' Through instant civil revision application, applicant has challenged the judgment dated 30.05.2012, recorded by IInd Additional District Judge, Sanghar in Civil Appeal No, 12/2008, whereby learned appellate Court maintained the judgment passed by trial Court in F.C. Suit No, 16/2005 (Re- Mst. Sarwat Bano v Province of Sindh and others).
2. Succinctly, the facts of the case are that an agricultural land bearing Survey Nos. 512/1 to 4; 513/1 to 4; 514/1 to 4; 515/1 to 4; 516/1 to 4, total area 59-36 acres, situated in Deh Samerjo, Taluka Khipro, District Sanghar originally belonged to one Ala. Sodhi, mother of Respondent/Defendant No, 6, who sold the same to the applicant/plaintiff in the sum of Rs, 1,50,000/- by way of oral statement recorded before Mukhtiarkar Khipro in presence of witness Haji Ghulam Mustafa on 22.05.1988, for which the applicant had paid such mutation fee to the Respondent No, 4; resultantly the suit land was mutated in the revenue record of rights in the name of applicant vide mutation Entry No, 112 in village form XV. The applicant received possession of the suit land at the time of purchase from Mst. Sodhi and till this date he is in possession of the same and paying the revenue taxes to the government. The Respondent No, 6, son of said seller Mst. Sodhi, was well in knowledge of this sale transaction but in the month of January 2005 he became dishonest and moved an application before the Respondent No, 2, complaining therein that his mother has not sold out the suit land to the applicant and therefore, the Khatta of the suit land in the name of applicant be cancelled. The Respondent No, 2 is not having original jurisdiction but he is revising authority and the Respondent No, 6 maliciously moved the application directly to the Respondent No,
2. The Respondent No, 2 had called the applicant and had issued threats that in case applicant shall not hand over the possession of the suit land to the Respondent No, 6, the khata of applicant regarding suit land in the revenue record of rights shall be cancelled; that two days back prior to the institution of the suit, Respondent No, 6 with the help of 10/15 persons tried to dispossess the applicant from the suit land but did not succeed and went by issuing threats that the applicant shall be dispossessed from the suit land forcibly. Applicant prayed as under:-- "(a) To declare that the appellant/plaintiff is lawful owner of the suit land being purchaser of the same, and could retain its possession with her own rights, title, and interest and the claim of Respondent/Defendant No, 6 over the suit land is illegal, without lawful authority, null, void, abinitio, and not binding upon the appellant/plaintiff.
(b) To issue Permanent Injunction' restraining the Respondent/Defendant No, 02 from entertaining the application of Respondent/Defendant No, 6, and the respondents/Defendants No, 4 and 5 be restrained from cancelling the khata of appellant/plaintiff in respect of suit land and further the Respondent/Defendant No, 6 be restrained from interfering with the peaceful possession of the appellant/plaintiff over the suit land by themselves, or through their agents, associates, attorneys, subordinates, helpers, men, supporters etc in any manner whatsoever"
3. Whereas, Respondent/Defendant No, 6, while filing written statement, denied the allegations and stated that his mother Mst. Sodhi did not sell out the suit land to the applicant nor the applicant is in possession of the suit land the applicant with the help of revenue authority got mutated the suit land illegally and unlawfully in his name in the revenue record of rights and further on coming in knowledge the Respondent No, 6 moved an application to Respondent No, 2 with a request to make enquiries regarding this illegal khata of applicant and thereafter, khata of Mst. Sodhi be corrected. Mst. Sodhi had mortgaged the suit land with Agricultural Development Bank of Pakistan Khipro branch on 28.06.1994 and had got loan vide loan No, 138435. He further stated that they had made default in payment of loan hence the ADBP referred this default case to the banking Court No, 1, Latifabad, Hyderabad where such decree has been passed in favour of ADBP Khipro branch in Suit No, 2989 of 1997, the suit land is now government. Property. The respondent filed his written statement at Ex.23 stating therein that as per Entry No, 96 dated 05.06.1965 the Respondent No, 6 had gifted out the suit land and other lands in all 104-16 acres to his mother Mst. Sodhi. He further stated that as per Entry No, 112 of register Dadhal Kharaj XV Book No, 883, said Mst. Sodhi sold the suit land by way of oral statement to the applicant and the applicant has to prove that Receipt No, 33 book No, 15878 amounting to Rs, 7000/- was actually issued in the year 1988 or not. The applicant is bona fide purchaser of the suit land then which circumstances compelled her father on 22.05.2005 to pay Rs, 2,20,000/-to Respondent No, 6 and his family. He also stated that the Respondent No, 6 has complained that fraud has been committed by the applicant in respect of land of his mother. Written statement was adopted by the Respondents No, 1 to 3 and 05.
4. Learned counsel for applicant, at the outset, contends that impugned judgment is against the mandatory provisions of Order XLI Rule 31, C.P.C., as learned appellate Judge has not referred a single piece of evidence brought on record by both parties and merely he has mentioned that since impugned judgment is in accordance with law, therefore, appeal was dismissed; thus, legal right of applicant has been seriously prejudiced; learned appellate Court has travelled beyond its jurisdiction.
5. Learned counsel for Respondent No, 6 while refuting above contentions, contends that there was no necessity to frame point for determination while maintaining the judgment passed by trial Court. In support of his contention, he has relied upon 2010 SCM R 1868 and 2006 SCMR 11.85.
6. Learned State Counsel appearing for Respondents No, 1 to 4, at the outset contends that impugned judgment is in negation of Order XLI Rule 31, C.P.C., therefore, instant revision may be allowed and the case may be remanded for fresh decision.
7. While addressing the plea of learned counsel for applicant that there is mandatory requirement under Order XLI Rule 31, C.P.C. Whereby the appellate Court shall frame points for determination while deciding the appeal. At this stage, it would be conducive to refer the relevant portion of impugned judgment, which is as under:- "I have given due consideration to the arguments of learned counsel for the respective parties and carefully perused the record and proceedings. From perusal of record and proceedings of learned trial Court, it is matter of record that learned trial Court while discussing the evidence and documents available before him has not committed any illegality or irregularity. However, the learned counsel for the appellant has failed to point out any illegality or infirmity in the impugned judgment. The impugned judgment passed by learned Senior Civil Judge is very explanatory and reasonably. The learned Senior Civil Judge during discussing the evidence brought on the record by the respective parties. The appellant has failed to prove any documentary evidence to prove her claim over the suit property. It is settled law that who/he come in Court burden lies upon him to prove his claim over the disputed property through oral as well as documentary evidence. In the present case the appellant has failed to prove her claim over the suit property. However, in appeal the learned counsel for the appellant has only argued that the grounds of the appeal be treated as an argument but he has failed to point out any infirmity in the impugned judgment that what illegality committed by the learned trial Court and what document which is in her favour has not disclosed by learned trial Court. On the other hand, the respondents have proved their claim over the suit land through oral as well as documentary evidence."
8. While perusal of above, it would be conducive to refer the provision of Order XLI Rule 31 of the Code as learned counsel for the applicants had confined its arguments to such an extent The provision reads as under:-- "R.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 it is pronounced be signed and dated by the judge or by the judges concurring therein.
' Bare perusal of above provision, it is suffice to say that the use of word 'shall' leaves nothing to doubt that such procedure is mandatory in nature hence the appellate Court, while writing the Judgment shall follow the prescribed procedure within its letter and spirit. The purpose of insisting of points for determination, seems to be nothing, but to have all legal and factual controversies, judicially determined which are agitated or come out from the judgment of lower Court. The reading of the sub-rules (b) and (c) of the said Rule further explains that judgment of the appellate Court has been confined to such framed points for determination hence proper framing of points of determination cannot be denied because in absence whereof there can be no purpose of sub- rules (b) and (c) of the said Rule, resulting in making a Judgment of appellate Court as not- sustainable under the law.
9. Further, it is manifest that learned appellate Judge has not discussed any single piece of evidence brought on record, whereas it is matter of record that trial Court has given findings on issues from page-87 to page-117 on many aspects while referring the documents brought on record by the parties. It is worth to add that there are divergent views on framing the points for determination but there can be no cavil on the proposition that purpose of framing the 'points for determination' is nothing but to ensure proper appraisal of the material or legality of judgment, impugned by appellate Court which cannot be expected in absence of 'points for determination' as it is the 'point of determination' the reason (s) whereof would compel the appellate Court to justify it conclusion with reference to point of determination. Worth to add here that appeal is the continuity of lis where whole case becomes opens therefore, mere use of phrase 'failure of pointing out an illegality' would not serve the purpose of Order XLI Rule 31, CPC. The scope of appeal is much broader than that of revision. The Judgment of appellate Court would not qualify the meaning of judgment where it (judgment) appears to be lacking in reasoning to its conclusion because the judgment of appellate Court can stamp the judgment of lower Court but with reasons while responding to grounds on which decree was attacked. However, it is the revisional jurisdiction which compels the revisional Court that it must examine whether illegality or irregularity or excess/non-exercise of jurisdiction caused prejudice to the applicant or otherwise. Here it is patent that appellate Court has crossed its limits and has not applied judicial mind. For the sake of arguments if the plea of learned counsel for Respondent No, 6 is taken as true then this would be license for appellate Courts to hold the impugned judgment as legal or illegal only by mentioning that same is in accordance with law or not which, in no way, could serve the purpose and object of Order XLI Rule 31 of the Code rather it would frustrate the whole scheme of legislature while putting such mandatory provisions of law in the Court.
10. In view of above, instant revision application is accepted. Case is remanded back to learned appellate Court for decision in accordance with law. It is made clear that appellate Court shall pass a fresh judgment in accordance with law while providing opportunity of hearing to both the parties, within two months of receipt of this order.