' MUHAMMAD AZAM KHAN, C.J.---The titled appeal with the leave of the court arises out of the judgment and decree of the High Court dated 24-4-2013, whereby appeal filed by the appellants, herein, has been dismissed.
2. Kala Khan and others, respondents herein, filed a suit for declaration and perpetual injunction in respect of the land comprising Khewat Nos.5 and 6, min, situate in village Darra, Tehsil Muzaffarabad against the defendants, appellants herein, for declaration that the suit land was in the ownership of Sattar Ali which was inherited by his daughter, sole heir Mst. Phullan, mother of plaintiffs Nos. 1 to 4 and wife of plaintiff No,5, and Mutation No,80 recorded in respect of the said land in favour of the defendants in illegal, inoperative on the rights of the plaintiffs and not maintainable. A further prayer for possession was also made. After necessary proceedings, the trial Court dismissed the suit on 19-1-2005, being time barred and not proved. The appeal filed by Kala Khan and others was accepted and the suit was decreed by the District Judge on 30-4-2012. The appellants, herein, filed an appeal in the High Court which was dismissed vide impugned judgment and decree dated 24-4-2013.
3. Syed Shahid Bahar, advocate, counsel for the appellants, submitted that the judgment and decree of the District Judge is against law and the record. The first appellate Court has to record the findings issue-wise. No findings were recorded by the District Judge issue wise; therefore, it is against the provisions of Order XLI, Rule 31, C.P.C. The learned counsel referred to the case reported as WAPDA and another v. Messrs Khanzada Muhammad Abdul Haque Khan Khattak and Company (PLD 1990 Supreme Court 359). It was further argued by the learned counsel for the appellants that the suit was hopelessly time barred. It was not filed in the lifetime of Mst. Phullan. It merits dismissal on this sole ground. The learned counsel referred to the cases reported as Syed Rehmat Ali through Legal Heirs and 2 others v. Syed Sadique Ali through Legal Heirs (1999 YLR 1656), Janat Bibi v.
Sikandar Ali and others (PLD 1990 SC 642), Manzoor-ul-Haq and 3 others v. Mst. Kaneez Begum (1993 CLC 109) and (PLJ 2007 SC (AJ&K) 143(sic)). The learned counsel further argued that Mst.
Phullan Bibi herself got her statement recorded before Tehsildar to the effect that she has transferred her share in favour of her nephew. The plaintiffs produced no evidence for proving the fact that Mst. Phullan has not got her statement recorded. The learned counsel lastly argued that issue No,8 was crucial one. The District Judge has not recorded findings on this issue.
' In the case reported as Syed Rehmat All through Legal Heirs and 2 others v. Syed Sadique Ali through Legal heirs (1999 YLR 1656), it was observed by the Karachi High Court that the appellate Court is liable to record its judgment in respect of each point which should be self-explanatory, comprehensive and in the nature of speaking judgment.
' In the case reported as Manzoor-ul-Haq and 3 others v. Mst. Kaneez Begum (1993 CLC 109) it was observed by the Lahore High Court that the first appellate court is bound to decide each and every issue separately by objective appraisal of evidence in consonance with the law.
' The case reported as Janat Bibi Sikandar All and others (PLD 1990 SC 642), referred to by the counsel for the appellants, deals with the powers of the Supreme Court for determining the appeal to the Supreme Court. The authority has no relevance.
' There is no case on page 143 of PLJ 2007 SC (AJ&K).
' The case reported as WAPDA and another y. Messrs Khanzada Muhammad Abdul Haque Khan Khattak and Company (PLD 1990 Supreme Court 359) is a case under the Arbitration Act and has no relevance with the present case.
4. While controverting the arguments of the counsel for the appellants, Kh. Muhammad Nasim, advocate, counsel for the respondents, submitted that the judgments recorded by the two Courts below are perfectly legal. This Court in the case reported as Bostan and 5 others v. Mst. Sattar Bibi and 11 others (PLD 1993 SC (AJ&K) 24) observed that the land can only be transferred under the provisions of Transfer of Property Act. The transfer of the land by way of statement before Tehsildar at the time of attesting mutation is not a recognized mode of the transfer of land. The learned counsel relied upon Bostan's case (supra) and the case reported as Jalal-ud-Din v. Mst. Rozman and 31 others (2013 SCR 29). The learned counsel argued that the suit was perfectly within time and defended the judgments of the High Court and the District Judge.
' The case reported as Bosun! And 5 others v. Mst. Sattar Bibi and 11 others (PLD 1993 SC (AJ&K) 24), lays down the law that the estate left by a deceased Muslim owner would devolve on his heirs after his death and the fact that his heirs didn't wish to inherit was of no consequence. If the plaintiff wanted to transfer her share to the male heirs, she could do so as permissible under law i,e, through a registered document. Mere oral statement before the Collector by the plaintiff that she did not want to get share out of the estate left by her father, would not extinguish her title in the land in question and vest the same in male heirs to her exclusion. The plaintiff being a co-sharer with male heirs (defendants), though not so recorded in the Revenue Record, she would be deemed to be in continuous possession of her share and any adverse entry in the Revenue Record would not oblige her to challenge the same within a period of six years of the entry. It was further observed that entries in the Revenue Record, whether mutation or record of rights, would not by itself vest title in the heirs, rather the same were evidence of title and if proved incorrect, in view of facts admitted or proved, title of an heirs would not be adversely affected. It was also observed that subsequent entries in the record of rights would be preferred to those made earlier for the purpose of counting the limitation. It was further observed that the property can be transferred only by a registered instrument and not otherwise.
' In the case reported as Jalal-ud-Din v. Mst. Rozman and 31 others (2013 SCR 29), it was observed that there was no prescribed limitation for a suit for possession on the basis of title.
5. We have heard the learned counsel for the parties and perused the record. The plaintiffs, respondents herein, filed a suit for declaration and perpetual injunction against the defendants, appellants herein, in respect of the land falling in khewat Nos.5 and 6 min on 8-12-1999 in the Court of Civil Judge, Muzaffarabad to the effect that the land was in the ownership of Sattar Ali. After his death half of the share of Sattar Ali fell in the favour of Mst. Phullan Bibi, mother of plaintiffs Nos. 1 to 4 and wife of plaintiff No,5. The defendants, by practicing fraud, got attested Mutation No,80 in their favour in the year 1951. They recently attained the knowledge of mutation at the time of new settlement. They prayed for a declaratory decree to the effect that half of the land from khewat Nos.5 and 6, min, total measuring 84 kanal, 8 marla, 4 sersah fell in the share of Mst. Phullan and the plaintiffs are entitled for the same as legal heirs of Mst. Phullan and Mutation No,80, sanctioned in the year 1951, is against law, inoperative and not maintainable on the rights of the plaintiffs. They also prayed for the possession of land. The defendants contested the suit. The trial Court framed nine issues and dismissed the suit being time barred and not proved. The District Judge accepted the appeal of the plaintiffs, respondents herein, and decreed the suit.
6. We have considered the argument of the counsel for the appellants that under Order XLI, Rule 31, C.P.C., it is enjoined upon the first appellate Court to record findings issue-wise. The provisions of Order XLI, Rule 31, C.P.C., are mandatory in nature. It is enjoined upon the first appellate court to decide each and every issue after discussing the evidence but if the decision of appeal is possible after recording findings only on one or more issues, then it is not necessary to record findings issue-wise. In a recent judgment delivered in the case titled Allah Ditta and others v. Muhammad Sharif and others 2012 CLC 1247, this Court observed as under:-- "6. Order XLI, Rule 31, C.P.C., deals with the contents of judgment of first appellate court. For proper appreciation it will be useful to reproduce the same:-- '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 therein;
(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 Judge concurring therein.
' 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 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 could not be decided."
' Similarly, in the case reported as Mst. Sardar Begum and others v. Muhammad Ilyas and others (2013 SCR 433), it has been opined as under:--
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 considering 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 considering the record, then the judgment is valid one."
7. A perusal of the judgment of the District Judge reveals that the same has not been recorded issue-wise. Not only that but the learned District Judge also failed to even point out all the issues involved in the case. Complicated issues of facts are involved in the case. The District Judge set aside the judgment of the trial Court, therefore, it was enjoined upon the District Judge to record findings issue-wise but he failed to do so. The judgment is not, therefore, in accordance with the provisions of Order XLI, Rule 31, C.P.C. It is not maintainable.
8. Since we have reached the conclusion that the judgment has been recorded by the District Judge in violation of Order XLI, Rule 31, C.P.C., therefore, we are constrained to remand the case to the District Judge for recording the judgment issue-wise. There is no need to resolve all the points raised by the counsel for the parties.
' The result of above discussion is that the appeal is accepted. The judgments of the High Court and the District Judge are set aside. The case is remanded to the District Judge for recording decision issue-wise after hearing the counsel for the parties. No order as to the costs.