' MUHAMMAD AZAM KHAN, C.J.---The captioned appeal with the leave of the Court arises out of the judgment of the High Court dated 21-2-2009, whereby Civil Appeal No.38 of 2006 has been accepted.
2. Kala, respondent, filed a suit for declaration, possession, correction of entries in the revenue record and perpetual injunction on 26-6-2004 in respect of land comprising survey No.1052, situate in village Kathar, Tehsil Sehnsa. Muhammad Karim, appellant herein, also filed a suit for perpetual injunction against Ameer Hussain, Muhammad Hussain and Azmat Bibi on 2-7-2004. Both the suits were consolidated. After necessary proceedings the trial Court vide judgment dated 30-7-2005 dismissed the suit filed by Muhammad Karim while suit filed by Kala was decreed. Feeling aggrieved, appellant herein filed appeal in the Court of Additional District Judge. Sehnsa. The Additional District Judge Sehnsa vide judgment dated 15-3-2006 accepted the appeal and dismissed both the suits. Dissatisfied from the judgment of Additional District Judge, Kala, respondent, filed an appeal in the Azad Jammu and Kashmir High Court. The learned single Judge in the High Court accepted the appeal vide impugned judgment on 21-2-2009 and restored the judgment of the trial Court.
3. Mr. Abdul Majeed Mallick, counsel for the appellant, argued that the judgment of the High Court is not maintainable. He argued that the entire case of Kala is based upon a gift-deed. According to Kala the land comprising survey No.1052, measuring one kanal, was gifted to him by Ghulam Hussain, who was owner in exclusive possession of the land but in the gift-deed, the gift has been made from khewat No.132, khata Nos.1312- 1321. No survey number is mentioned in it. He contended that the land comprising survey No.1052 doesn't fall in khewat No.132 rather it falls in khewat No.139.
He referred to jumabandi pertaining to the year 2001-2002. The learned counsel forcefully argued that the learned single Judge in the High Court has misread the evidence and not properly appreciated the same. Had the learned Judge gone through jumabandi pertaining to the year 2001-2002, he shouldn't have accepted the appeal. The learned counsel referred to jumabandi pertaining to the year 1991-1992, annexure PB, khasra girdawari for the years 1981 to 2004, annexure PF and report of the Revenue Department, annexure DK, and argued that Fazal Elahi is shown in possession of the land on behalf of Karamat Hussain. He referred to the statement of Karamat Hussain .Which finds place at page 25 of the trial Court's file. Lastly the learned counsel argued that the judgment of the High Court is without any reason. In the light of provisions of Order XX, Rule 5 and Order XLI, Rule 23 of the Code of Civil Procedure, the Court must record speaking judgment on all issues. He requested for remand of the case to High Court for decision afresh. The learned counsel referred to and relied upon the cases reported as Riaz Ahmed v. Amin Baig and others (PLD 1978 SC (AJ&K) 161), Syed Aulad Ali Shah Gilani v. Azad Jammu and Kashmir Government through Chief Secretary and another (PLD 1987 SC (AJ&K) 1) and Muhammad Hussain Khan v. Said Muhammad Khan and 11 others (PLD 1988 SC (AJ&K) 184).
' In the case reported as Riaz Ahmed v. Amin Baig and others (PLD 1978 SC (AJ&K) 161) it was observed by this Court that it is well-settled principle of law that judgment should conform with the provisions of law. It should contain the concise statement of the case, points for determination which had been raised in the case, the decision thereon and reasons for such decision.
' In the case reported as Syed Aulad Ali Shah Gilani v. Azad Jammu and Kashmir Government through Chief Secretary and another (PLD 1987 SC (AJ&K) 1) it was held that it is fundamental principle of law that order of a Court should conform with the provisions of law. It should contain the concise statement of the case, point for determination, which had been raised or arose in the case, decision thereon and the reasons for such decision. Where a judgment doesn't show that the learned Court has applied its mind to all the points raised, the impugned judgment cannot, therefore, sustain and the remand is demand of law.
' In the case reported as Muhammad Hussain Khan v. Said Muhammad Khan and 11 others (PLD 1988 SC (AJ&K) 184) while dealing with the provisions for remanding the case, it was observed that in appealable cases it is always desirable that the Courts should pronounce their opinion on all relevant points which arise or have been raised in a case. Omission .On the part of the High Court, from whose orders the appeals ate permissible to the Supreme Court to decide all such points, creates difficulty not only for Supreme Court but also the litigants. Failure on part of the High Court to decide vital point is a vital error and cannot be lightly ignored. The case was remanded.
4. Ch. Muhammad Afzal, counsel for respondent No.1, argued that the judgment of the High Court is perfectly legal and it requires no indulgence by this Court. He argued that the gift-deed has been made from khewat No.3 on 8-2-1982. Hussaini and others were entered as owners in jumabandi up to the year 1992 and Zaman and others have been entered as owners in the year 1993. The ownership and possession of respondent No.1 is established from the record. The High Court was justified in passing the decree and ordering for correction of the record.
5. We have heard the learned counsel for the parties and perused the record.
6. Before adverting to the merits of the case it is necessary to resolve the point raised by the learned counsel for the appellant that the learned single Judge in the High Court has not resolved the real controversy in the matter and the judgment is without reasoning. Although in all the three cases referred to by the counsel for the appellant i.e. PLD 1978 SC (AJ&K) 161, PLD 1987 SC (AJ&K) 1 and PLD 1988 SC (AJ&K) 184, this Court has held that it is mandatory for the Court to decide the case while going through the whole record and resolve the real question in the controversy between the parties and if the lower Court fails to resolve the real question without considering the whole record, then the case is to be remanded back to that Court.
' A perusal of the judgment of the High Court shows that the learned single Judge in the High Court has not recorded detailed reasoning for accepting the appeal but we are of the opinion that the parties are litigating in the case for a pretty long time. If from the record it is possible to resolve the controversy instead of remanding the case back to the lower Court, the Court instead of remanding the B case, has to decide the appeal on merits itself. This Court in the case reported as Abdul Aziz v. Muhammad Ashraf and 8 others (1998 SCR 204) observed as under:-- "There are some recent judgments of this Court which show that prevalent practice of this Court is to avoid remand of cases and to decide them if finding can easily be given on merits of the case. In this connection we may refer to Abdul Rashid v. D.E.0 and another 1998 PLC (C.S.) 304 in which it was observed as follows: "11. Having dealt with various objections and counter arguments in the preceding part of this judgment, it may be observed that the Service Tribunal did not record its finding on the merits of the case of the parties, because it dismissed the appeal on a technical ground. In such a situation the case should have been remanded to the Service Tribunal for applying its mind on the merits of, the case but where in the facts and circumstances of the case a finding can easily be given on the merits of the case our practice has always been to decide the case ourselves. Our aforesaid view is supported by a reported case titled Raja Feroze Khan v. Asghar Khan and others (1992 SCR 363) and an un-reported case titled Ghulam Din and others v. Muhammad Yaqub Khan and others (Civil Appeal No.1 of 1989 decided on 13-4-1991). Thus we have reached the conclusion that instead of remanding the case we should decide it ourselves."
' The parties have been engaged in litigation for more or less five decades. If the case is remanded it will consume another decade, if not more. Therefore it will advance the ends of justice if we decide the case ourselves."
' We, therefore, decide the appeal ourselves instead of remanding the same because the remand order will further prolong the matter.
7. The case of the plaintiff-respondent in the trial Court was that survey No.1052 measuring one kanal is in his ownership and possession and defendants Nos.1 to 4, who were entered as ghairmauroos, have snatched the possession from him in the guise of some entry in khasara girdawari. Defendant No.5 is also owner in the khewat but he is in possession of some other survey number according to his share. The plaintiff is in possession of the land on the basis of gift-deed executed in his favour in the year 1984. A perusal of the gift-deed is necessary to prove that the plaintiff, respondent herein, is in possession of survey No.1052 on the basis of gift-deed or not. One Ghulam Hussain son of Allah Ditta made a gift-deed of occupancy rights in respect of land falling in khewat No.132, Khata Nos.812 to 821 and land measuring one kanal, 7 marla out of land measuring two kanal, 14 marla, comprising survey No.1004, khata No.1040, situate in village Kathar, in favour of Kala son of Karamat Hussain, his real grandson on 8-4-1984, registered before SDM/Sub-Registrar Sehnsa. A perusal of the document reveals that the gift-deed was executed in two parts; one in respect of the whole share of Ghulam Hussain son of Allah Ditta in khata Nos.812 to 821, khewat No.132 and one kanal 7 marla from survey No.1004, khata No.1040. No gift-deed in respect of survey No.1052 was executed nor it is mentioned in the gift-deed that possession of the said survey number was handed over to Kala. It is not mentioned in the gift-deed that Ghulam Hussain son of Allah Ditta is in possession of specific survey numbers. It is also not mentioned in the gift-deed that possession of any land has been handed over to Kala on spot.
8. It can safely be held that the gift-deed executed in favour of Kala was not of specific survey No.1052. It was in respect of total share of Ghulam Hussain son of Allah Ditta in khewat No.132, Khata Nos.812 to 821-and one kanal 7 marla from survey No.1004, khata No.1040 and there is nothing in the gift-deed that Kala was handed over the possession of survey No.1052 in the said gift-deed.
9. We have also gone through khasara girdawari pertaining to the period from khareef 1981 to khareef 1992 whereby Hussaini and others are shown as owners and from Rabi 1993, Zaman and others are shown as owners. Sardar Begum and others are entered as owners and Fazal son of Karam Din is shown as cultivator as ghairmauroos in survey No.1052 measuring one kanal. The land is shown as maira daum and wheat and maize are shown as crops sown in the land. Nowhere the possession of Kala in the said survey number is shown from the year 1981 to 2004. The possession of Fazal son of Karam Din as ghairmauroos is uninterrupted up to Rabi 2005. The version of Kala that he remained in possession of land and it was snatched from him on 26-6-2004 is falsified from khasara girdawari (annexure PF). We have also perused misl-e-haqiyyat (annexure DG) pertaining to the year 1979 to 1980, relied upon by the defendants. Survey No.1052 contains the entry of Sardar Begum and others in column of owners and in cultivation column Fazal son of Karam Din is entered in possession as ghairmauroos in the said survey number. Similarly the record of rights pertaining to the year 1994-1995 (annexure DI) in respect of survey No.1052 contains the entries of Zaman and others, sharers-cultivators and Fazal Elahi son of Karam Elahi as ghairmauroos and in the record of rights pertaining to the year 2001-2002 (annexure DG) same entry is on the record where Zaman and others are entered as owners and Fazal Elahi son of Karam Elahi is entered in possession as ghairmauroos in survey No.1052. During the course of arguments we felt need to summon the original misl-e-haqiyyat pertaining to the year 1979-1980, which was produced by patwari of village Kathar. We examined the same because in the document annexed as annexure "DG", the names of whole owners were not entered. In the said misl-ehaqiyyat, survey No.1052 falls in khata No.820/245. The entry in cultivation column is of Mst. Hussaini and others, cultivators Fazal son of Karam Din, ghairmauroos, and in ownership's column Mst. Hussaini, widow, Zaman and Ghulam Hussain, sons of Allah Ditta are shown as sharers in the land of 1/8th share from 1/3rd share. From perusal of misl-ehaqiyyat it can safely be concluded that Ghulam Hussain son of Allah Ditta, who made a gift-deed in favour of Kala, was a sharer in survey No.1052. It cannot be said that full survey number was in his possession and he gifted to Kala or possession of the same was handed over to him.
10. Since the High Court has not dilated upon the record, we deem it necessary to peruse the evidence. We have gone through the statements of witnesses recorded by the trial Court. One of the defendants, Fazal son of Karam Elahi, who is shown as in possession of the land as ghairmauroos, appeared as witness and stated that he is in possession of the land. Previously his father was in possession of the land. Zaman was owner of the land. After the death of Zaman, Karamat is the owner of the land. Kala never remained in possession of the land. Ghulam Hussain son of Allah Ditta has not gifted survey No.1052 to him. He also stated in the cross-examination that Karamat is the owner of the land and they are in possession of land on his behalf. Karamat himself appeared as witness and took the position that he is the owner of the land and defendants Nos.1 to 3 are in possession of the land on his behalf. There is also on the record, the copy of record of rights per-aining to the years 1990-1991, 1994-1995 and 2001-2002, (annexure DA, DB and DC) in respect of survey No.1052. In the mnership column, Sardar Begum and )thers are shown as owners and in cultivation column Zaman and others are shown in possession through Fazal son of (aram Elahi, ghairmauroos. Kala is not hown as owner in possession of survey go.1052.
11. We have perused the statements of witnesses produced by the plaintiff Kala Khan. All the witnesses stated that survey No.1052 was in possession of the plaintiff. The possession was snatched by the defendant in the year 2004. On the record there is oral evidence of both the parties. From perusal of oral evidence the case appears to be evenly placed. Both the parties and their witnesses claim their possession over survey No.1052 but there is also documentary evidence on record. In misl-e-haqiyyat pertaining to the year 1992 and jamabandi of the later years subsequently prepared, neither Ghulam Hussain son of Allah Ditta nor Kala is - shown in possession of the land. In khasra girdawari the possession of Fazal son of Karam Elahi as ghairmauroos is shown to be continued from 1991 to 2005. One of his sons Muhammad Latif appeared as witness and stated that Karamat is the owner of the land and they are in possession on his behalf.
Previously his father was in possession of the land. The documentary evidence is always considered to be better evidence as compared to the oral evidence. The oral evidence cannot exclude the documentary evidence. In the case reported as Raja Muhammad Saeed Khan v.
Sardar Khani Zaman Khan and 11 others PLD 2007 SC (AJ&K) 63, it was observed as under:-- "On the one hand there is registered document containing the exchange of land while on the other there is only oral evidence. It is pertinent to note that when a document clearly speaks for the exchange of land then that document cannot be declared otherwise merely on the basis of oral evidence. On the basis of oral evidence, it couldn't be said that what was the real nature of transaction. This view finds support from Fazal Muhammad v. Ghulam Haider (AIR 1944 Peshawar 15) wherein at page 16 it has been observed as under:- "A certain amount of oral evidence was led in this case to show what the real nature of the transaction was, but when the documents speak clearly for themselves, it appears to me that there can be no question of considering what various witnesses consider to be the real nature of the transaction."
' It was also observed in the same authority as under:- "10. It is also well established principle of law that oral evidence cannot exclude the documentary evidence. A document can be rebutted only by the documentary evidence. This view finds support from a case reported as Saleem Akhtar v. Nisar Ahmed (PLD 2000 Lahore 385) wherein it has been observed as under.-- "It is also a settled principle of law that the oral evidence cannot exclude the documentary evidence. A document is rebutted by the document only. Reference can be made in this behalf to the case of Arif Baig v. Mubarrak Ali (PLD 1992 Lahore-366)."
12. From perusal of the gift-deed we have reached to the conclusion that gift-deed executed by Ghulam Hussain in favour of Kala on 8-4-1984 was from khewat No.132, khata Nos.812 to 821 of total share of Ghulam Hussain and not the total survey No.1052. No possession is shown to have been transferred to Kala through this gift-deed. From perusal of mist-e-haqiyyat (annexures DG), the record of rights (annexure DA, DB and DC) and khasara girdawari (annexure DF) it is proved that Fazal son of Karam Elahi was in possession of land as ghairmauroos. Kala was never in possession of survey No.1052. The plaintiff, respondent herein, failed to prove his case that he was ever in possession of survey No.1052 and possession was snatched on 26-6-2004.
' The result of the above discussion is that the appeal is accepted. The judgment of the High Court dated 21-2-2009 is set aside. Consequently the suit filed by the respondent is ordered to be dismissed with no order as to the costs.