' ROOH-UL-AMIN KHAN, J.-- Mst. Sikander Jehan and four others, plaintiffs/petitioners, through the instant revision petition have called in question the legality and propriety of the judgment and decree dated 19-7-2008 passed by the learned Additional District Judge-H D.I. Khan, vide which appeal of the defendants/respondents against the judgment and decree dated 25-1-2006 passed by the learned Civil Judge Paharpur, District D.I. Khan was accepted.
2. Briefly stated facts of the case are that the petitioners/plaintiffs filed a suit against the respondents/defendants for declaration to the effect that they along with pro forma defendants/respondents Nos.8 to 11 are owners-in-possession of the suit property measuring 66 kanals, 13 marlas situated at Mouza Muhammad Hussain, Tehsil Paharpur, District D.I. Khan, through purchase by their predecessor-in-interest, namely, Doctor Amanullah Khan, vide Mutation No,139 attested on 19-11- 1982 from defendant No,7., namely, Sanaullah Khan and others; that Mutation No,287 dated 13-7-1994 from defendant No,7 in favour of defendant No,1 including the subsequent Mutation No,364 dated 13-7-1994 from defendant No,1 in favour of defendants Nos.2 to 5; and Mutation No,367 dated 6-4-2001 from defendant No,3 in favour of. Defendant No,6 were forged, fictitious, ineffective upon their rights and thus liable to be cancelled. They also sought correction of the Revenue Record in this respect in their favour along with pro forma defendants Nos.8 to 11.
2. The defendants contested the suit by filing written statement. The divergent pleadings of the parties gave birth to the framing of as many as five issues including the relief. The parties produced their pro and contra evidence and the learned trial Judge after evaluating the same in the light of arguments of the learned counsel for the parties decreed the suit of the plaintiffs as prayed for in the plaint vide judgment and decree dated 25-1-2006.
' Feeling aggrieved therefrom, the defendants/respondents assailed the aforesaid findings of the learned trial Judge through an appeal which was heard and accepted by the learned Additional District Judge-II D.I. Khan vide judgment and decree dated 19-7-2008. Hence this revision petition by the plaintiffs/petitioners.
3. Learned counsel for the petitioners vociferously assailed the findings of the learned lower appellate court on the ground that the same are against law and evidence brought on record. He contended that the impugned findings are the result of misreading and non-reading of material evidence available on file; that Mutation No,139 dated 19-11-1982 was attested in accordance with law according to which all, the rightful owners had transferred their due shares in favour of the predecessor of the plaintiffs; that only the share of Mst. Gulai was kept reserved who also subsequently transferred her share in his favour through Mutation No,133 dated 27-1-1986, therefore, the impugned findings are based on surmises and conjecturers. He urged that the vendor Sanaullah at the time of attestation of Mutation No,133 dated 27-111986 was major and thus his share has never been kept reserved by the revenue authority, therefore, the impugned conclusion of the learned appellate court is the result of erroneous assumption of facts, thus liable to be set at naught. The learned counsel submitted that the plaintiffs/petitioners through documentary evidence in the shape of Mutation No,139 attested on 19-11-1982 and also through oral evidence in the shape of marginal witnesses and the scriber had successfully established that the vendof Sanaullah Khan had transferred his share in .Favour of the predecessor-in-interest of the plaintiffs, therefore, the learned appellate court has reached to an incorrect conclusion while passing the impugned judgment and decree. That the payment of sale consideration through the statements of the witnesses was duly proved and that the vendor Sanaullah Khan had badly failed to prove that at the time of attestation of Mutation No,139 he was minor; that the learned trial Court while deciding the relevant issue had discussed the pro and contra evidence produced by the parties and thus had arrived to a correct conclusion; that the learned appellate court while accepting the appeal has not recorded separate finding on each and every issue and, therefore, has not delivered a proper judgment in accordance with Order XLI, Rule 31, C.P.C. As such, the learned counsel argued that the impugned. Judgment and decree of the learned lower appellate court being patently illegal, based on misreading and non-reading of evidence is liable to be set aside.
4. On the other hand, the learned counsel for the respondents submitted that at the time of attestation of Mutation No,139 dated 19-11-1982, the shares of two persons, namely, Mst. Gulai and Sanaullah were reserved by the Tehsildar for the reason that Mst. Gulai was a pardanasheen lady and her identification was required through reliable evidence; Sanaullah was minor and, therefore, his share was not transferred in favour of the plaintiffs/petitioners. He also attacked the entire sale transaction in favour of the plaintiffs/petitioners, on the ground that Mutation No,139 has been attested in the office of Tehsildar and not in a Jalsa-Aam, which is against the mandatory provisions of section 42 of the West Pakistan Land Revenue Act 1987; that the suit has been filed malafidely; in fact the power of attorney, being not signed by the plaintiffs Nos.2 to 5 was defective, thus, the attorney was not competent to file the suit on their behalf, therefore, the suit has wrongly been entertained by the leaned trial Court. He referred to the statement of P.W.-2 Tabarak Hussain Shah, UDC District Registration Office D.I. Khan who produced Form-A, wherein his date of birth has been entered as 2-1-1970. Similarly, the Secretary Union Council Kotjai appearing as DW-1 has produced the birth register for the year 1970, wherein at. S.No,24, the name of Sanaullah exists and his date of birth is mentioned as 19-6-1970; that the above said witnesses have produced the public documents to which presumption of correctness is attached. The learned counsel for the respondents while defending the impugned findings of the appellate court submitted that the same are based on proper appreciation of evidence, facts and law on the subject, which need no interference by this court in exercise of its revisional jurisdiction.
5. Having been heard the learned counsel for the parties and perusal of the record with their valuable assistance, it reveals that the predecessor-in-interest of the plaintiffs/petitioners had purchased property measuring 700 kanals situated at Mouza Muhammad Hussain, Tehsil Paharpur, District D.I. Khan through sale Mutation No,139 dated 19-11-1982. The entire property 'including the share of Sanaullah, respondent No,7, was transferred in the name of predecessor-in-interest of the petitioners. The above said mutation was given effect and was incorporated in the Revenue Record of right, excluding the share of Sanaullah, i,e, measuring 66 kanals, 13 marlas, which gave a cause of action to the plaintiffs, thus the suit was instituted for correction of entries in the Revenue Record.
In the written statement, respondent No,7 denied the claim of the plaintiffs/petitioners on the ground that at the time of attestation of the alleged sale Mutation No,139 dated 19-11-1982, he was minor and had never entered into sale transaction with the predecessor-in-interest of plaintiffs, thus the alleged sale mutation is illegal and ineffective upon his rights and the entries in the Revenue Record are iii accordance with law. Pro. And contra evidence were produced by the parties. The trial Court while deciding Issues Nos.2 and 3 arrived at the conclusion that the contesting respondent No,7 has failed to substantiate that he was minor at the time of attestation of Mutation No,139. In support of his finding, lie referred to the statement of Secretary Union Council, Kotjai (DW-1) who produced birth register of the year 1970, according to which the name of Sanaullah is mentioned at S.No,32, wherein his date of birth has been mentioned as 12-6-1970.
There is also overwriting on the word "boy" and figure "70", and that too with a different colour of pens. Similarly, the Registration Officer (DW-2) has produced Form-A of respondent No,7, according to which his date of birth has been written to be 2-1-1970. In one of the columns, his educational qualifications have been shown as Matric, while the record reveals that he is illiterate. The contradictory statements of the witnesses regarding age of respondent No,7 were disbelieved and, therefore, it was held that at the time of attestation of Mutation No,139, respondent No,7 was not minor, rather major.
6 The appellate court while accepting the appeal and setting aside the judgment and decree of the trial Court totally brushed aside the main controversy, i,e, age of respondent No,7 at the time of attestation of Mutation No,139. While recording the impugned judgment, the learned appellate court has discussed the matters which were neither disputed nor in issue. In this respect, the relevant portion from the impugned judgment of the learned appellate court is reproduced below:- -- "It is the case of respondents that their predecessor-in-interest had purchased the share of appellant No,6 and the said share was not protected by the Revenue Officer. Having alleged so, it was in the first instance, purely the responsibility of the respondents to have proved the factum of sale which is far important than the question of majority or minority of respondent No,6.'
(underline supplied)
' Perusal of the entire record and particularly para-6 of the preliminary objections and para-1 of the written statement, of defendants No,1 to 5 and 7 reveals that the only base of defendant No,7 for denial of the sale transaction is to the effect that at the time of sale transaction, he Was minor. The relevant preliminary objection No,6 of the written statement says that:- [(urdu Text)] ' Similarly, Para-,1 .'of the written statement discloses the denial in the following manner:- {{URDU TEXT}} ' The bare reading of the above mentioned paras clearly indicates that the contesting defendants have admitted the sale transaction in favour of predecessor-in-interest of the plaintiffs/petitioners from Allah Nawaz, Ahmad Nawaz, Qayum Nawaz, Abdullah, Saifullah and Malik Khanam to the extent of their shares. To this extent, they have also admitted the entries in the names of the plaintiff/petitioners in the Revenue Record.
' The only denial advanced by respondent No,7, to the extent of his share, measuring 66 kanals, 13 marlas, is to the effect that at the time of attestation of the sale Mutation No,139, he was minor, therefore, his share was reserved by the Revenue Authorities. The entire record is silent about the payment/non-payment of the sale consideration which has even not been disputed by the defendant No,7 in the written statement or in his statement before the court. The learned appellate court instead of deciding the issue of age of respondent No,7 fell into controversy of payment or non-payment of sale consideration.
7. The right of appeal, provided by the Statute, is in continuation of the original proceedings of the trial Court and the appellate court is vested with the power to rehear and decide the entire dispute between the parties in accordance with the provisions enumerated in Order XLI, Rule 31, C.P.C., which provides a guideline as well as parameter for writing judgment by the appellate court. The manifest object of the above said provisions is to provide a pavement to the appellate court for writing a good, characteristic and self-explanatory judgment. It must contain reasons; that justify the conclusion arrived at by the appellate court. The Legislature has entrusted a very important duty to the appellate court. It is for the appellate court to decide finally all the questions of facts and law involved in the case, because the judgment of the trial Court will disappear and merge in the judgment of the appellate court and there remains in existence only one judgment, i,e, of the appellate court. The judgment of the appellate court shall contain the points for determination of the dispute and 'must have reasons for the decision. If the appellate court fails to comply, the mandatory provisions of Order XLI, Rule 31, C.P.C., it will be certainly failing in the performance of his duties and the judgment would not be in accordance with law.
8. The appellate court while reversing the findings of the 'trial Court was under legal obligation to decide the dispute in the manner prescribed by Order XLI, Rule 31, C.P.C. The main controversy, i,e, the age of respondent No,7 at the time of sale has been left unattended and the entire energy has been wasted on payment or non-payment of the sale consideration, which was not the point-in- issue, or dispute at all between the parties.
' It is manifest from the impugned judgment that the appellate court has over sighted the pleadings and material evidence available on record and has not applied mind to the resolution of issues involved for their proper adjudication. Therefore, the findings of the appellate court are not sustainable under the law.
Consequently, while accepting the revision petition, the impugned judgment of the appellate court is set aside and the to the learned Additional District Judge-II D.I. Khan for decision afresh in accordance with law and evidence available on file, after giving a fair opportunity of hearing to the respective parties.