' ZAFAR AHMED RAJPUT, J.---By this common Judgment, I would like to dispose of both the Civil Revision Nos.11 and 12 of 2009 as the same arise out of one and same judgment.
2. These Civil Revisions under section 115, C.P.C. Are directed against the judgment and decree dated 20-10-2008 passed by the learned IIIrd Additional District Judge, Khairpur, whereby allowing the Civil Appeals Nos.50 and 51 of 2002 reversed the judgment and decree of the trial Court passed in F.C.Suit No,23 of 1998 and F.C. Suit No,126 of 1999.
3. The brief facts of the case are that the applicant/plaintiff filed a Suit No,23 of 1999 for Declaration, Possession, Mesne Profit and Permanent Injunction in the Court of Senior Civil Judge-I, Khairpur in respect of a sikni house, admeasuring 372 Sq.Feet bearing C.S.No,2, Ward-A, Pirjo Goth, District Khairpur with the following prayers:--
(i) That this Hon'ble Court may graciously be pleased to declare the plaintiff as owner of the suit property by virtue of registered sale-deed and mutation entries in her favour.
(ii) To declare the act of defendants Nos.2 to 7 regarding their interference with the right/title ownership entries of the plaintiff over suit property as illegal, unlawful, unwarranted under the law and against the principle of natural justice.
(iii) To direct the defendants Nos.4 to 7 by decree of this Hon'ble Court to vacate their illegal possession and restore its vacant possession to plaintiff.
(iv) To award mesne profits to the plaintiff from the defendants Nos.4 to 7 on account of their illegal possession over the suit property from the month of March, 1997 till the physical possession of the suit property is restored to the plaintiff at the rate of Rs,500 per month.
(v) To grant permanent injunction in favour of the plaintiff, thereby permanently restraining the defendants from interfering with the legal rights, title and ownership entries of the plaintiff over the suit property in the government record in any manner and so also not to make any sale, alienation, etc. Of the area under their illegal possession or by way of other manner.
(vi) To award the costs of the suit.
(vii) To award any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the facts of the suit.
4. Subsequently, respondent No,1 filed a separate suit bearing F.C. Suit No,126 of 1999 for Declaration and Permanent Injunction in respect of the said property with the following prayers.--
(a) That by decree of the court it may be declared that area and boundaries of the suit shop have deliberately, illegally and malafidely been included in the shop of defendant No,5 purchased by her through registered sale-deed No,988 dated 17-12-1995, which is quite mala fide and illegal, inoperative against plaintiff. Further it may be declared that the area purchased by defendant No,5 from defendants Nos.3 and 4 is 186 Sq.Feet and remaining area of 186 sq.Feet and boundarie's thereof is exclusive and absolute property of the plaintiff.
(b) That permanent injunction may be granted whereby restraining the defendants Nos.5 to 7 not to interfere with the title, ownership and peaceful possession of the plaintiff over the suit shop.
(c) To award the special costs of the suit.
(d) Any other relief deemed fit and proper under the circumstances of the suit.
5. The learned trial Court consolidated both the suits i.e, F.C.Suit No,23 of 1998 and F.C.Suit No,126 of 1999, thereby treated the Suit No,23 of 1998 as leading main suit and framed the following consolidated issues:--
(1) Whether the suits are maintainable according to law.
(2) Whether the Suit No,126 of 1999 titled as Haji Khan v. PO Sindh is not properly valued?
(3) How much area was purchased by the plaintiff Mst.Reshman?
(4) Whether the area and boundaries of the suit property are false and fictitious?
(5) Whether the defendant No,4 Haji Khan had no knowledge of the sale-deed in favour of the plaintiff Reshman?
(6) Who is entitled to the relief claimed?
(7) What should the decree be?
6. The parties led their evidence in respect of their respective contentions. The learned trial Court, on the assessm ent of evidence on record decreed the F.C. Suit No,23 of 1998 filed by the applicant/ plaintiff and dismissed the Suit No,126 of 1999 filed by the respondent No,1 vide consolidated judgment and two decrees dated 28-5-2002.
7. The respondent No,1 Haji Khan challenged the judgment and decrees dated 28-5-2002 passed by the learned Court of Senior Civil Judge-I, Khairpur by preferring two Appeals Nos.50 and 51 of 2002 before the learned District Judge, Khairpur, which were subsequently transferred to the learned Court of IIIrd Additional District Judge, Khairpur, who allowed both the appeals, thereby setting aside both the decrees of learned trial Court by dismissing the F.C. Suit No,23 of 1998 filed by the applicant and decreeing the F.C. Suit No,126 of 1999 filed by the respondent No,
1. Hence these revision applications.
8. I have heard Mr.Syed Jaffer Ali Shah, learned counsel for the applicant, Abdul Rasool respondent No,1(i) in person and Mr. Imtiaz Ali Soomro, learned Assistant Advocate General.
9. Mr. Syed Jaffer Ali Shah, the learned counsel for the applicant has raised a preliminary objection to the approach made by the learned IIIrd Additional District Judge, Khairpur as he failed to comply with the requisitions of an appellate judgment mentioned in Order XLI Rule 31 of C.P.C. He also argued on merits of the case. While, the respondent No,1(i) in person supported the judgment of learned appellate Court. Learned A.A.-G. Did not support the impugned judgment as he was in agreement with learned counsel for applicant with regard to preliminary legal objection.
10. From the perusal of the impugned judgment of the learned appellate Court, it appears that the learned appellate Court has passed the impugned judgment ignoring the provisions of Order XLI, Rule 31, C.P.C. In its letter and spirit, as the appellate Court did not frame the point for determination, nor given findings on such points, despite of the fact that the learned trial Court had framed 7 issues. And all issues were decided by the learned trial Court in favour of applicant but the same were reversed by the learned appellate Court in favour of respondent No,
1. Strictly speaking the judgment of learned appellate Court cannot be said to be a judgment of the appellate Court at all within the meaning of Order XLI, Rule 31 C.P.C., which is reproduced here for ready reference, as under:-- "ORDER XLI C.P.C.
Rule 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."
11. It is now well settled principle of law that the provisions of Order XLI, Rule 31 of C.P.C. Is mandatory in nature and should be followed to enable the appellate Court to decide the matter in accordance with law. Where appellate Court over-looks, ignores and fails to consider evidence on record or the order of appellate Court lacks application of judicious mind, it would amount to failure to comply with the mandatory provisions of Order XLI, Rule 31 of C.P.C. It has been held by this Court in the case of Juma Khan v. Mst.Shamim and others (1992 CLC 1022) that the provisions of Order XLI, Rule 31, C.P.C., are mandatory and the judgment of appellate Court has to set out points for determination, record the decision thereon and give its reasons for the said decision. Outlining the significance of said provisions of C.P.C., it has further held by this Court in Juma Khan's case (supra) that the legislature has laid down these rules so that either the second appellate Court or the Revisional Court should be in a position to find out the track traversed by the appellate Court and it cannot run away from its onerous duties of recording the, findings of the fact and/or discussing the evidence.
12. Since I am of the view that it is a perfect case for remanding to the learned appellate Court for passing the judgment and decree after framing points for determination, I leave off myself from assessing the arguments advanced by the learned counsel for the parties on the merit of the case as, in my estimation, it may prejudice the case of either party before the appellate Court. However, to the contention of the respondent No,1(i) supporting the judgment of the learned appellate Court cannot be considered in a situation where the rights of the parties are not determined by the Court in accordance with law. The revisional jurisdiction of this Court, as a matter of fact is meant to rectifying the errors by the subordinate Courts.
13. For the foregoing reasons, both the revision applications are allowed. The judgment and decrees passed by the learned appellate Court are set aside and the case is remanded to the Court of IIIrd Additional District Judge, Khairpur, with directions to the said Court to pass a de novo judgment and decree after framing points for determination in the appeals in accordance with he provisions of Order XLI, Rule 31, C.P.C. And providing opportunity to parties to advance their arguments. This case has already exhausted lots of time; therefore, the parties are directed through their counsel to appear before the learned IIIrd Additional District Judge, Khairpur, on 2-12-2013, who shall expedite the D appeals and dispose it of within two months from 2-12-2013. The civil revisions stand disposed of with no order as to costs.
14. Office is directed to forward the copy of this judgment to the Court of learned IIIrd Additional District Judge, Khairpur. The compliance report of the judgment may be intimated to this Court through Additional Registrar of the court.