' It is desirable to state briefly certain facts giving rise to this litigation.
2. Plaintiff Qurban Ali (applicant in Civil Revision Application No,12 of 1985 and respondent in Civil Revision Application No,13 of 1985), hereinafter referred to be applicant, claimed to have purchased agricultural land comprising an area of 0-30 ghuntas from S.No,497/6, an area of 1-29 acres from S.No,381, and an area of 1-24 acres from S.No, 498, situated in Deh Hothi, Taluka Lakhi, District Shikarpur from one Illahi Bux, through a registered sale-deed, dated 19-5-1973. He also claimed to have purchased agricultural land comprising an area of 1-15 acres from S.No, 492, an area of 0-27 ghuntas from S.No, 491/2, an area of 1-3 acres from S.No, 480/2, an area of 0-23 ghuntas from S.No,480/1, and an area of 0-19 ghuntas from S.No, 480/3, situated in Deh Hothi, Taluka Lakhi, District Shikarpur, from Shahan and others through a registered sale-deed, dated 7-6-1973. The applicant has claimed possession of the above land in pursuance of said registered sale-deeds. It is his case that the defendants (respondents in Civil Revision Application No, 12 of 1985 and applicants in Civil Revision Application No,13 of 1985), hereinafter referred to be respondents, threatened to forcibly dispossess him on the unfounded assumption that the suit land belonged to them. Since a cloud was cast on the title of the applicant, he filed a Civil Suit bearing No,48 of 1973, for a declaration and permanent injunction against the respondent in the Court of Civil Judge, Sukkur with the following prayer:--
(a) to declare the plaintiff as lawful owner of the land shown in schedule Annexure 'A'.
(b) to issue permanent injunction restraining the defendants from evicting the plaintiff from the said land or interfering with the plaintiff's possession of the suit land.
3. The respondents have resisted the suit by controverting the allegations based on facts.
According to them the suit land did not belong to the said vendors who are fictitious persons. They claimed to be the owners of the said land alongwith others and are in possession thereof. Some legal pleas about the maintainability of the suit were also raised.
4. The parties went to trial on the following issues:--
(1) Whether the persons from whom plaintiff purchased had any saleable right or interest in the suit lands?
(2) Whether possession was delivered to the plaintiff at the time of execution of sale-deed and since then plaintiff is enjoying possession?
(3) Whether defendants are forcibly trying to obtain possession of the suit-lands?
(4) Whether defendants and others are legal owners of the suit-lands?
(5) Whether the Court has no jurisdiction to try the suit?
(6) Whether the suit is maintainable according to law?
(7) Whether the suit is not in proper form?
(8) Whether the suit is bad for non-joinder of neceessary parties?
(9) Whether the suit is barred under section 42 of the Specific Relief Act?
(10) Whether plaintiff is entitled to any relief?
(11) What should the decree be?
5. Since the applicant failed to produce any evidence, the suit was dismissed by learned Joint Civil Judge, Sukkur. The applicant filed Civil Appeal No, 43 of 1976 before District Judge, Sukkur, which was heard by learned IInd Additional District Judge, Sukkur, who vide judgment dated 6-7-1978 set aside the judgment recorded by Joint Civil Judge, Sukkur and remanded the case for re-trial. After the remand the applicant examined himself (P.W-1) and produced the relevant record. He also examined Arbab (P.W.-2) and then closed the side. In rebuttal the respondents examined one of them, namely, respondent No,2 (D.W-1) who also produced the relevant record.
6. On the assessm ent of evidence available on record, both oral as well as documentary, the learned Joint Civil Judge decreed the suit vide judgment dated 7-5-1979. The respondents challenged this judgment and decree in Civil Appeal No,25 of 1979 in the Court of District Judge, Sukkur. In the meanwhile a new `judicial district', viz. Shikarpur, was created and the appeal was transferred to the District Court, Shikarpur, where it was heard by learned Ist Additional District Judge, Shikarpur, who passed a laconic judgment by allowing the appeal partly on merits and also remanding the suit with the following direction:-- "However, the case is remanded back to the lower Court to allow the respondent to prove the saleable right of the vendors who had sold disputed land to him."
' This judgment dated 12-11-1984 is challenged by both the parties who have filed Civil Revision Application No,12 of 1985 and Civil Revision Application No,13 of 1985. By this judgment I propose to dispose of both these revision applications.
7. I have heard Mr. Lal Muhammad, learned counsel for applicant and Mr. Rehmatally Rajput, learned counsel for respondents. I have also gone through the record of this case carefully.
8. It is contended by Mr. Lal Muhammad, learned counsel for applicant (Civil Revision Application No,12 of 1985), that the learned 1st Additional District Judge, Shikarpur, has seriously erred in overlooking the most important fact that the additional issue for which the suit was remanded was already framed, viz. Issue No,1 and which was dealt with and decided by the trial Court, and consequently there was no justification for remanding the case. He has also submitted that the object of remand is not to afford an opportunity to other side to fill up the lacunae. Mr. Rahmatally Rajput, learned counsel for respondents/applicants in Civil Revision Application No,13 of 1985, has assailed the finding of the learned 1st Additional District Judge, Shikarpur almost on the same grounds with an addition that having given a clear finding that the respondents have made out a case on merits, the order of remand of the suit was illegal. He has also submitted that the object of remand was to afford an opportunity to applicants so as to fill the lacunae.
9. The perusal of the judgment which is seriously criticised by counsel from both the sides makes it clear that beside being sketchy, it is a laconic judgment which does not tell the losing party why and how he has lost his case. The learned Additional District Judge after narrating the facts gave a summary of evidence of witnesses alongwith the catalogue of documents produced in evidence and then proceeded to record the finding in the following words:- "The perusal of the evidence of the parties and the documents produced by them show that the respondent has failed to prove his title in favour of the vendors who sold him the disputed land. The appellants have outrightly challenged the title of the vendors who allegedly sold the disputed land to the respondent. The burden lay on the respondent to establish the title of the vendors. The Court has framed such issue as under:-- ' Whether the persons from whom plaintiff purchased had saleable right or interest in the suit land?
In view of my above observations and appraisment of the evidence, I find the appellants have made out the case on merits. Appeal is accordingly allowed. Judgment and decree of the lower Court is set aside. However, the case is remanded back to the lower Court to allow the respondent to prove the saleable right of the vendors who had sold disputed land to him."
10. There is, therefore, good deal of force in the submission made by Mr. Rehmatally Rajput, learned counsel for respondents that since there was sufficient evidence on record adduced by the parties to their entire satisfaction, the learned 1st Additional District Judge, Shikarpur ought to have decided the appeal finally and the order of remand in such a situation was highly improper, specially when the issue No,1 fully contemplated what was for determination of the contentions raised from either side and that no additional issue was called for.
11. Under rule 5 of Order XX, C.P.C. The Court is required to state its finding or decision, with reasons therefore upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of suit. The judgment of first appellate Court does not tell us about the issue or issues on which the finding was recorded. Every point, be it be one of fact or law has to be decided one way or the other. On all these scores the judgment recorded by learned 1st Additional District Judge, Shikarpur cannot be sustained and is set aside.
12. I now proceed to examine the most important point canvassed by Mr. Rehmatally Rajput, learned counsel for respondents as to whether this Court while setting aside the order of remand passed by Additional District Judge is competent to decide the case finally on merits. Admittedly evidence, both oral as well as documentary, is available on record. The trial Court has decided almost all the issues, but there is no finding of first appellate Court on all such issues, and in my view in the absence of any such finding of the first appellate Court, it would be improper to trespass into the field of the appellate Court. My attention is invited to the case of Sher Muhammad and another v. Jamadar Ghulam Ghaus (Represented by Heirs), reported in 1983 SCMR 133, wherein the point in issue was examined in relation to an appeal and was answered in the following words:- "It follows from the words of the law and their further exposition by this Court that power to decide the case finally untrammelled by the grounds taken up in the judgment under appeal is possessed the only limitation on the power being that the evidence on record must be sufficient to enable the appellate Court to pronounce judgment. In this case, issues had been framed in the presence of the parties. They had led evidence on those issues to their satisfaction. The evidence of both the parties had been fully considered and a decision given by the trial Court. There was, therefore, complete satisfaction of the conditions prescribed for the exercise of power by the appellate Court."
13. It may, however, be added that there is marked distinction between a civil appeal and a civil revision. I may usefully borrow an extract from the Law of Civil Procedure by Shaukat Mahmood, Third Edition) to appreciate the difference and scope of the two. At page 630, the learned author states:- "Revision and appeal. Distinction.--Whereas an appeal confers statutory vested right on a litigant which accrues the moment the proceedings in question are instituted, the right of revision is merely a discretionary power to be exercised by the revisional Court according to the circumstances of the case or exigencies of the situation. A person cannot as a matter of right claim the proceedings to be revised. The powers of a Court of appeal are contemporaneous with those exercised by the Court of original jurisdiction. Even when an appeal is dismissed, the appellate Court exercises its jurisdiction. On the other hand, revisional jurisdiction is discretionary, and when an application for revision is dismissed the substantive order is of the lower Court and not the order passed in revision. Secondly, under the general law as for example, section 115, C.P.C. a revision lies only in those cases where no appeal lies. Moreover, powers under section 115 are narrower than those under section 100 of the Code. Revisional powers are exercised in cases where it appears (i) that subordinate Courts have exercised jurisdiction not vested in law; (ii) failed to exercise jurisdiction vested in law: (iii) exercised jurisdiction illegally or with material irregularity. A party cannot be allowed to obtain in revision what he will not be able to obtain in appeal. Therefore, it is not proper for the High Court to entertain an appeal in the guise of a revision."
14. It will not be out of place to mention here that in an appeal the entire matter re-opens. The case of the Province of East Pakistan v. Muhammad D Hossain Mia, reported in PLD 1965 SC 1, is self- explanatory. On the other hand the scope of a civil revision is restricted to the extent mentioned in section 115, C.P.C. Itself.
15. Having regard to the above legal position, I am left with no other option but to remit the appeal for re-hearing. The appeal shall be heard by learned District Judge, Shikarpur himself who will dispose of the same within a period of E three months from the receipt of the R & P.
16. In the result both the revision applications are disposed of in the above terms. The parties are, however, left to bear their own costs.