telegraphic manner without discussing the facts or evidence on record. It was enjoined upon the Additional District ' Judge to record findings on each and every issue when the decision on the basis of findings on one issue was not possible. Issues Nos.5 and 6 were crucial in the suit and without deciding these two issues, the appeal could not be decided.
7. We have also considered the case-law referred to by the counsel for the appellants titled Azad Government and another v. Mujahid Hussain Naqvi (2002 SCR 302), whereby this Court dismissed the appeal which was filed after the delay of one day. The rule of law laid down in the said case is correct. If a party fails to satisfactorily explain the delay of each and every day, then appeal has to be dismissed. In the instant case the decision is not possible only on the basis of Issues Nos.1 and 2.
Without resolving issues Nos.5 and 6 the decision of appeal was not possible. The cases cited by the learned counsel for the respondents titled Dr. Syed Ali Sajjad Bukhari and 6 others v. Sabir Ali Shah and 4 others (1987 CLC 229), Haji Abdul Jalil v. Anjuman Jame Masjid Haquani (1996 M LD 818) relate to the contents of judgment by the trial Court under Order XX, Rule 5 C.P.C. And not to Order XLI, Rule 31, C.P.C. The other authority cited by the counsel for the respondents (1997 CLC 1337) contains no case at page 1337.
8. The result of above discussion is that the High Court has correctly remanded the case to the Additional District Judge Dudyal for resolution of issues. Thus finding no force in this appeal it is hereby dismissed with no order as to costs.