RAJA SHAKEEL AHMAD, J. This revision petition has been directed against the judgment/decree dated 15.10.2018 passed by the learned District Judge Ghizer in C.F.A. No. 59/2015, whereby the learned first appellate Court decreed the suit in favour of plaintiff by reversing/setting aside the judgment/decree dated 21.09.2015 passed by the learned Civil Judge 1st Class Gupis/Yasin in Civil Suit No. 89/2010.
2. Concise track of dispute between the parties as per plaint is that plaintiff filed a Civil Suit bearing No. 89/2010 against the defendants for declaration and permanent injunction on suit land measuring 6 Kanals situated at Taus Yasin on the plea that he is the exclusive owner of suit land (given boundaries in head note of the plaint) and intended to construct compound wall, but the defendants are trying to interfere in the construction work. The defendants contested the suit and denied the averment of the plaint by filing their parawise written statement against the plaint and claimed that the disputed property was purchased by the father of the defendants from the father of the plaintiffs for the consideration of 20000/- (twenty thousand rupees). The disputed land is under the possession of the plaintiffs from long ago as owner of the said land. In the light of divergent pleadings of the parties, the learned trial Court framed 16 issues to decide the matter as per evidence. The issues framed by the learned trial Court are reproduced as under:-
1. Whether in the year 1977 Khalisa land divided among the residents of Yasin, under which 6 Kanals land came to the share of the plaintiff mutated in his favour in the record of revenue?
OPP
2. Whether the suit land is in possession of the plaintiff since 1977, having being owner? OPP
3. Whether the defendants has illegally interfered in the suit property in the absence of the plaintiff? OPP
4. Whether dispute in respect of the disputed land subjudice between the parties before the Revenue Office? OPP
5. Whether the defendants have illegally and against the rights of the plaintiff interfering over the suit land? OPP
6. Whether father of the plaintiff has no power to transfer the subject land without the consent of the plaintiff? OPP
7. Whether compromise in respect of the subject land made in the absence of the plaintiff? OPP
8. Whether the cause of action accrued to the plaintiff to file the present suit? OPP
9. Whether the suit is within time? OPP
10. Whether the suit is not maintainable under Order VII, Rule 11, C.P.C.? OPD
11. Whether description of the suit land has not disclosed in the plaint? OPD
12. Whether the suit is hit by the law of estoppel? OPD
13. Whether the suit land came to the share of the father of the plaintiff, who sold the same to the defendants against a consideration of Rs. 20,000/-? OPD
14. Whether the defendants are in possession of the subject land and their houses are over there? OPD
15. Whether on the demarcation of Halqa Patwar the defendants made main hole over the disputed land? OPD
16. Whether dispute between the parties in respect of the subject land was settled by the Ulma panel? OPD
3. After completion of trial, recording of statements of witnesses and find arguments advanced by the learned counsel for both the parties, the learned trial Court decided the matter discussing each and every, issue comparing with evidence and dismissed the suit. The findings of the learned trial Court are reproduced as under: "In view of above my issue-wise findings, the suit of the plaintiff is hereby dismissed as meritless with no order as to cost."
4. The respondent/plaintiff felt aggrieved from the findings, preferred an appeal bearing number CFA No. 59/2015 before the District Judge Ghizer. The learned first Appellate Court Limited himself on three points for the purpose of decision i.e. I. Whether the father of appellant was owner in possession of suit property who has sold it to the respondents for consideration of Rs. 20000/- through a lawful sale transaction ?
II. Whether the appellant is exclusive owner of the suit property and his father was not competent to sell it? Hence the sale transaction claimed by the respondents is void ab-initio?
III. Relief.
The learned first appellate Court, after hearing the arguments and going through the available record, set aside the judgment/decree of learned trial Court by reversing the same and decreed the suit as prayed for in favour of plaintiff. The operative part of the impugned judgment/ decree dated 15/10/2018 is reproduced as under: "Keeping in view, whatever discussed herein above, I am of the opinion that the learned trial Judge has arrived a wrong conclusion. The impugned judgment and decree is set aside. The same is reversed. The suit of plaintiff is decreed as prayed for against the respondents declaring him owner of suit land. The respondents are perpetually injuncted from interference with suit property. Parties to bear their own costs. Record of trial Court be remitted along with an attested copy of this judgment. This file be consigned to record room after 'completion."
5. Against the said impugned judgment/decree dated 15/10/2018 passed by the learned first appellate Court/ Learned District Judge Gilgit, the petitioners/defendants filed the instant revision petition for setting aside the same. The prayer part of memo of the petition is reproduced as under:- "It is, therefore humbly prayed that by accepting this revision petition the impugned judgment/decree passed by learned District Judge Ghizer dated 15/10/2018 may kindly be set aside and the judgment/decree of the learned Trial Court may kindly be maintained to meet the ends of justice."
6. The learned counsel for petitioners/defendants contended that the judgment/decree passed by the learned first appellate Court is contrary to law and based on conjectures and supposition, which is result of misreading and non-reading of evidence adduced by the parties. The petitioners/defendants are in possession of suit land from the date of purchase and constructed residential house on the suit property. The learned first appellate Court failed to appreciate the evidence and versed the judgment/decree passed by the learned trial Court. The impugned judgment/decree passed by the learned trial Court is against the facts and law. The learned first appellate Court has failed to appreciate the fact in issue involved in the case in hand and passed the impugned judgment/decree in hasty manner on the basis of flimsy grounds. The learned District Judge Ghizer failed to apply his judicious mind while passing the impugned judgment/decree and committed material illegality and irregularity by reversing the judgment/ decree passed by the learned trial Court. The impugned judgment/decree is perverse, absurd and ambiguous. The learned trial Court while giving its findings, disregarded the mandatory provisions of Order XX, Rule 5, C.P.C., thereby committed material irregularity in exercise of jurisdiction. The learned District Judge Ghizer failed to exercise jurisdiction vested in it and exercised his jurisdiction not so vested in it. The learned counsel further argued that the judgment/decree dated 21/09/2015 passed by the learned trial Court is in accordance with law and facts. The learned trial Court decided the matter and rightly dismissed the civil suit finding it meritless. The plaintiff badly failed to prove his averments before the learned trial Court. Finally, the learned counsel for petitioners/defendants prayed for setting aside the impugned judgment/ decree dated 15.10.2018 by maintaining the judgment/decree dated 21.09.2015 passed by the learned trial Court.
7. On the other hand the learned counsel for respondent/plaintiff vehemently opposed the contention of learned counsel for the petitioners/ defendants and contended that the learned District Judge Ghizer has rightly set aside the judgment/decree passed by the learned trial Court.
The land in dispute came in the share to the father of respondent/ plaintiff, while distribution of barren land in the year 1977. The petitioners/ defendants have badly failed to prove the sale of said land by the father of respondent to the petitioners. The learned Civil Judge Gupis Yasin has wrongly dismissed the suit of respondent, which is set aside by the learned first appellate Court.
Lastly the learned counsel prayed for dismissal of the petition by maintaining the judgment/decree passed by the learned first appellate Court.
8. I have heard the arguments at length advanced by the learned counsel for the parties and perused the record of the case with able assistance of their counsel.
9. From perusal of plaint of the respondents/plaintiffs it transpires that the plaintiff has filed the Civil Suit bearing No. 89/2010 against the defendants for declaration and permanent injunction on suit land measuring 6 Kanals situated at Taus Yasin on the plea that he is the exclusive owner of suit land, the suit land is under his possession and utilization and on some portion of suit land is developed by him and intended to construct compound wall, but the defendants are trying to interfere in the construction work. The respondent/plaintiff was bound to prove his title and possession on the suit land to obtain an execute able decree for determination of his title and possession on the suit land the trail court frame issues Nos. 1 and 2 which are most important for determination of dispute between the parties, the issues being most important, are reproduce hereunder.
1. Whether in the year 1977 Khalisa land divided among the residents of Yasin, under which 6 Kanals land came to the share of the plaintiff mutated in his favour in the record of revenue?
OPP ?
2. Whether the suit land is in possession of the plaintiff since 1977, having been owner? OPP The plaintiff adduced 4 witness and Exh-p/2 to prove the issue Nos. 1 and 2. I have gone through the statements of PWs and contents of Exh-P/2. The learned trial court minutely discussed the issues and recorded his findings on the issues and decided both the issues in negative, which is sound and correct appraisal of evidence. The plaintiff in his examination in chief stated that the disputed land was given to him in the year 1977 as his share being head of his house but on the same breath states that his father and brother were also present during partition, if the father of the plaintiff was present during partition of common lands of the yasin then how become the head of his house hold. The plaintiff himself admits that the disputed land in barren and he couldn't develop the same as he left the Yasin long ago and leaving in Gilgit. In cross-examination he answered that at the time of partition Patwari Ismail was present, the said Patwari was examined as DW-1, instead of declaring the disputed land the share of the plaintiff the said DW in his examination in chief deposed that he was Halqa Patwari and in presence of the 15 person he demarcated Plots in Taus Dass Yasin, after then he went to Gilgit for a training when he came back a dispute arise between one Namely Maska and Father of Defendants. He went on spot the father of the plaintiff was called he identified the boundary of his land and said that I have sold the disputed Land to the Father of the defendants. In cross-examination he categorically denied of any list prepared by the people and presented to him.
10. I have also perused the Exh-P/2 which is a list of shareholders of Taus Dass Tehsil Yasin, the document is not Shajra Akas prepared by the revenue officials, neither it is signed nor rectified by the revenue official, the same couldn't be relied as piece of evidence because the document on face of it is very vague, the parentage of people in the list is written as un known, how a prudent mind could believe that in a document prepared by the revenue official in presences of the persons amongst whom the land is distributed during partition reflected the name of parent of shareholder as un known; hence it transpires that the above Exh is not prepared by the revenue officials and it could be safely inferred that the same is prepared just to substantiate someone's substance. The PW 4 Tehsildar Halqa who brought the record before the trial Court where in his cross-examination he categorically admits that in the actual record of the said list the serial Nos 74, 75 is tampered and there is difference between the actual record and Exh-p/2 he also admits that this record is not prepare by the revenue official rather it is submitted by the people themselves. Documentary evidence and oral evidence produced by the plaintiff is not sufficient to prove that the disputed land is given to him and the disputed and is in his possession. The PWs produced by the plaintiff are not from the locality and are relatives of the plaintiff leaving far from the disputed land. The most important thing which should be proud to obtain a declaratory decree was possession, but the plaintiff badly failed to prove that the disputed property remained in his possession since 1977, rather it has been established by the defendants/petitioners the disputed property is under their possession and they have constructed house on the disputed property.
11. The learned 1st Appellate Court while deciding the appeal have opted a unique procedure which is totally against the settled principle of law that "the plaintiff has to prove his case beyond any doubt", and also against the golden rule of law that "he who alleges he must prove"
12. For the purpose of disposal of the appeal the learned 1st Appellate Court settled the following points to determine the controversy between the parties.
I. Whether the father of the appellant was owner in possession of suit property who has sold it to the respondents for consideration of Rs. 20000/ through a lawful sale transaction?
II. Whether the appellant is exclusive owner of the suit property and his father was not competent to sell it? Hence the sale transaction claimed by respondent is void ab initio?
III. Relief.
The learned District Judge Ghizer/ 1st Appellate Court failed to apply his judicial mind while framing the points of determination, the actual point of I controversy between the parties which was mandatory to prove by the appellant/ plaintiff were issue Nos. 1 and 2 as discussed in para 9 of this judgment, because in case of findings in negative on the above issues the other issues become irrelevant and the suit cannot be decreed in favour of the plaintiff. The second thing which the learned 1st Appellate Court failed to comply was the findings on issues Nos. 1 and 2 given by the learned. Trial Court were not controverted by the 1st Appellate court which was mandatory upon the Appellate Court under Order XLI, Rule 31, C.P.C. This rule is mandatory in nature and should be followed by the Appellate Court to decide the matter in accordance with law. It needs no reiteration that the statutory right of appeal confers a right of rehearing the whole dispute unless expressly restricted and the appellate court has to consider the controversy entirely afresh both as regard to facts and law. An appellate Judgment should state the points arising from the determination. The term "points for determination" refers to all important questions involved in the case. It is necessary for the appellate court to record the points for determination so that it can be determined whether the Court has dealt with all the points. The Appellate Court is required to give its decision with regard to each point, which should be self-explanatory, illuminative and in the nature of speaking order. Where the provision of Order XLI, Rule 31, C.P.C. is not complied with, the judgment is not accordance with law and amounts to a bad judgment in the eye of law. The perusal of the judgment of the learned appellate court show that the appeal was dealt with in very cursory manner. Neither issues wise findings were given by the learned appellate court nor points for determination as envisage under the Order XLI, Rule 31, C.P.C. were set out, which frustrated the very purpose of the provision of Order XLI, Rule 31, C.P.C.
13. For the reasons recorded above, I find that the impugned judgment of the learned District Judge Ghizer is violative of the provision of Order XLI, Rule 31, C.P.C. and cannot be allowed to remain intact.
14. In the light of above discussion the instant revision petition allowed as prayed for by setting aside the impugned judgment/decree dated 15.10.2018 passed by the learned District Judge Ghizer in C.F.A. No.59/2015 and maintained the judgment/decree dated 21.09.2015 passed by the learned Civil Judge 1st Class Gupis/Yasin in Civil Suit No. 89/2010. Parties to bear their own costs. File