Muhammad Azam Khan, C.J.--Muhammad Ilyas and others filed a suit for possession on 1.12.1967 in respect of land bearing Survey No,399, measuring 27 kanal 8 marla situated in village Andrla Katehra, Tehsil Kotli along with a house against the present appellants and others on the ground that they are owners of the land. The defendants are their tenants. They have illegally got entries in the revenue record. After necessary proceedings the trial Court decreed the suit on 30.5.1992.
Dissatisfied from the judgment and decree of the trial Court the appellants filed an appeal in the Court of District Judge Kotli which was dismissed. Second appeal before the High Court also failed, hence this appeal by leave of the Court.
2. Ch. Muhammad Ilyas, advocate, counsel for the appellants, argued that the judgment of the High Court is against the law and not maintainable. He contended that the property was evacuee one and the civil Court had no jurisdiction to entertain the suit. The learned counsel submitted that the learned District Judge has not recorded the findings issue-wise. The judgment of the District Judge is vioaltive of the provisions of Order XLI, Rule 31, CPC. It is not a judgment in the eye of law.
The learned counsel further submitted that Said Begum, one of the defendants, died during pendency of the suit in the trial Court. Her legal heirs were not impleaded in the line of respondents.
The suit to her extent has abated. The High Court has not considered this aspect of the case.
3. While controverting the arguments of the counsel for the appellants, Ch. Muhammad Riaz Alam, advocate, counsel for the respondents, argued that the judgment of the High Court is perfectly legal. The moot point in the case was whether the plaintiffs are owners of the land or not. The trial Court after perusal of the evidence, oral as well as documentary, reached to the conclusion that the plaintiffs are owners of the land. The findings on one issue were sufficient for recording the judgment. Even if there is no finding on the other issues, it doesn't affect the judgment of the District Judge. The learned counsel further argued that two Courts below have recorded the concurrent findings of facts and the concurrently recorded findings cannot be interfered with in the second appeal by the High Court. There is no substance in the appeal, which merits dismissal.
4. We have heard the learned counsel for the parties and perused the record. The plaintiffs, respondents herein, filed a suit for possession on the ground that they are owners of the land and defendants are their tenants. After recording the evidence, the trial Court decreed the suit declaring that the plaintiffs are proved to be the owners of the land from oral as well as documentary evidence. The defendants, appellants herein, have taken the position that the civil Court has no jurisdiction as the property is evacuee one. Only the Custodian of Evacuee Property has jurisdiction to entertain the matter.
Issue No,2 was the moot issue in the whole case which was to the effect, "whether the disputed land is the ancestral property in the ownership of the plaintiffs." The trial Court after perusal of the record came to the conclusion that the land is in the ownership of the plaintiffs. The other relevant issue was of the jurisdiction. The order passed by the Custodian on 2.12.1976 was brought on the record of the trial Court, where the Custodian of Evacuee Property has declared that the property is not evacuee one. When the property is not evacuee, there is no question of allotment in favour of defendants, appellants herein. The findings recorded by the sub-Judge are based on evidence/record. We have perused the judgment of the District Judge. Although the District Judge has not recorded the findings issue-wise but he has considered the record, which was the part of the file of the sub-Judge and dismissed the appeal after considered the whole record. Here we may observe that under Order XLI, Rule 31 of the Civil Procedure Code, it is enjoined upon the appellate Court to state the points for determination, decision thereon, the reasons for the decision and where the decree appealed from is reversed, the relief to which the appellant is entitled. The recording of findings issue-wise is the requirement of the rules but where the Court comes to the conclusion that the appeal can be decided without recording findings on each and every issue and delivers the judgment after considered the record, then the judgment is valid one. The proposition was considered by this Court in the case reported as Allah Ditta & others vs. Muhammad Sharif & others [2012 SCR 60] wherein it was observed as under:-- "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 after discussing the evidence. Of course if decision of appeal is possible after recording the finding on one issue 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 couldn't be decided."
5. The District Judge has recorded the findings after considering the whole record. Only two issues i,e, issue of ownership and jurisdiction, were relevant. The question of jurisdiction has already been resolved by the Custodian of Evacuee Property in its order, dated 20.12.1976 whereby the property has been declared as non-evacuee. Issue No,2 was in respect of the ownership which has been resolved by the trial Court on the basis of record that the property is in the ownership of plaintiffs.
These two issues were sufficient for deciding the whole case, therefore, it will not affect the judgment on the ground that the District Judge has not recorded the findings issue-wise.
6. It is now a well-settled law that the findings of facts recorded by two Courts below cannot be disturbed by the High Court in second appeal. Two crucial issues, one relating to the ownership of the land and the other relating to jurisdiction, have been decided by the trial Court on the basis of record and the first-appellate Court has affirmed the same. The High Court has correctly declined to interfere with the concurrent findings recorded by two Courts below. Our this view finds support from the judgment of this Court recorded in the case reported as Adalat Khan vs. Fazal Hussain & another [1995 SCR 151], wherein it was observed that even if a different conclusion from the one reached by the Courts below is possible, the High Court is not legally competent to disturb the findings until and unless a case of non-reading or misreading of evidence is made out or a grass illegality is shown to have been committed while appreciating evidence of witnesses.
Similarly in the case reported as Sardar Ali & 2 others vs. Saghir Ahmed [2006 SCR 414] this Court observed as under:-- "8. It is well settled principle of law that the High Court while considering the second appeal, shall not interfere with the concurrent findings of facts recorded by the lower Courts, unless the lower Courts while recording the findings on the question of facts have either misread the evidence or ignored any material piece of evidence available on the record or the same was perverse.
Generally the concurrent findings on question of facts are conclusive in absence of any illegality on account of misreading or non-reading of evidence, where the Courts below have concurrently given findings of facts, no misreading or non-ireading of evidence has been found to have been committed or non-reading of evidence has been found to have been committed then the High Court shall not interfere in second appeal."
The same view has been reiterated by this Court while recording judgment in the case reported as Habibullah vs. Ghulam Rasool [2011 SCR 501], wherein it has been observed as under:-- `....It is a celebrated principle of law that the concurrent findings on the question of facts normally are not interfered with unless, a very strong compelling legal reasons are brought on the record."
The result of the above discussion is that the judgments and decrees recorded by two Courts below and affirmed by the High Court are perfectly legal. The appeal merits dismissal. It is hereby dismissed with no order as to the costs.