MUHAMMAD ALAM, J.-- Judgment/order dated 07-12-2010, of the learned Additional District Judge Skardu, has been challenged through this petition. Through impugned order, learned first appellate court dismissed the appeal of the petitioners/plaintiffs. The first appeal, C.F.A. No.10/2004, restoration No.03/2005, was directed against judgment/ order dated 10-07-2014 of the learned Civil Judge Khaplu/trial court passed in C.S. No.27/2001, Remand No.27/2014.
2. Through the suit, petitioners/ plaintiffs have prayed for declaration to the effect that petitioners are entitled to irrigate their agricultural lands through 24 channels from the water of Nallah Kuru.
Petitioners/ plaintiffs have further prayed in the plaint that respondents/ defendants are not entitled to irrigate their lands of Aradas, measuring 599 kanals, from the water of Nallah Kuru. So the suit is apparently for declaration coupled with permanent injunction. After complete trial of the case, learned trial court dismissed the suit and the first appellate court concurred with findings of the trial court through impugned order.
3. I have gone through the record of the case and have heard the counsel for parties at length.
Obviously, a revision petition lies if the grounds embodied in section 115, C.P.C. Existed, justifying the revision petition. I, therefore, reproduce section 115, C.P.C. Hereunder for ready reference:-- "115. Revision. - [(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears - -
(a) to have exercised a jurisdiction not vested in it by law, or
(c) to have failed to exercise a jurisdiction so vested, or
(b) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit].
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4. A very interesting, rather painful, aspect of the case in hand is that the learned two courts below have failed to appreciate the pleadings and evidence of parties regarding the actual dispute between the parties. From plain perusal of heading of the plaint, it is evident that petitioners/ plaintiffs have sought a specific declaration to the effect that they - are entitled to irrigate their lands through 24 channels constructed for flowing water of Kuru Nallah in the said channels. For ready reference, I reproduce the heading of the plaint hereunder:- {{URDU TEXT}} Petitioners/plaintiffs have given further details of the said 24 channels in the firstand second paras of plaint. Written statement of respondents/defendants is worth perusal. In paras Nos.1 and 2 of the parawise written statement, respondents have plainly admitted contents of para No.1 of plaint and have also admitted the existence of 24 channels of the petitioners/plaintiffs. In my opinion, once the admission comes from respondents through their written statement, the trial court is legally bound not to frame any issue on the question admitted in the pleadings. In the case in hand, trial court has framed issue No.9 on the- question admitted in the pleadings. Moreover, once it is admitted that petitioners/plaintiff shave 24 channels from Kuru Nallah and they are entitled to irrigate their agricultural lands through the said channels, the trial court was legally bound to pass a decree to that effect. In the case in hand, neither trial court noted this fact nor the first appellate court took notice ofthe same.
5. Yet another important aspect of the case is that the learned trial court has taken issues Nos.9 and 10 jointly for discussion and has given the following findings:- Issues Nos.9,
10. Burden of these issues are on plaintiffs. Plaintiffs produce Exh-P/D and issue No.10 is admitted. The finding on the same issues does not affect the suit of Aradas. Hence my finding on these issues is in favour of plaintiffs out of the suit.
' The trial court has given his findings on the said two issues in affirmative but dismissed the suit for reasons better known to him. So in view of above factual position, the findings/opinion of learned trial court, dismissing the suit is really astonishing.##TSE# ' Respondents/defendants have admittedly not challenged findings of the learned trial court on issues Nos.9 and 10, so the above reproduced findings have attained finality, and the learned first appellate court also did not bother to decree the suit to that extent.
6. Framing of issues Nos.11 to 14, as OPP, is a wrong practice on the part of trial court as the trial court has framed issues Nos.5 to 8 on the questions embodied in issues Nos.11 to 14. It is also very important to note that issues Nos.5 to 8 are in affirmative while issues Nos.11 and 14 are in negative.
From perusal of judgment/order dated 10-07-2004 of the learned trial court, it is very clear that the learned trial court has based his findings on issues Nos.5 and 7 on mere conjunctures. The learned trial court did not discuss any evidence of the parties while giving findings on issues Nos.5 to 8. I have noted that the learned trial court has simply referred some documentary evidence of the respondents/defendants in the findings on issues Nos.5 to 8. In my opinion, learned trial court is legally bound to discuss the evidence in detail with findings of admissibility, relevancy or otherwise of the evidence of parties in proof and rebuttal of issues Nos.5 to 8. This very aspect of the evidence of parties found neglected or omitted in the findings on issues Nos.5 to 8. For ready reference, I feel it very necessary to reproduce the findings of the trial court on issues Nos.5 to 8, which goes as under:-- Issues Nos.5,
6. Onus of these issues is on defendants. Nature of these two issues are on fact related to the suit, therefore, consolidated into one finding. Defendants produce vide section I of Exh-D/3 and Exh-D/8 in thisregard, which is also support by the Exh-P/A, P/B. Hence my finding on these issues is in favour of defendants.
' Issue No.7. Onus of proof of thisissue is on defendants. Defendants have proved their right of water for the land namely Aradas. It is also admitted that the land of Aradas consist of thousand kanal land. Hence my finding on this issue is in favour of defendants.
' Issue No.8. Burden of this issue is on defendants. Defendants prove this issue through thedocumentary evidenceas Exh-D/3, D/8, D/4. Appeal No.142 which is also support by the decision of Wazir Wazarat in Misc. File No.145. Hence my finding of this issue is in favour of defendants.
7. The first appellate court has passed the impugned judgment without any discussion on each and every issue, and the law governing judgments of the first appellate court has laid down discussion on each and every issue mandatory for the first appellate court. So the judgment/order of the first appellate court is also wrong not only because that the first appellate court omitted to take up each and every issue for discussion but also because of neglecting above pointed flouting defects in the judgment/order dated 10-07-2004 of learned trial court.
8. The actual dispute between the parties is very clear from the averments of para No.3 of the plaint and para No.3 of parawise reply of written statement. In para No.3 of the plaint, petitioners/plaintiffs have very specifically averred that respondents are watering lands of Aradas by extending suit channel No.2. Learned trial court has framed issues Nos.5 to 8 as OPD on the said question. As I have already remarked that I am not satisfied with the findings of the trial court on issues Nos.5 to 8, and similarly, I have deprecated findings of the learned first appellate court also, therefore, I hold that the question, raised in issues Nos.5 to 8, needs to be settled or adjudicated, first by revenue forum. Parties may approach the Civil Court, if any of the parties, felt dissatisfied from the findings of the revenue forum.
9. The above pointed out defects are material and flouting irregularities in the judgment of learned trial court as well as of the learned first appellate court, inviting interference of this court.
10. In the above circumstances, I hold that the petition in hand merits acceptance. . Impugned order of first appellate court and the order of learned trial court are set aside. Suit of petitioners/ plaintiffs decreed to the extent of declaration that petitioners/plaintiffs have right to irrigate their agricultural lands from 24 channels from the water of Kuru Nallah and are also entitled to appoint/ depute their own guard on the suit channels. As to the permanent injunction against respondents, parties are free to move the revenue forum afresh who should decide the dispute of watering of Aradas lands by the respondents. Parties to bear their own costs. File be consigned to record.