Impugned herein is the judgment and decree dated 07.01.2010 of learned Additional District Judge- VI, Peshawar whereby appeal of the respondents against the judgment and decree dated 22.05.2009 of learned Civil Judge-X, Peshawar was allowed and the suit was decreed.
2. Precise facts of the case are that respondents/plaintiffs filed a suit for declaration and permanent injunction to the effect that the transfer and attestation of mutation from Petitioner No. 1/Defendant No. 1 in favour of Petitioner No. 2/Defendant No. 2 in respect of Khasra No. 489 to the extent of 12 kanals and 08 marlas, in Khasra No. 310 to the extent of 08 kanals and 07 marlas, in Khasra No. 525 to the extent of 48 kanals 06 marlas in the column of kasht through Tatimmas Khasra No. 489/1 to the extent of 04 kanals and 18 marlas, Khasra No. 310/1 to the extent of 03 kanals and 07 marlas in Khasra No. 525/1 to the extent of 07 kanals and 15 marlas through Mutation No. 857 attested on 10.03.1979. The respondents/plaintiffs and petitioners/Defendants No. 1 to 4 are joint owners of the property according to the jamabandi, 1971-72 and that Petitioner No. 1 is not entitled to make the transfer in favour of Petitioner No. 2 and the same being against law, incorrect and based on fraud, hence liable to be cancelled alongwith Tatimmas Khasrajat are also liable to be cancelled and in accordance with the shares of Petitioner No. 1 as dower in favour of Petitioner No. 2 in the ownership column. Similarly the revenue record in respect of shares of Petitioner No. 1/Defendant No. 1 is to be cancelled. Prayer for decree for declaration and permanent injunction was alk sought.
3. Petitioners/defendants were summoned, written statements were filed and from the divergent pleadings of the parties, as many as 10 issues were framed. Pro and contra evidence was recorded and the learned trial Court decided each and every issues separately while dismissing the suit of the respondents/plaintiffs vide judgment and decree dated 22.05.2009. Aggrieved of the same, respondents filed an appeal before the appellate forum and the learned Additional District Judge- VI, Peshawar vide impugned judgment and decree dated 07.01.2010, on acceptance of appeal, set aside the judgment and decree of the trial Court and decreed the suit of the respondents, hence this revision petition.
4. Learned counsel for the petitioner contended that judgment and decree of the appellate Court is illegal, against the material available on record hence the same is liable to be set aside; that the learned appellate Court failed to exercise its jurisdiction vested in it under the law, hence committed gross illegality; that the judgment and decree of the appellate Court is based on misreading and non-reading of evidence on record; that the learned appellate Court has not appraised the documentary as well as the oral evidence of the petitioners/defendants and ignored the same while giving its findings, hence the same findings are of no legal effect and the same are liable to be set aside; that the impugned judgment is in violation of Order-XLI Rule-31, CPC as the judgment is not issue wise nor has discussed the evidence on record, whereas the judgment of the trial Court is based on proper appraisal of evidence and decision issue wise; that Issues No. 1, 2, 4 to 9 were decided in negative by the trial Court but the appellate Court reversed the same without giving any reason and speaking order. In this respect, relied on 1996 SCM R 669, 2007 SCM R 554 (D), 2009 SCM R 589. It is also contended that where a co-sharer is in possession of a specific peace of joint land, within the limits of his share in the joint holding, he can sell such specific land. In this respect, relied on 2007 YLR 82 and PLD 1985 S.C. 254 (B).
5. As against this, learned counsel for the respondents contended that the judgment and decree of the appellate Court is well reasoned and based on available evidence on record as there was only one point before the appellate Court and there is no limitation against the co-sharer. In this respect, relied on 1990 CLC 1387, 2005 CLC 1538, 1983 SCM R 626.
6. Arguments heard and record perused.
7. Perusal of the impugned judgment of the appellate Court would reveals that the findings on as many as 10 issues are spread over just one page, without touching the merits of the case regarding the rights of the parties, it is observed that the judgment and decree of the trial Court is against the spirit of Order-XLI Rule-31, CPC which reads:
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.
8. The legislature has entrusted a very important duty to the appellate Court. It is for that Court to decide finally all question of facts on which the disposal of the suit might depend and the appellate Court should not easily agree with the trial Court simply because it not-inclined to make such trouble over the case. If the appellate Court itself does not examined the facts and the evidence and does not even mentioned the points which the case raises, it would be certainly failing in its duties, these are the words recorded by the Hon'ble Bench of the Supreme Court of Pakistan, reported in 2009 SCM R 589.
9. In the instant case, the judgment of the trial Court has been reversed by the appellate Court. The learned trial Court decided 10 issues in negative but the learned appellate Court without giving any reason or discussing the evidence, has reversed the findings and granted the decree. Not even a single line has been referred and discussed from the evidence. It was incumbent upon the appellate to have meet the reasoning of the trial Court. In the instant case, a bare perusal of the impugned judgment clearly reflect that it has not given due attention to the available evidence on record nor has discussed and dealt with each and every issue, separately. The judgment of the appellate Court in hand is not a judgment in its true sense. The appellate Court should have applied Order-XLI Rule-31, CPC in stricto senso as it has got ample powers under Order-XLI Rules-31 and 33, CPC. For convenience sake, Rule-33 of Order-XLI is reproduced below:--
33. Power of Court of appeal.--The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: Provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.
I am convinced that the appellate Court, which is ultimate Court of facts, has not done its legal duty. The learned appellate Court had to decide the dispute issue wise as far as it could 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 petitioners. In case, where the counsel for the parties agree that specified issues alone should be dealt with, then, of course, Courts need not enter into discussion of other issues for their decision. Since no such consent was admittedly, obtained in this case when the appeal was decided.
10. Consequently, while accepting the revision petition, I set aside the judgment and decree of the appellate Court dated 07.01.2010 and remit the case to the appellate Court i.e. Additional District Judge-VI, Peshawar, for writing fresh judgment in the light of available evidence, issue wise, after giving opportunity of hearing to the respective parties, with no order as to costs. The parties are directed to appear before the Court of Additional District Judge-VI, Peshawar on 30.06.2012. Order accordingly.