MUHAMMAD KAMRAN KHAN MULAKH AIL, J.---This Civil Revision Petition is directed against the Judgments and Decrees dated 24.12.2010 and 28.04 .2011, respectively passed by the Qazi Zhob, Sherani ("trial Court ") and the Majlis-e-Shoora, Zhob ("appellate Court "), whereby , suit filed by the petitioners was decreed and appeal filed thereon was also dismissed (Both referred hereafter as " impugned judgments ").
2. Brief facts of the case are that the respondents filed a suit for "Declaration and Permanent Injunction" averring therein that a suit property (property in dispute) was their ancestral property on the strength of entries in "Aks-e- Shajra Kishtwar " recorded in the year 1952; that in the year 2008, the petitioners started interference in the property in dispute and were intending to forcibly take the possession, when an FIR was also lodged against them; that time and again the petitioners were asked to refrain from undue interference, but no heed was paid. Thus, having no other alternative, an original jurisdiction of the Qazi's Court was invoked by filing the aforesaid civil suit.
That after service of notice, the petitioners entered appearance and contested the suit by way of filing a written statement, on legal, as well as, on factua l grounds. In view of divergent pleas raised by the respective parties, the trial court framed the following issues:- {{URDU TEXT}} Both the parties produced their respective evidence. On conclusion of evidence, the trial court decreed the suit.
The petitioners being aggrieved, preferred an appeal before the Majlis-e-Shoora, Zhob . The learned appellate court in order to ascertain the factual position, appointed a local commissioner for inspecting the site. On receipt of report, the statement of local commission er, was recorded as CW-1, thereafter , the leatned appellate court, after hearing the parties, dismissed the appeal vide judgment dated 28th April 201 1, hence this petition.
4. I have heard the learned counsel for the parties at reasonable length and have also gone through the record, with their able assistance.
Learned counsel for the appellant at the very outset stated that the impugned judgm ents are based on non-reading and mis-reading of evidence, while the appellate court also did not formulate the points as required under Order XLI, Rule 31, C.P.C., nor passed a speaking order , therefore, committed illegality and irregularity . Learned counsel placed reliance on the following judgments: Muhammad Yousaf alias Bala v . Khuda Dad (2004 MLD 1 107).
Ali Hassan v . Sher Muhammad and another (2007 CLC 969 ).
Conversely , the learned counsel for the respondent submitted that the trial court has passed a well speaking order , after discussing each and every issue, which was rightly upheld by the appellate court, while the report of local commissioner also supported the respondent's claim. He while, supporting the judgments of the courts below , urged for dismissal of the petition.
5. On perusal of the case file, it shows that the learned appellate court during pend ency of the appeal, appointed a local commissioner for inspection of the site. The local commissioner appeared as CW-1, who produced his report as EX-C/1-A . However , after going through the judgment of the appellate court, it is observed that the learned court without formulating points for determination and even discussing the evide nce and the report of local commissioner , passed the impugned judgment dated 24th December 2010. The appellate court was bound to formulate the points as envisaged under Order XLI, Rule 31, C.P .C., which stipulates: "Order XLI, Rule 31, C.P.C. 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 that it is pronounced be signed and dated by the Judge or by the Judges concurring therein"
The wisdom of law in requiring mandatorily formulation of the points for determination seems to be the fact that the appellate Court looks at every fact requiring determination and it decides the same by adverting to facts as also law thereon by its findings duly backed by sound reasons. The appellate court failed to formulate points and passed a non-speaking order , rather decided the appeal without giving specific reasons, thus, committed an illegality . The term 'points for determination' refers to all the important questions involved in the case and does not include points which have been abandoned, or which are not necessary for disposal of the case. Similarly , it is necessary for the appellate court to record points for determination, so that it can be determined whether the court has dealt with all the point of dispute involved in the case. Accumulative effect of the afore-referred exercise will render reason, which will ultimately enable the parties either to finally accept the decision or to decide, whether their appeal or revision against the said judgment would be beneficial for them or otherwise.
6. The appellate court chose to appoint a local commissioner and after receipt of the local commissioner's report, objections were also invited and thereafter , the local commissioner was summoned and cross-examined, but neither the report was separately decided , nor it was discussed in the final judgment, so to ascertain whether the decision was passed on the evidence produced by the parties or it was solely based on the report of the local commissioner .
The foregoing reason brings me to an irresistible conclusion that the judgment of the appellate court being defective and not in accordance with the substantive law, followed by the dictum laid down by the Superior Courts, was not sustainable. Last but not the least, whenever the appellate court is seized with the appeal arising out of any judgment and decree of the lower forum, it is always obliged to formulate the points for determination and after resolving the same, shall give explicit reason for conclusion rendered thereon. Therefore, I intentionally refrain myself to render any observations on merit of the case, rather , it is deemed appropriate to remand the case to the appellate court with direction to decide the appeal afresh after formulating points for determination.
7. It is worthwhile to observe here that the appeal in the instant case was decided through the impugned judgment and decree by the Majlis-e-Shoora, Zhob, being appellate court of the Qazi courts. Suffice to note here that the 'Balochistan Civil Dispute (Shariat Application ) Regulation 1976 ,' was promulgated on 5th December 1976 by the Governor of Balochistan in exercise of powers conferred by Clause (4) of Article 247 of the Constitution of the Islamic Republic of Pakistan 1973 , but after promulgation of the 'Twenty-fifth Amendment' Act No. )(XXVII of 2018,'
(25th Amendment), which has altogether omitted the Article 247 of the Constitution, whereas Article 246 has been amended and the Tribal areas mentioned therein stand merged in the respective provinces. The Balochistan Civil Dispute (Shariat Application) Regulation 1976 was promulgated and was extended to the tribal area of Balochistan by exercising the powers conferred under Article 247 of the Constitution, which is no more a part of the Constitution in view of the 25th Constitutional amendment . Thus after newly emerged situation, the tribal areas are no more in existence. Thus, neither the powers conferred upon the President of Pakistan, in respect of 'Federally Administered Tribal Areas' nor upon the Governor of Balochistan, in respect of 'Provincially Administered Tribal Areas' are available, nor these powers can be exercised anymore.
Under such circumstances, this court vide No. 240/RHC-JM/2019, dated 10th October , 2019, for the merged areas in the province of Balochistan has already ordered that all litigations pending before the Qazi's courts and appeals/revisions pending before the Courts of Majlis-e-Shoora exercising jurisdiction under Regulation 1976, stand transferred to the ordinary civil courts constituted under the 'Balochistan Civil Courts Ordinance, 1962 (as amended )'. In the instant case the judgment was passed by the erstwhile Majlis-e-Shoora, Zhob , which being no more in existence has become functus officio , therefore, this case is remanded to the District Judge, Zhob with the direction that after hearing the parties and formulating points for determination, decide the appeal afresh, on or before 31st December , 2019.
The petition stands partly accepted, in the above terms, but with no order as to costs.