MOHAMMAD AZAM KHAN, C.J.---The captioned appeal by leave of the Court arises out of the judgment of the High Court dated 12.10.2011, whereby second appeal filed by the appellants, herein, was dismissed.
2. The appellants filed a suit for perpetual injunction against Mian Muhammad Sarfraz and others in the court of Sub-Judge Fatehpur Thakyala on 29.9.1998, alleging therein that the land measuring 7 Kanal 2 Marla, falling under survey No,421, comprising Khewat No,91, Khata No,269, is in their possession and they have constructed houses over the land. The defendants may be refrained from interfering in their possession. Mst. Hassan Bano and others filed a counter suit against Mst.
Sakala Bibi and others for declaration and possession of the suit land. The trial Court decreed the suit filed by the plaintiffs-appellants and others and also issued a decree to the extent of possession of the house in the counter suit. Mian Muhammad Sarfraz and others filed an appeal against the judgment and decree of the trial Court. The District Judge vide judgment and decree dated 16.6.2008 accepted the appeal to the extent of land measuring 2 Kanal 9 Marla and maintained the decree of the trial Court to the extent of 4 Kanal 9 Marla and maintained the decree of the trial Court to the extent of 4 Kanal 13 Marla bearing survey No,421 while the other suit filed by Mst. Hassan Bano and others was dismissed. The appellants filed an appeal in the High Court. The High Court dismissed the appeal through the impugned judgment and decree dated 12.10.2011.
3. Ch. Kamran Tariq, Advocate, counsel for the appellants, submitted that the judgment of the District Judge is not a judgment in the eye of law. The District Judge failed to record the judgment issue-wise. The High Court concurred with the District Judge without adverting to the record and relevant law. It was enjoined upon the District Judge to record findings on each and every issue as it is the requirement of Order XLI, Rule 31, C.P.C. The learned counsel further counsel further argued that the High Court has decided the appeal without hearing the appellants as such it offends the principle of natural justice. He further submitted that the impugned judgment suffers from misreading and non-reading of record.
4. While controverting the arguments of the counsel for the appellants, Ch. Ashraf Ayaz, Advocate, counsel for the respondents, argued that the judgment of the High Court is perfectly legal. The First Appellate Court recorded the findings on facts and the High Court concurred with the same. The concurrent findings recorded by two Court below cannot be disturbed by this Court. He submitted that the parties are co-sharer. The matter pertains to partition and the appellants have also filed the partition suit which is pending at the relevant forum.
5. We have heard the learned counsel for the parties and perused the record. It is an admitted position that the parties are co-sharers in the suit land. The appellants filed a suit for perpetual injunction in respect of land measuring 7 kanal, 2 marla, compriing survey No,421, khewat No,91, khata No,269, to the effect that by family partition they are in possession of this land. They have constructed houses and the residing there. The defendants may be refrained from interfering into their possession. Initially the suit was decreed by the trial Court but the District Judge after perusal of the record, dismissed the suit to the extent land measuring 2 kanal 9 marla on the ground that the defendants, respondents herein, are in possession of the land while a decree for perpetual injunction in respect of land measuring 4 kanal 13 marla was passed in favour of the appellant, herein. The two Courts; the District Judge and the High court, recorded concurrent findings of facts after perusal of the record that the defendants are in possession land measuring of 2 kanal 9 marla from survey No,421 and the plaintiffs-appellants are in possession of land measuring 4 kanal 13 marla and they have also constructed a house in the said portion. Law is well-settled that concurrent findings of facts based on record cannot be disturbed. For our own satisfaction that whether the District Judge and the High Court have committed any misreading or non-reading of record or not, we have perused the whole record. The District Judge and the High Court have considered all the evidence adduced by the parties after going through khasra girdawari pertaining to the year 1999 and report of patwari (Ex.DC). Both the Courts below drew the correct conclusion that out of the land falling under survey No,421, the appellants are in possession of land measuring 4 kanal 13 marla and have also constructed houses over it while defendants, respondents herein, are in possession of 2 kanal 9 marla. There is no misreading or non-reading of record.
6. Under Order XLI, Rule 31, C.P.C., it is enjoined upon the first appellate court to formulate points for determination in the appeal. While deciding the appeal, the first appellate Court is not required to record issue-wise findings. All the necessary is that the Court shall apply mind, formulate the points, which are pivotal in the whole case and decide the appeal. If the pivotal point involved in the case is resolved which is sufficient for the decision of whole appeal, then the finding on other points/issues is not necessary. The proposition has been resolved by this Court recently in a judgment titled Muhammad Shaban v. Abdul Rasheed and others (Civil Appeal No,67 of 2011, decided on 27.2.2013), wherein it was observed as under:--- "....The spirit of Order XLI, Rule 31, C.P.C., is that the first appellate court shall formulate the points for determination. It includes all the important issues involved in the case and if the moot point is answered, recording of finding on all issues is not the requirement of law. While dealing with the proposition, this Court in the case reported as Muhammad Riaz v. Muhammad Riyasat and 8 others (2008 SCR 308), observed as under:--- `....The term "point for determination"' refers to all the important issues involving the case but here the moot point is answered, recording of findings on all other issues is not required. The provision in fact provides for recording a judgment keeping in view the pleadings, evidence and points for determination and reasons for deciding the issue. The provisions in fact provide to avoid bald findings of the appellate Court and disposal of the appeals in slipshod manner. This provision doesn't at all provide that every point raised by the appellant or the respondent must be decided by the appellate Court Recently in another case titled Mst. Sardar Begum and 5 others v.
Muhammad Ilyas and another (Civil Appeal No,51/09, decided on 29.11.2012), this Court while recording the judgment, observed as under:-- 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, appellant 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 the 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 considered the whole record. Here we may observed 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. We have minutely perused the judgment of the District Judge. Although the District Judge has not recorded issue-wise findings but the District Judge while resolving the controversy applied its mind and resolved the pivotal question involved in the case. All the relevant points at is to have been resolved by the Court, The judgment is in accordance with the provisions of Order XLI, Rule A, C.P.C. There is no illegality in the judgment of the _ District -Judge and the High Court.
8. There is no force in the argument of the counsel for the appellants that the appeal has been decided by the High Court without hearing the appellants. The perusal of order-sheet shows that the arguments by the counsel for the parties have been heard and the appeal has been decided after hearing the counsel for the parties.
The result of the above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to the costs.