' SARDAR ABDUL HAMEED KHAN, J.---The above titled appeal has been addressed against the judgment and decree passed by the District Judge, Hattian Bala on 25-5-2010 whereby, the learned District Judge, Hattian Bala accepted the appeal filed on behalf of Abdul Rashid and others, respondents, herein, and set aside the judgment and decree passed by the Civil Judge, Hattian Bala dated 18-5-2006.
2. Precise facts, leading to the filing of the above captioned appeal are that Abdul Rashid and others, plaintiffs/ respondents, herein, brought a suit for declaration on the basis of adverse possession and perpetual injunction against present appellants, in respect of suit land in the Court of Civil Judge, Hattian Bala on 22-4-1992. It was averred that land comprising survey number 323 measuring 2 kanal 14 marlas, survey No,878 measuring 5 marlas, survey No,882 measuring 2 kanal 17 marlas, total measuring 8 kanals 16 marlas, situated in village Maknait, Tehsil and District Hattian Bala is in the ownership of defendants Nos.1 to 6 according to the revenue record. It was stated that the plaintiffs have purchased the suit land from Fateh Muhammad and Ghulam Muhammad, predecessors of the defendants, through an oral sale-deed. It was claimed that the plaintiffs are in continuous and hostile possession of the suit land for about 30 years, therefore, declaratory decree on the basis of adverse possession be issued in their favour.
3. The suit was contested by the defendants by filing written statement, stating therein that the plaintiffs have no locus standi to file the instant suit, because plaintiffs and defendants are co- sharers in the suit land. It was also stated that law of adverse possession has been repealed and the same is no more in the field, therefore, no decree on the basis of adverse possession can be granted.
4. Maqsood Ahmed (father of present appellants Nos.13 to 20) and others, also filed a suit for declaration and joint possession in respect of the same land against the present respondents, on '
20-12-1994. This suit was also contested by the defendants, by filing written statement, wherein, claim of the plaintiffs was refuted.
5. The learned trial Court, in light of the pleadings of the parties, framed issues and the parties were directed to lead evidence in support of their claims. On completion of the proceedings, the learned trial Court, dismissed the suit filed on behalf of plaintiffs/respondents, herein, whereas, the counter suit, filed on behalf of present appellants was decreed vide judgment and decree, dated 18-5- 2006. Feeling aggrieved from the said judgment and decree, Abdul Rashid and others, plaintiffs/respondents, went in appeal before the Court District Judge, Hattian on 7-8-2006. The learned 1st appellate Court, after hearing the parties, vide judgment and decree dated 25-5-2010 accepted the appeal and set aside the judgment and decree passed by the Civil Judge, Hattian Bala dated 18-5-2006. Present appellants, being dissatisfied from the above mentioned judgment and decree, have knocked the door of this Court to seek quashment of the same and restoration of the judgment and decree of the learned trial Court.
6. Syed Nazir Hussain Shah Kazmi, Advocate, the learned counsel for the appellants, reiterating the facts and grounds raised in the appeal, argued that the learned District Judge, has not considered the oral and documentary evidence brought on record. The learned counsel contended that the judgment of trial Court is comprehensive enough, in which, the evidence of the parties has been considered and appreciated in its true perspective, each and every issue has been discussed and resolved, as required by the law. The learned counsel maintained that the plaintiffs/ respondents neither could prove their hostile possession nor the law of adverse possession was prevailing at the time, when, the suit for adverse possession was filed, hence, the declaratory decree on the basis of adverse possession was rightly denied by the learned trial Court but the learned Court below, without discussing each and every issue, has accepted the appeal in a telegraphic manner. The learned counsel stated that the learned District Judge, in his judgment, has discussed Order XLI, Rule 31 of the C.P.C. But unfortunately did not bother to comply with the requirement of said provision of Law. The learned counsel maintained that neither any revenue record, supporting the version of the respondents is available on the file nor the continuation of hostile possession has been proved, rather the plaintiffs/ respondents, herein were in permissive possession of the suit land. In support of his submissions, the learned counsel placed reliance on the following case-law:- -
(1) 1993 SCR 338,
(2) 2012 CLC 1274
(3) 1993 CLC 109
(4) 1992 CLC 435
(5) PLD 1983 SC AJ&K 89 and
(6) PLD 1978 SC AJK 33
7. Mr. Sagheer Javed, Advocate, the learned counsel for the respondents, controverted the claim of the appellants, supported the impugned judgment and decree and argued that possession of the plaintiffs/respondents has been admitted by the present appellants, while filing the suit for joint possession. The learned counsel claimed that the suit property was purchased through an oral sale-deed in 1966 and referred the copies of Khasra Girdawari and Misal-e-Haqiyat, annexed with the file and argued that the plaintiffs/respondents remained in continuous and hostile possession of the suit land since 1967 to 22-4-1992 (the date of filing the suit), which counts to about 26 years, hence, adverse possession of the plaintiffs/ respondents had ripen, hence, the plaintiffs were entitled to the declaratory decree on the basis of adverse possession but the learned trial Court failed to resolve the controversy, as required under law and the learned District Judge, while considering the facts and merits of the case afresh, complying with the law on the point has rightly vacated the judgment and decree passed by the learned trial Court and decreed the suit filed on behalf of plaintiffs/ respondents. The learned counsel maintained that the judgment under challenge does not suffer from any illegality or irregularity, hence, no interference by this Court is permissible under law.
8. I have heard the learned counsel for the parties, scanned minutely the record of the case including the impugned judgment and decree.
9. In view of the proposed conclusion, I am of the view that facts and merits of the case should not be discussed, however, after having a critical study of the impugned judgment, it has been observed that the learned Court below has not decided the controversy issue wise, which is mandatory provision of law, that the. 1st appellate Court, being an equal Court of A facts, must discuss and decide each and every issue. A reference can be made to case titled Muhammad Mustaqeem through his legal heirs v. Abdul Haleem through his legal heirs, (1992 CLC 435). The learned Judge, in the Karachi High Court, at page 440 of the report has pleased -to observe as under:-- "...................................... ......................................
' Likewise, issues Nos. 4 and 7 were also important issues settled by the trial Court, but no finding is recorded on these issues separately as required under Order XLI, Rule 31, C.P.C. Thus the judgment of the 1st, appellate Court in view of the case-law, reported in 1987 CLC 2281 cannot be sustained.
The findings of the trial Court have been set aside by the appellate Court but no reasons have been shown for such decision. For instance, the finding of the trial Court that the judgment and decree of the Civil Court was barred and set aside. The finding of the trial Court that the respondent had lost his right under the statute by executing rent agreement in favour of the petitioner. The finding of the trial Court that the transfer of premises in dispute to the petitioner was not illegal or void ab initio. All these findings and some other by the trial Court have been set aside and no specific reasons have been shown for setting aside such findings. For these reasons the judgment and decree dated 12-8-1985 passed by the 5th Additional District Judge, Hyderabad, in Civil Appeal No,145/1984 (Abdul Haleem v. Government of Sindh) is set aside and the case is remanded back to the said Court for decision of the appeal after hearing the parties afresh and deciding the appeal in accordance with the provision of Order XLI, Rule 31, C.P.C."
10. The same controversy has been resolved by a division bench of the apex Court of Azad Jammu and Kashmir in case titled Allah Ditta and others v. Muhammad Sharif and others, reported as 2012 CLC 1274 wherein, it was observed that - Appellate Court below had not recorded findings issue- wise, but only resolved the question of limitation and question as to ' whether suit was hit by Order II Rule 2, C.P.C. Was not resolved- - - - No issue was framed whether the suit was hit by Order II, Rule 2, C.P.C.- - - - Appellate Court below delivered the judgment in a telegraphic manner without discussing the facts or evidence on record. Appellate Court was ' obliged to record findings on each and every issue when the decision on the basis of finding one issue was not possible---Two issues were crucial in the suit and without deciding said issues, appeal could not be decided--- High Court, in circumstances, had correctly remanded the case to Appellate Court below for resolving of issues.
11. So far as the question of validity of oral sale is concerned, after promulgation of Registration Act, 1977 Bik, and after establishment of Registration Machinery in Azad Jammu and Kashmir, in early fifties, no unregistered sale-deed is admissible. This very point was also B considered and resolved by the apex Court of the State in a case titled Khadim Hussain Khan and 9 others v. Mst. Sarwar Jan and 27 others (1999 M LD 824), wherein, it was observed that S.17-Documents creating some rights such as gift-deed and sale-deed were to be registered compulsorily - Ss.59, 60 and 61(2)
Registration Officer has to register the document and then he has to sign it and put a date on it-- -A certificate is endorsed on it containing the word "Registered", then it is sufficient proof that the document was registered in accordance with law.
12. After having taken into consideration, the pleadings of the parties as well as the above- reproduced precedent case-law, I am of the view that a case of remand has been made out.
13. The nub of the above discussion is that the instant appeal is accepted, impugned judgment and decree dated 18-5-2006 is set aside and the file is remanded back to the learned District Judge, Hattian Bala for issue-wise decision afresh, strictly in accordance with law, within a reasonable time.
14. Order announced. The file shall be consigned to record after due completion and sending back the record of the case.