SAFDAR SALEEM SHAHID, J. This civil revision has been directed against the judgment and decree dated 27.03.2015, passed by learned Civil Judge, Khanpur vide which, suit for declaration filed by the respondents was decreed and the judgment and decree dated 25.03.2016, passed by learned Additional District Judge, Khanpur, whereby, the appeal filed by the petitioner assailing the above said judgment and decree has been dismissed.
2. Brief facts of the case for decision of this revision petition are that the petitioner was only son of Khair Muhammad deceased who during his lifetime voluntarily got mutated his agricultural land to the petitioner through gift mutation No.139 situated in Chak No.63/P and gift mutation No.298 of Mouza Moosa Kanju, Tehsil Khanpur attested on 17.03.1983 which was accepted by the petitioner and possession was handed over to the petitioner. Said predecessor of the parties did not challenge the said gift mutations in his lifetime but after his death, respondent No.1 challenged both gift mutations by filing suit for declaration, in which suit, respondents Nos.2 and 3 were impleaded as defendants but afterwards, they were rearranged as plaintiffs, by alleging that her father was paralyzed who was living with the petitioner, hence, he was under the influence of the petitioner and she sought 115th share out of the estate of her father. The petitioner through filing his written statement, rebutted the stance of respondent No.1, whereas, respondents Nos.2 and 3 (who had been later on transposed as plaintiffs) submitted their joint written statement. Afterwards; respondents Nos.2 and 3 were transposed as plaintiffs and they submitted their yet another amended plaint. Out of divergent pleadings of the parties, following issues were framed;-
1. Whether the suit is time barred? OPD
2. Whether the suit is undervalued for the purposes of court fee and jurisdiction? OPD
3. Whether the suit is vexatious and the defendant is entitled to special costs? OPD
4. Whether the plaintiffs are estopped to file this suit by their own words and conduct? OPD
5. Whether the impugned mutations of gift (Tamleek) Nos.139 and 298 of even dated 17.03.1983 are illegal, void, against law and facts, collusive and being based on fraud and misrepresentation, are ineffective qua the rights of the plaintiffs and are liable to be cancelled and hence, the revenue entries are liable to be rectified in favour of the plaintiffs accordingly? OPP
6. Whether the ancestor of the parties Khair Muhammad the donor, has not transferred the possession of the suit property to the defendant under the impugned mutations of gift? If so, its effect? OPP
7. Whether the impugned mutations in favour of the defendant are hit by Martial Law Regulation No.115? OPP
8. Whether the plaintiffs are entitled to get decree for declaration as prayed for? OPP
9. Relief.
After that; both the parties produced their respective evidence. The respondent/ plaintiff in support of their version produced Sher Muhammad identifier as PW-1, Muhammad Hanif as PW-2, Ghulam Ali as PW-3, Ahmad Yar her attorney as PW-4 and Mst. Haseena Bibi (plaintiff No.3) appeared as PW-5. In documentary evidence, they tendered; Ex. P-1 Copy of power of attorney dated 26.05.1991.
Ex.P-2 Copy of Jamabandi for the year 1989-90 Khata No.2.
Ex.P-3 Copy of Jamabandi of the year 1989-90 Khata No.19.
Ex.P-4 Copy of Jamabandi for the year 1987-88.
Ex. P-5 Copy of mutation No.139 dated 17.03.1983.
Ex.P-6 Copy of mutation No.298 dated 17.03.1983.
Ex. P-7 Affidavit of witness Abdul Karim.
In contrast; petitioner/defendant produced Allah Ditta as DW-1, he himself appeared as DW-2, Muhammad Afzal Shah Record-keeper as DW-3, Ghulam Haider Patwari as DW-4, Muhammad Aslam Lukhwera Tehsildar as DW-5. Abdul Rehman as DW-6 and Abdul Kareem attesting witness of the mutation as DW-7. In documentary evidence, he produced; Ex.D-1 Copy of mutation No.139 dated 17.03.1983.
Ex.D-2 Copy of mutation No.298 dated 17.03.1983.
Ex.D-3 Copy of mutation No.139 (Pert Patwar).
Ex.D-4 Copy of mutation No.298 (Pert Patwar).
Ex.D-5 Copy of mutation No.292 dated 17.03.1983.
Ex.D-6 Copy of mutation No.295 dated 17.03.1983, Ex.D-7 Copy of mutation No.293 dated 17.03.1983.
Ex.D-8 Copy of mutation 1 ).138 dated 06.11.1982.
Ex.D-9 Copy of mutation No.296 dated 14.04.1983.
Ex.D-10 Copy of Jamabandi for the year 2011-2012.
Ex.D-11 Copy of Jamabandi for the year 2008-2009.
Ex.D-12 Copy of Khasra Girdawari, Kharif 2009-2013.
Ex.D-13 Copy of Khasra Girdawari Kharif 2012-2013.
After recording evidence of both the parties, learned trial court decreed the suit of respondents vide impugned judgment and decree dated 27.03.2015. Being dissatisfied with the judgment passed by the learned trial Court, the petitioner preferred appeal before of the first appellate court which was dismissed vide impugned judgment and decree dated 25.03.2016.
3. Counsel for the petitioner argued that the learned Additional District Judge has not complied with the rules for passing the judgment in appeal and has clearly violated the rules framed under Order XLI, C.P.C. The court has not passed the judgment on each issue. Whereas; the evidence of the parties also has not been discussed to finalize the issues framed by the learned trial court.
Counsel argued that it is a case of remand to the learned first appellate court to re-write the judgment in view of Order XLI, C.P.C. for recording the judgment by the first appellate court. Further adds that both the learned courts below have not determined as to when Khair Muhammad predecessor has died and also not considered the statement of Allah Ditta DW-1 who categorically stated that Khair Muhammad died about 07 years after attestation of impugned gift mutations which were sanctioned on 17.03.1983, whereas, the suit was filed by the respondents on 02.09.1991.
Respondent No.1 did not appear in the witness box in support of her claim, whereas, her husband Ahmad Yar had no direct knowledge about the facts involved in the case. In contrast; petitioner himself appeared as DW-2 and verified the gift mutations and his statement was not rebutted by the respondents. PW-4 Ahmad Yar husband of respondent No.1 is an interested witness, whereas, statement of PW-5 Mst. Haseena respondent No.3 is not in consonance with the averments of the plaint and statement of PW-4 and even she had admitted the version of the petitioner in her joint written statement, but afterwards by shaking hands with the respondents, she got recorded her statement in favour of respondent No.1. Further adds that; no particular fraud was pointed out by the respondents while challenging the gift mutations. Question of misrepresentation and non- delivery of possession has not been challenged and proved. Adds that; the deceased predecessor was not suffering from any disease and he was not mentally paralyzed. The entries of mutations are duly incorporated in record of rights.
4. Counsel for the respondents, on the other hand, resisted the arguments and argued that the suit property is agricultural land and still situated in joint Khata so, the question of physical possession is immaterial. The claim of the respondents is based on inheritance and there arises no question of limitation in such cases. The impugned revenue entries were against the law and facts and same were based on fraud. The petitioner has failed to prove that how and in what way the suit of the respondents was false, frivolous or vexatious. The respondents have examined one Sher Muhammad as PW-1 who has stated that the deceased donor had never made any offer to gift the suit property to the petitioner and that he had not identified him at the time of attestation of impugned mutations before the revenue officer, whereas, husband of respondent No.1 appearing as PW-4 deposed that the deceased was his cousin and father in law who died 03 years prior to filing the suit, he was ill from 10/11 years and his eye-sight was weak and he was unable to walk, hence, he was at the mercy of the petitioner, whereas, the respondents never transferred the suit property to the petitioner through impugned mutations of gift.
5. Arguments heard. Record perused.
6. Firstly; I would like to reproduce Order XLI, Rule 23, C.P.C. which is regarding the remand of case by the appellate court as under;- "Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct that issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with direction to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand."
It is settled principle that remand should not be ordered lightly where the case can be decided by the appellate court itself. Where the evidence on record is sufficient to dispose of the case by the appellate court, the case should not be remanded. Reliance is placed on "Paramatha Nath Chowdhury and 17 others v. (1) Karim Mondal, (2) Ismail Mondal, (3) Baju Mondal alias Hagura Mondal and _.(4) Dukha Mondal" (PLD 1965 SC 434), "Fateh Ali v. Pir Muhammad and another" (1975 SCMR 221) and "Nasir Ahmad and another v. Khuda Bakhsh and another" (1976 SCMR 388). If the comprehensive issues have been framed and the evidence has been led on those issues, the learned trial court had decided the issues while appreciating the evidence on record and even if the first appellate court, has not mentioned regarding the evidence on record but has appreciated the issues in view of the already recorded reasons recorded by the learned trial court. It will not be a case of remand because the reasons already had been recorded were found correct by the first appellate court and on the same reasons, the first appellate court has dismissed the appeal or revision filed by the said side. The grievance of the petitioner is not that the learned trial court has not properly framed the issues or has not appreciated the evidence by the learned trial court. The grievance of the petitioner is that the learned first appellate court has not mentioned the evidence of the parties on record whereas, this is not the case in this proposition.
The learned first appellate court has discussed all the relevant factors which are available in the evidence of the parties even the documents have been discussed by the learned first appellate court while deciding the point of controversy in between the parties. The requirement of law is that the appellate court is to decide the controversy in between the parties and there is no need to decide each and every issue by the appellate court. This is also settled principle that where evidence on record is sufficient, appellate court may determine the case finally and there is no need to remand the case to the learned trial court.
7. The word judgment has been defined in section 2(9), C.P.C. which means statement given by the judge on the grounds of a decree or order. It means judicial decision of a court or of a judge, it need not necessarily deal with all matters in issue in the suit, it- may determine all those issues decided of which, the effected side adjudicating all the matters in the controversy or result in final disposal of the suit. Essential element of judgment is that there should be statement of grounds for decision. The most important ingredient of a valid judgment is the result, reasons or grounds of the decision because the validity of the judgment is to be seen from the reasoning and the same is to be challenged by the aggrieved party against which the reference to the reason. It is, therefore, necessary for the learned trial court to decide each and every issue. Whereas; it is not required by the appellate court to record finding issue-wise. And it is sufficient for the court to deal with all issues as were matters for disposal of the controversy accepting those abandoned by the appellants. The appellate court recording its findings on all the points raised before it without discussing the issue separately cannot be said to have committed any illegality or error. Reliance is placed on "Naimat Khan and others v. Hamzullah Khan and others" (2006 CLC 125) and "Afsar Zaman and others v. Ayub Khan and others" (2007 YLR 818). As the first appellate court has decided issues Nos. 5, 6 and 7 jointly whereas the first four issues were regarding the legal aspect of the proposition and have answered through the judgment. Therefore; this is not a case for remand. The appellate court has critically examined all the evidence on record i.e. oral as well as documentary evidence and has recorded the judgment on the basis of the same. Therefore, the contention of the petitioner is that it is a case for remand under Order XLI, Rule 23, C.P.C. to the first appellate court to record the judgment again is not sustainable in the eye of law.
8. Perusal of the impugned judgment passed by the learned trial court, it reveals that the learned trial court had given its findings on the issues framed in the suit, hence, mandatory provision of Order XX, Rule 5, C.P.C. has been fulfilled, which says; "In suits in which issues have been framed, the Court shall state its findings or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit."
Real controversy between the parties;
1. Legal Issue on legal aspect. Jurisdiction, court fee, limitation.
2. Issues on facts as per prayer. Matters question on issue on fact of law, limitation also included in the same. Every issue to be settled down by the trial court in view of the evidence on record.
9. The appellate court while deciding the points in controversy requiring determination formulated in a particular form and addressed to such points and recorded findings thereon. Requirement of recording findings issue-wise by the appellate court is not mandatory and every finding without discussing issues separately. is not illegal. Appellate court has rendered its independent findings on each and every issue, hence, the appellate court in the present case has appraised the mandate of law thus, the impugned judgment has qualified to be called "judgment" in the eye of law.
10. The points of determination in this case are that said 03 mutations sanctioned on 17.03.1983 were illegal; Whether there was any element of fraud? ii- Whether mere possession can be made a ground for a valid gift when one of the claim of property is also residing in the same house with the donor? iii- Whether the said mutations come within the definition of closed and past transaction in view of the conduct of the respondents? iv- If the witnesses of said mutations are not produced, what is the effect?
In view of Ex.P-7; although, Abdul Karim whose signatures are available on Ex.D-5 who filed the affidavit which is Ex.P-7 that neither his signatures are there nor he thumb-marked or signed over any mutation being Pattidar of the Mouza. In case, only affidavit is there but neither it was sent for comparison on the request of the either party, what will be its effect? As fraud has been alleged, the petitioner is beneficiary and it was the responsibility of the petitioner to prove that whether gift mutation was validly sanctioned when affidavit of Abdul Karim came on the surface, it was the duty of the petitioner to request the court to send the mutation for comparison of the signature and thumb mark of said Abdul Karim. However, said Abdul Karim has not appeared as witness from the respondents' side, but it will have no effect as originally it was the duty of the petitioner to prove validity of said mutations.
11. This is not a case of past, and closed transaction, because the identifier of the impugned mutations had filed affidavit (Ex.P-7) that neither he identified the donee nor he signed or thumb marked the document Ex.D-5. The petitioner was the beneficiary of the document and as per principle laid down for such proposition, the petitioner was under obligation to prove the validity of those documents. The petitioner did not file application for production of said witness and he also did not file the application to summon said Abdul Karim as CW in order to verify the said document, or to disprove affidavit Ex.P-7. Even the petitioner did not file application for comparison of the signatures on the said document; with any admitted signature or thumb mark of said Abdul Karim. There was no objection placed when the document Ex.P-7 was exhibited in evidence. The respondents are real sisters of the petitioner. Admittedly; they have the privilege for being Parda Nasheen ladies. The lady appeared in witness box also claimed that she is illiterate and that is also admitted fact on record. There are two other important factors on the legal and factual sides which cannot be ignored. Why the lady was detained in the house. She was recovered on the order of the court. There was no explanation for that with the petitioner and inference can be drawn that she was illegally detained, in order to avoid that the lady could file or agitate her claim.
12. Second factor is on the legal side. The impugned mutation was sanctioned on the basis of gift.
As the ingredients of a valid gift are;- a) Offer. b) Acceptance. c) Delivery of possession.
The impugned mutation was sanctioned on 17.03.1983 but the document Ex.P-5 and Ex.P-6 mentions the names of the respondents in the column of owners. Ladies being owner will consider to be in possession. The proof of delivery of possession under the said mutation have not been brought on record. The witnesses of revenue department who could have verified those factors had not been got examined in the witness box. The witnesses of petitioners are inter-se related to the petitioner. In absence of the best possible evidence regarding proof of delivery of possession, it will be considered that the third important ingredients for a valid gift was not established by the petitioner and inference is drawn that if such a witness or document is produced before the court, it could not have supported the version of the petitioner. So, valid gift is not proved. Both the courts below have examined the witnesses from both sides and also examined the documents produced by the parties. So, this was not a valid gift and it could not come within the meaning of past and closed transaction because for that the beneficiary has to prove that all three ingredients support him under the circumstances, the petitioner cannot have the benefit of the weaknesses of the respondents' evidence. Because the ladies have claimed their Sharai right. They have been deprived through gift mutations. It is not the case of the petitioner that he purchased the land or through sale mutations, he accrued the right of ownership.
13. The statement of the petitioner that he served the deceased father and his sisters (respondents) did not did so, is against the logic and if such plea was taken by the petitioner, he was under obligation to prove it. Whether his sisters were disobedient to their father or there was any reason to deprive them from their legal right. To prove this; no evidence was produced by the petitioner. If this particular plea had not been taken, then this could not be taken into consideration.
But since the petitioner had taken this particular plea, then he was under obligation to prove the same.
14. Regarding limitation; both the courts below have categorically examined the evidence of the parties and answered the same with reasoning, which is in accordance with law. All other issues have been critically examined and settled by the courts below.
In view of above, petitioner is unable to point out any illegality or irregularity in the impugned verdicts. There was no jurisdictional error in the impugned judgment and decree passed by the learned courts below. All the evidence and the record have been properly appreciated by the learned courts below. There was no element of misreading or non-reading of evidence. The law was properly appreciated. There is no force in this revision petition, the same is dismissed.