' MUHAMMAD ALAM, J.--- Judgment/Order dated 28-09-2013 passed by the learned District Judge Ghizer and order/decree dated 28-10-2011 or 18-10-2011, passed by the learned Civil Judge Punial/Ishkoman, has been challenged through this petition. Through judgment/order dated 28-10- 2011, on Civil Suit No.91/2004, the learned Civil Judge dismissed the suit of the petitioner/plaintiff, and feeling aggrieved from the same, petitioner/plaintiff filed appeal (CFA No.26/2011) which also was dismissed through impugned order dated 28-09-2013. Hence this petition.
2. Petitioners/plaintiffs and respondents filed suit (C.S.IB No.42/1995), entailing to a compromise decree dated 15-05-1997. Petitioners/plaintiffs were among the 79 persons, arrayed as plaintiffs, of Civil Suit No.42/1995. Soon after the compromise decree, an execution petition (Execution No.17/2002) was filed and the representatives of the 79 decree holders/plaintiffs of said suit their share in the suit land through their representatives. After obtaining the shares of thepetitioners/plaintiffs, the representatives of the decree holders/plaintiffs of Execution Petition No.17/2002 did not hand over the share of the petitioners/plaintiffs to them. So petitioners/plaintiffs had to file Civil Suit No.91/2004. The learned trial court dismissed the said suit holding that:-- "Keeping in view my findings on issues Nos.2, 3, 7, 10, 12 and 15, this suit stands dismissed with costs."
' On appeal (CFA No.26/2011), the learned District Judge dismissed the appeal holding that:-- "For what has been discussed above, I am of the considered view that the impugned judgment and decree dated 28-10-2011 passed by the learned trial court is unexceptionable and no interference is called by this court. This appeal is, therefore, dismissed ..................................................
3. I have gone through the file and have heard learned counsel for parties. Keeping in view the importance of the case, I have thoughtfully considered the arguments of the counsel for parties.
The case in hand has its own very peculiar circumstances. In the case in hand, the admitted state of affairs, apparent in the light of trial proceedings of the suit in hand, read with juxtaposition of the proceedings of Civil Suit No.42/1995 and execution proceedings of Execution Petition No.17/2002, operate very important role in coming to a correct conclusion. I have gone through the list of plaintiffs filed in Civil Suit No.42/1995. Names of the petitioners/plaintiffs appeared in serial Nos.37, 69, 70, 71 and 76 of the said list. The compromise dated 15-05-1997 arrived at between the parties to Civil Suit No.42/1995 is also not disputed. I have gone through the paras Nos.3 and 4 of parawise written statement of the written statement filed in the suit in hand. Contents of said paras are very important wherein respondents/ defendants have admitted the averments of the petitioners/plaintiffs made in the plaint. A very important aspect of the case in the given circumstances is that once respondents admitted that petitioners/plaintiffs were among decree holders of Civil Suit No.42/1995, the burden of proof shifted to the respondents to prove that they have handed over share of the petitioners/ plaintiffs to them after obtaining the same through Execution Petition No.17/2002. In my opinion, both the learned trial court and first appellate court have failed to appreciate this aspect of the case. In such a situation, the trial court as well as the first appellate court were duty bound to administer substantial justice by reopening the execution proceedings of Execution Petition No.17/2002 or suit in hand could be decreed if it is proved that respondents/defendants did not hand over their due share to the petitioners/plaintiffs. The trial court as well as the first appellate court were not so helpless that they could not reopen the proceedings of the Execution Petition No.17/2002 or suit in hand could not be decreed.
4. Another aspect of the case is that the learned first appellate court did not give issue-wise findings on all issues, while giving impugned judgment. In my opinion, learned first appellate court was duty bound to give issue-wise findings on all issues while disposing off the appeal and omission to do so amounted to a material irregularity. The conclusive findings of the learned trial court referred above are worth perusal as the same are not based on any evidence of parties. In the conclusive findings, the trial court has based his decision on findings on issues Nos.2, 3, 7, 10, 12 and 15. Let us go through the findings of the learned trial court on said issues. On issue No.2, learned trial court has answered the issue .In negative. From perusal of comments of the learned trial court on issue No.2, it is abundantly clear that the Tehsildar Ishkoman handed over the decreed land of decree under execution of Execution Petition No.17/2002 to the 4 attorneys and not to the petitioners/plaintiffs. What petitioners/plaintiffs have sought through suit in hand is that the said attorneys did not hand over their share to them. The fact that the share of petitioners/plaintiffs was handed over to attorneys of the decree holders/plaintiffs of Execution Petition No.17/2002 is not disputed. So the conclusion of the learned trial court on issue No.2 is wrong and unfounded. Mere fact that share of petitioners/plaintiffs in the decreed land of decree under execution in Execution Petition No.17/2002 is never any kind of proof of issue No.2. On issue No.3, the conclusion of the trial court is really astonishing. While giving findings on issue No.3, the learned trial court has punished the petitioners/plaintiffs simply because they did not file any objection in the Execution Petition No.17/2002 of the trial court. Obviously, the said execution petition was also contested by the representatives of the petitioners/plaintiffs of Civil Suit No.42/1995 and petitioners./ plaintiffs naturally waited for their share from the said representatives till completion of the execution proceedings. On issues Nos.7 and 10, the learned trial court has based his findings on mere conjunctures without referring to any evidence of the parties. In my opinion, issues Nos.7 and 10 must have never been framed, as contents of said issues are admitted in paras Nos.3 and 4 of parawise written statement. Issue No.8 is an important issue and burden of proof is on respondents/defendants and findings of learned trial court on the same are more interesting which are.... This issue is admitted. On issues No.12 and 15, the findings of the learned trial court are again wrong and amounted to punishment of the petitioners/plaintiffs simply because they did not file any objection in the Execution Petition No.17/2002. Burden of proof of both issues Nos.12 and 15 is on respondents/ defendants and the learned trial court has discussed the said issues as if the burden of proof of the same was on petitioners/plaintiffs. Through these issues, the burden of proof to the effect that respondents distributed the land under decree of Execution Petition No.17/2002 without giving share to the petitioners/plaintiffs, was placed on the respondents/defendants and the trial court, instead of discussing evidence of the respondents/ defendants on these issues, took the technical aspect of the case for discussion and have arrived at a very wrong conclusion.
5. Issues Nos.4, 5, 6, 9 and 11 are OPD issues and respondents/ defendants did not press the same, meaning thereby that the same were proved in negative. The learned trial court has failed to note or record the consequences of not pressing the said issues. Learned trial court has impliedly gave findings on issues Nos.13 and 14 but have again failed to give any opinion on the consequences of failure of respondents/ defendants in establishing the said issues.
6. The trial court has mainly based his findings on the legal point that petitioners/plaintiffs cannot file a separate suit for their share in the land decreed under execution in Execution Petition No.17/2002. In my opinion, once share of petitioners/plaintiffs is admitted in the land under decree under execution of Execution Petition. 17/2002, the learned trial court or first appellate court were bound to redress the grievance of the petitioners/plaintiffs either by reopening the proceedings on Execution Petition No.17/2002 or even through a decree in suit in hand. In the peculiar circumstances of the case in hand, a suit is very competent and holding that the same is incompetent is a wrong notion and is result of misconception or mis-appreciation of relevant law on the part of learned two courts below. The learned two courts below have concluded that suit is incompetent but have not mentioned the forum of redressal of the grievance of the petitioners/ plaintiffs. The grievance of the petitioners/ plaintiffs is very genuine in the given circumstances of the case particularly, where the same is admitted in the pleadings of the parties. In this connection, the gist of the claim of petitioners/plaintiffs is very important, which is that they have been deprived of their share in the lands of the decree under execution of Execution Petition No.17/2002.
The question for determination for the courts below is that whether petitioners/plaintiffs have obtained their share in the lands of decree under execution through Execution Petition No.17/2002 or not?
7. In the sequel of above discussion, I hold that the impugned judgments/orders of the two courts below are suffering from material and floating defects. I, therefore, accept this revision petition, set aside impugned judgments/orders of the learned trial court as well as of the learned District Court.
Case stands remanded to the learned trial court with direction to pass fresh orders on the suit after hearing parties or to reopen the execution proceedings of the Execution Petition No.17/2002 or even to pass any other appropriate order but after hearing parties. Petition allowed. Record of the two courts below, if any, be sent back to the said courts. Respondents/defendants to bear costs. This file be consigned to record.