' MUHAMMAD NOOR MESKANZAI, J.---Through this judgment, I propose to dispose of the instant petition filed by the petitioner against the judgment and decree dated 25th April, 2007 passed by Majlis-e-Shoora, Turbat, whereby the appeal filed by the respondents against the judgment and decree dated 29th November, 2006 passed by Qazi, Pasni was accepted.
2. Facts in nutshell are that the petitioner filed a Suit bearing No. 70 of 2005 on 14th April, 2005 before the learned Qazi, Pasni. It was the case of petitioner that he and the respondents are the descendents of late Mehrab son of Mehmood, who was the grandfather of the parties. The grandfather left certain properties, in Mouza Shenzani Tehsil Pasni, which is joint among the parties.
Boundaries whereof have been given in the plaint. The petitioner claimed his legal share according to Islamic law.
3. The suit was contested by respondents by way of filing written statement. The respondents while filing written statement disputed the boundaries of the property, and also raised objection upon maintainability of the suit on the ground of misjoinder of necessary parties. The suit was claimed to be barred by time, however the relationship between the parties was not denied but claim was refuted on the ground that the mother of petitioner was treated during the course of illness and the mother of petitioner has waived her right in the property through a document dated 9th July, 1974.
4. Out of the pleadings of the parties, the learned trial Court framed four issues. Whereafter the petitioner produced P.W.1 Sharaf, P.W.2 Habib and got recorded his own statement. Whereas in rebuttal, the respondents produced DW-1 Dad Bakhsh, DW-2 Haji Qadir Bakhsh, DW-3 Khuda-eDad, besides recorded their statements through attorney.. The learned trial Court after observing the codal formalities decreed the suit vide judgment and decree dated 29th November, 2006. The respondents feeling dissatisfied with the said judgment and decree passed by learned Qazi, Pasni preferred Appeal bearing No.29 of 2007 on 26th February, 2007. The learned appellate Court after hearing the parties accepted the appeal, set aside the judgment and dismissed the suit vide judgment and decree dated 25th April, 2007, hence this petition.
5. I have heard Mr. Shams-urRehman Rind, Advocate for petitioner on 6th April, 2012, whereas on the said date Mr. Rehmatullah Barech, learned counsel for the respondents could not be heard due to his absence, hence case was adjourned and on 18th May, 2012 the learned counsel for the respondents appeared and advanced his arguments.
' The learned counsel for the petitioner submitted that the petitioner has proved his case by producing tangible evidence. The relationship between the parties has not been disputed.
Moreover, the ownership of the property in question by the grandfather of both the parties is established. Under such circumstances, the petitioner is entitled for `SharT share in the property.
The trial Court after attending all the aspects of the case and evaluating the evidence in its true perspective has rightly decreed the suit. The appellate Court set aside the decree on flimsy grounds. It was maintained that the appellate Court has badly failed to observe the mandatory provisions of Order XLI Rule 31, C.P.C.
' On the other hand, the learned counsel for the respondents argued that the judgment passed by the trial Court was not in conformity with the law. The petitioner has failed to prove his case, therefore, the appellate Court has rightly accepted the appeal. Upon a query, as to whether the appellate Court has complied with the mandatory provisions of Order XLI, Rule 31, C.P.C., he felt difficulty in satisfying the Court, however, submitted that since substantial notice has been done, therefore, the judgment passed by appellate Court is liable to be maintained.
5. I have carefully considered the contentions put forth by the parties learned counsel and gone through the record of the case minutely. The appellate Court has reversed the findings of the trial Court and dismissed the suit, which was decreed by the trial Court. I am feeling no hesitation in holding that the appellate Court entirely failed to adhere to the mandatory provisions of Order XLI Rule 31, C.P.C. Particularly, in a case where a decree is reversed, the appellate Court is bound to reappraise the evidence with reference to the issues by forwarding cogent reasons in support of its findings. The judgment impugned herein is absolutely lacking the prerequisites of Order XLI Rule 31, C.P.C. It is painfully noted that the appellate Court reversed findings by short order, which cannot be termed a judgment. For the sake of convenience, the impugned judgment is reproduced as under:- {{URDU TEXT}} ' The perusal of the impugned judgment leaves no room for doubt that the same is contrary to law and in flagrant violation of the mandatory provisions of Order XLI Rule 31, C.P.C. And, therefore, is not sustainable. By holding the view, I am supported with the dictum laid down in the judgment reported in PLD (1998, Quetta page 34 (Jan Muhammad V.. Mulla Abdul Rehman and 4 others relevant at page 36), wherein it has been held as under:-- "The Majlis-e-Shoora, as is evident from the impugned judgment did not consider the evidence on record nor recoded any reason or finding based upon evidence in the case, inasmuch as; it did not apply its mind to the facts of the case. Without dilating upon the. Other contentions raised: before this Court, by no stretch of arguments, the impugned judgment can be termed as 'judgment' within the meaning of Order XLI, Rule 31 C.P.C.
' Appellate Court is under legal obligation to decide each of the point involved in the matter to which it is seized of, must to state its reasons for the decision arrived at and at least substantial compliance with the requirements of Rule 31 of Order XL1, C. P. C. Is mandatory so that it should be evident from judgment that Appellate Court applied its mind consciously to the matters involved in the case; which enabled Court to pronounce the judgment.
' The bare perusal of the judgment indicates that the Appellate Court did not take into consideration the evidence on record nor did it record any reason for the decision pronounced by it, thereby rendering the impugned judgment and decree as unsustainable in law; consequently, the impugned judgment and decree dated 26-3-1997 passed by Majlis-eShoora, Kalat Division at Mastung is set aside, with the directions to re-write judgment in Civil Appeal No. 103 of 1996 in accordance with law, after affording opportunity of hearing to the parties,"
' In the light of above discussion, the petition is accepted, the judgment and decree passed by the appellate Court i.e. Majlis-e-Shoora, Mekran at Turbat dated 25th April, 2007 are hereby set aside and the case is remanded back to the appellate Court with the 'direction to re-write the judgment after hearing the parties by strictly adhering to the mandatory provisions of Order XLI, Rule 31, C.P.C.