JUDGMENT SAYED ZAHID HUSSAIN, J.- This revision petition is directed against the judgment dated 7-11-1995, of the learned Addl. District Judge, Sheikhupura, whereby he dismissed the appeal filed by the petitioner and affirmed the judgment of the learned trial Court dated 27-4-1992, dismissing the suit of the petitioner- plaintiff.
2. The petitioner filed a suit for declaration and injunction before the learned trial Court that he was owner in possession of the land measuring 2 kanals and 4 marlas comprising killa No. 21, square No. 27, situated in village Varn, Tehsil and District Sheikhupura. The case of the petitioner is that a piece of land was required for construction of a primary school in the village where so many persons were inclined and eager to give/donate their land for construction of the same. The petitioner offered 2 kanals of his land whereas the respondent, Mst. Rahim Bibi (deceased) offered one kanal without any consideration and an other one kanal as against the price paid (Rs.335/-) by the village community to her. Since the land of the petitioner was found most suitable for constructing the school, he offered his 4 kanals of land in one block and in return 2 kanals of land belonging to the respondent, Mst. Rahim Bibi, was given to him. It is claimed in the plaint that an agreement dated 27-4-1968 (Exh.PI) was executed to this effect which was thumb marked by Ghulam Nabi petitioner-plaintiff and Mst. Rahim Bibi respondent-defendant. The said agreement Exh.PI was executed in the presence of the witnesses and possession <>s 1 kanals of la nd is said to have been given, to him in pursuance of the same. Accord; lg to the petitioner the arrangement so effected between the parties; remained in still force till the consolidation process commenced in the village in the year 1977 when the respondent-defendant changed her mind at the instigation of the adversaries of the petitioner. Since some litigation had commenced between the parties before the Consolidation Authorities and orders had been passed upto the Board of Revenue, the petitioner also sought annulment of the said orders.
3. The respondent filed written statement and contested the suit denying the execution of agreement dated 27-4-1968 alleging that the same was fictitious and forged. The maintainability/competence of the suit' has also challenged by the respondent.
4. The learned Trial Court framed the following issues arising out of the pleadings of the parties :-
(1) Whether the plaintiff has no cause of action? OPD
(2) Whether this Court lacks jurisdiction to try the suit? OPD
(3) Whether the defendant is entitled to special costs under Section 35-A CPC, if so how much?
OPD
(4) Whether the plaintiff is the owner in possession of the suit property and is entitled to the relief prayed for? OPP
(5) Whether the alleged Iqrarnama dated 27-4-1968 is forged, fictitious? OPD (5-A) Whether the plaintiffs are entitled to the decree for specific performance of contract dated 27-4-1968 if so on what terms and conditions? OPP
(6) Relief.
5. In support of his claim the petitioner produced oral as well as documentary evidence. Exh.PI agreement dated 27-4-1968 was sought to be proved through Fazal Muhammad PW1, one of the witnesses of the agreement. Admittedly the other witnesses of the said agreement and the scribe have expired. The other evidence led by the petitioner was in the form of khasra girdawaris from the year 1970 to 1988 (Exh. P2 to P4 and Exh. P6 and P8) Consolidation Scheme No. 1073 and paracha khatoni Exh. P5. Muhammad Yousaf S/O Ghulam Nabi also appeared as PW2.
6. On the other hand the respondent relied on the orders passed by the Consolidation Authorities.
Exh. Dl to D4 and produced DW1 Khushi Muhammad, DW2 Muhammad Rashid and DW3 Islam Bari.
7. The learned Trial Court took up Issues Nos. 5 and 5-A together and found the agreement dated 27-4-1968. Having not been proved. The reason given for such a finding was that only one marginal witness has been examined by the plaintiff and scribe of the deed had not been produced or the thumb impression got examined by the Finger Prints Expert. Referring to PLD 1990 S.C. 642,. It was held that since the respondent-defendant was a parda nasheen and illiterate lady the onus to prove the execution of agreement dated 27-4-1968 Exh.PI was on the petitioner-plaintiff, which the plaintiff failed to discharge, In view of the finding on Issues Nos. 5 and 5-A, issue No. 4 was also decided against the petitioner-plaintiff, whereas issues Nos. 1 to 3 were not pressed by the respondent-defendant and were decided against her. Thus in view of the findings on issues Nos. 5, 5-A and 4 the suit of the petitioner-plaintiff was dismissed vide judgment dated 27-4-1992.
8. The petitioner filed an appeal against the judgment of the Trial Court voicing the grievance that the evidence in the form of revenue record Exh. P2 to P8 which corroborated the implementation of agreement dated 27-4-1968 and possession of the petitioner was hot referred or considered at all in the judgment of the Trial Court. The learned Appellate Court however, vide judgment dated 7-11- '1995 dismissed the appeal affirming the findings of the learned trial Court. The learned Appellate Court reached the conclusion that no cogent evidence as led to prove the agreement dated 27-4- 1968 and that the same having not been registered, does not confer any title on the petitioner. No reference whatsoever was made to the documentary evidence Exh. P2 to P8, The dismissal of the said appeal has been assailed through this petition.
9. Mr. Muhammad Aslam Sandhu, the learned counsel for the petitioner ha vehemently contended that the Appellate Court has failed to consider the material aspects of the ease and the evidence led by the petitioner-plaintiff has been totally ignored and over-looked. It is submitted by him that all the attesting witnesses and the scribe except Fazal Muhammad PW1 had expired and therefore, could not be produced and the only person alive who had witnessed the execution of the agreement, Fazal Muhammad appeared as witness and deposed that the agreement was executed in his presence which was thumb, marked by Ghulam Nabi and Mst. Rahim Bibi.'Learned counsel further submits that in these circumstances the onus to prove the execution of the agreement was fully discharged by the petitioner-plaintiff and the learned Courts below erred in law in returning the finding to the contrary. It was further submitted by him that the denial of the agreement was an after thought as the same had been acted upon immediately after its Execution and reflection of the same finds mention in the revenue documents. He has made reference to Exh. P2 to P8 in this regard. It is also submitted that in the order dated 3-10-1982 of the Addl. Deputy Commissioner/Collector Consolidation it was clearly observed that the agreement was admitted by Mst. Rahim Bibi (who was appellant before him). With reference to the evidence on record, it was contended that judgment of the Appellate Court, suffers from illegality and material irregularity as the evidence on the record has been neither referred/discussed nor appreciated. He also invoked protection of Section 53-A of the Transfer of Property Act. 1882.
10. Mr. Muhammad Anwar Ghuman, learned counsel for the respondent on the other hand has contended that there is concurrent finding of fact as to the non-execution and proof of the agreement dated 27-4-1968 and no revision petition is competent, it is further contended that the respondent was illiterate Pardanasheen woman and therefore, extra caution and care was required and that the petitioner had to prove that the contents of the documents were read over to her and that the same was executed of her on free will and consent. His further contention was that Exh.PI was required to be registered and, therefore, it does not pass on any title whatsoever.
11. I have considered the arguments of the learned counsel and gone through the record and the judgments of the learned Courts impugned through this petition.
12. Perusal of the judgment of the learned Trial Court shows that it .Concentrated only on Exh.PI i.e. The agreement dated 27-4-1968. No other documentary evidence led by the petitioner-plaintiff was referred on considered by it. The petitioner had produced documentary evidence apart from the oral deposition of the PWs. In support of his suit, that agreement dated 27-4-1968 Exh:PI was executed between the parties in presence of the attesting witnesses and that in pursuance thereof possession was exchanged and ever-since the petitioner- plaintiff is in possession of the suit land.
Exh. P2 to P8 were relied upon by the petitioner-plaintiff in this regard. Since the learned Trial Court did not advert to this material piece of evidence, a specific grievance was made in the grounds of appeal i.e. Paragraphs Nos. 6 and 8 filed before the learned Appellate Court. Surprisingly the learned Appellate Court also failed to take notice of Exh. P2 to P8 and also the statements of DW1 Khushi Muhammad DW2 Muhammad Rashid and PW2 Muhammad Yousaf to the effect that except Fazal Muhammad all the attesting witnesses of Exh.PI have died. Thus the learned Appellate Court failed to attend to the vital and important piece of evidence germane to the determination of the points arising, in the case.
13. The object of providing forum of appeal is that an aggrieved party may have a right to challenge the judgment of the lower forum if it suffers from illegalities, mis-reading or non-reading of evidence on record and for correction of errors in judgment. The appellate forum and in particular the first appeal provided under the law is as of right and the entire case become sub- judice before the Appellate Court and is open for rehearing and decision. In F.A. Khan v.
Government of Pakistan (PLD 1964 SC 502) while laying down to established propositions in respect of nature of appeal it was observed at page 529 "when the appeal is filed the matter becomes sub-judice and is re-heard by the Appellate Court which does not act merely as a Court of error".
The concept and importance of the nature of appeal is also envisaged by Order 41, rule 3, CPC. It is the duty of the Appellate Court to state and decide the points arising for determination in a case.
This can only be done with reference to the pleadings of the parties and evidence produced in support thereof. It was held in Nasir Abbas v. Manzoor Haider Shah' (PLD 1989 SC 568 at page 573) that "It is settled that if the evidence on record has not been fully weighed and considered, that does not fulfil the requirements of Order 41, rule 31 and is liable to be set aside on revision", and that "It is also settled that if the lower Court mis-read the evidence on record and fails to take notice of a vital fact appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by the High Court". These are mandatory requirements to be kept in view by the Appellate Court while deciding the appeal.
14. It is consistently a rule laid down and followed by the superior Courts that in a case where the Appellate Court over-looks, ignores, fails to consider the evidence on record or the order lacks application of mind, it amounts to failure to comply with the mandatory provisions of Order 4, rule
31. Reference may be made to Saved Farzand Raza Rizvi v. Syed Zaheer Mustafa (1988 M LD 463), Amir Bakhsh and others v. Muhammad Ramzan-and others (1990 M LD 245), Junta Khan v. Mst.
Shamim (1992 CLC 1022) and Jan Muhammad v. Mulla Abdul Rehman and other (PLD 1998 Qta. 34).
15. A perusal of the judgment of the Appellate Court shows that n6t a slightest reference has been made to the evidence on record particularly Exh. P2 to P8, except the agreement dated 27-4-1968 Exh.PI. It ha also failed to take notice of the admitted fact that all the witnesses to the agreement and the scribe except Fazal PW1 had died. The Appellate Court did not apply its mind to the evidence on record and thus failed to properly exercise its appellate jurisdiction in the case.
16. The contention of the learned counsel for the respondent as to the concurrent findings of fact losses its efficacy when the findings recorded by the two Courts are found to be based on ignoring and non-reading of material piece of evidence. A finding can only be regarded as sacrosanct if it is based on proper and correct appreciation of all the evidence on record. As observed above a substantial part of evidence has been totally ignored and dis regarded by both the Courts below, therefore, the finding recorded cannot be treated as having nexus with or based on evidence. It is settled principle that in civil matters, the rule of preponderance of evidence is applied. A correct decision thus can only be arrived at when the totally of the evidence is considered and weighed by the Court. See Zaka Ullah Khan v. Muhammad Aslam (1991 SGMR 2126).
17. There is an other aspect to be noted from the appellate order which is about the jurisdiction of the Court in relation to the orders passed by the consolidation authorities. Issue No. 2 framed by the learned Trial Court related to the lack of jurisdiction in the matter. .This issue was not pressed by the defendant and was decided against her by the learned Trial Court. The learned Appellate Court, however, took upon itself to hold that the jurisdiction of the Civil Court is barred. The petitioner's grievance is that this point was neither agitated by any of the parties nor was argued and finding of the learned Appellate Court as to the nonexistence of the jurisdiction of Civil Court in the matter is without hearing the petitioner. It was not a case of lack of inherent jurisdiction. Matter before the Civil. Court was of a civil nature and falls within the plenary jurisdiction vested in the Civil Court under section 9 CPC unless it is proved to "have been covered by the exceptions. Mere existence of a provision of law regarding exclusion of jurisdiction of a Court is not enough. A party is entitled to show that the special Tribunal has acted beyond the sphere of his lawful power, acted mala fide or without jurisdiction. Reference may be made to Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 S.C. 698) and Abdur Rauf and others v. Abdul Hamid Khan (PLD 1965 SC 671). The respondent-defendant did not prove/press the issue before the trial Court. The reason being that before the Addl. Dy. Commissioner/Collector Consolidation the stand of the respondent/defendant was that it was the Civil Court which had jurisdiction in the matter. In this view of the matter, it would have been appropriate for the learned Appellate Court to put the parties on notice as to the existence or otherwise of jurisdiction of Civil Court in the matter.
18. In the situation like this when the judgment of the Appellate Court is not in-conformity with the requirements of Order 41, rule 31 CPC, the same is liable to be set aside and the case is remanded for re-hearing and deciding the appeal afresh. I am conscious of the fact that the remand is likely to consume some more time of the parties but in view of the fact that the appeal has not been decided by the Appellate Court in accordance with law and this Court cannot in revision take upon it^glf the appreciation and assessme nt of the evidence, there is no alternative except to remand the case to the Appellate Court. This is consistent practice and course followed in cases of this nature. Reference may be made to 1992 CLC 1022, 1990 M LD 245, 1988 M LD 463 and PLD 1988 Qta.
34. The arguments regarding merits of the case have not been touched by me including as to the applicability or otherwise of the judgment of the Hon'ble Supreme Court in PLD 1990 SC 642, so that the parties may have a fair chance to raise the same before the learned Appellate Court, which shall decide them with open mind.
19. In the result the revision petition is accepted. The impugned judgment of the Appellate Court dated 7-11-1995 is set aside, as a consequence the appeal filed by the petitioner shall be deemed to be pending which shall be re-heard and decided in accordance with law. The Appellate Court shall decide the appeal within a period of three months. The parties to bear their on costs.