' These appeals are directed against consolidated judgment and decree passed by learned Additional District Judge, Mirpur Khas dated 12-1-1989 in Civil Appeal No,27 of 1988 and 28 of 1988 brought by Syed Rehmat Ali against Syed Sadiq Ali impugning the judgment and decree passed in Suits Nos.l1 of 1986 and 12 of 1986 by learned Senior Civil Judge, Mirpur Khas.
2. Respondent Syed Sadiq Ali (since deceased and survived by his legal heirs) filed Suit No,12 of 1986 seeking the relief of possession relating to Plots Nos.21 and 22 measuring 2000 sq.Ft. And 1600 sq.Ft. Situated in Mohallah Muhammadabad Chaki Para, Mirpur Khas with construction thereon after dispossessing the appellants or anybody else claiming through or under them and for the award of mesne profits at the rate of Rs,100 per month from May, 1978 till the filing of the suit and at the same rate from the date of suit till delivery of possession.
3. On his part Syed Rehmat Ali, Syed Sarfraz Ali and Mst. Bismillah filed Suit No,11 of 1986 against Syed Sadiq Ali seeking a declaration of ownership in respect of the same plots along with structures raised thereon by virtue of having perfected their title' by way of prescription and a permanent injunction restraining the respondent from interfering with their possession and enjoyment in respect of the plots in any manner except in due course of law.
4. The case of Syed Rehmat Ali and others was that the plots in suit lying vacant as residential plots and they being shelterless persons occupied the same in 1961 and carried out Katcha/Pacca construction over the same. They claimed their occupation in the suit property without the payment of any rent and other charges to the owners or any other person and, thus, acquired title by way of adverse possession. They averred that respondent Syed Sadiq Ali claiming to be purchaser of the plots in suit intended to dispossess them, hence the suit.
5. The case of Syed Sadiq Ali in the connected suit as averred was that the plots in suit originally belonged to Mst. Samoon wife of Mir Haji Muhammad Bux Talpur which were in occupation of his mother Mst. Wahidan Bano as tenant. He claimed that he and his mother had raised Katcha construction over the plots in suit and were paying rent to the original owner. In 1961 agricultural land was transferred into Sikni whereupon plots in suit were purchased by Abdul Sattar and Saleh Muhammad through registered Sale-Deeds Nos.24 and 28 both dated 9-1-1968. He claimed the purchase of both the plots from them for consideration of Rs,10,000 through a registered sale-deed dated 7-3-1978 as he - was already in possession thereof through his mother. Record of rights was accordingly mutated in his favour. It was averred that appellants Syed Rehmat Ali and others were living initially with their relatives in Lal Para and thereafter, in Hameed Pura with the father-in-law of respondent Syed Sarfraz Ali. As in the year 1977 they were living on the roadside and were ordered to be ejected therefore, Syed Sadiq Ali and his mother due to sympathy allowed them to live with them for some time till they arranged for their shelter. In May, 1978 respondent's mother had gone to Peshawar to attend a marriage but when she returned after about 10/12 days she was not allowed to enter the suit premises as the appellants dishonestly and forcibly occupied the suit premises, hence the suit.
6. Both the parties in their respective written statements took the same position as in their plaints.
7. On the pleadings of the parties following issues were settled in Suit No,11 of 1986:
(i) Whether the plaintiffs Nos.l and 2 have acquired the right of ownership over Plots Nos.21 and 22 situated in Mohallah Muhammadabad Chaki Para, by way of adverse possession?
(ii) Whether the defendant is owner of these plots, having purchased the same on 7-3-1978 for a consideration of Rs,10,000 by Registered Sale-Deed No,620, dated 7-3-1978?
(iii) Whether the plaintiffs were allowed to stay in the suit plots by way of courtesy as they were relatives of the defendants?
(iv) Whether the plaintiffs are trespasser over the suit plots?
(v) What should the decree be?
' Identical issues were framed in the connected suit reflecting the rival pleas of the opposite-party.
8. Both the suits were consolidated and Suit No,11 of 1986 was decided to be the leading suit in which both the parties recorded their evidence. Upon consideration of the relevant oral as well as documentary evidence learned Senior Civil Judge held that Syed Rehmat Ali and others had failed to establish their adverse possession for more than twelve years prior to the filing of the suit wheres Syed Sadiq Ali was held to be the bona fide purchaser of the plots in suit through a registered conveyance deed from Abdul Sattar and Saleh Muhammad. He held that Syed Rehmat Ali and others were allowed to stay in the suit premises by way of courtesy they being relatives of Syed Sadiq Ali and his mother. In view of his finding on issue relating to acquiring ownership by way of adverse possession learned Senior Civil Judge expressed the view that Syed Rehmat Ali and others were trespassers over the plots in suit but at the same time he observed that even if they were allowed by Syed Sadiq Ali and his mother to live in the house by refusing to hand over the possession of the house they became trespassers. Accordingly he dismissed Suit No,11 of 1986 brought by Syed Rehmat Ali and others but decreed Suit No,12 of 1986 directing appellants Syed Rehmat Ali and others to hand over vacant possession to him in addition to the payment of mesne profits at the rate of Rs,100 per month from May, 1978 till delivery of possession.
9. Civil Appeals Nos.27 of 1988 and 28 of 1988 preferred by Syed Rehmat Ali and others against the judgment and decree of the trial Court before the learned Additional District Judge failed who upheld the judgment and decree passed by the trial Court and dismissed the appeals with the modification that the trial Court should mention the specific amount to be awarded to the respondent for use and occupation of the plots in suit.
10. As envisaged by section 100 of the Civil Procedure Code an appeal shall lie to the High Court from every decree passed in appeal by a Court subordinate to it unless expressly provided otherwise on the grounds namely (a) the decision being contrary to law or usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; and (c) a substantial error or defect in the procedure provided by Civil Procedure Code or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merits.
11. In view of this settled position in law learned counsel for the appellants raised the following contentions:--
(i) That the judgment of the first Appellate Court is contrary to law inasmuch as Appellate Court failed to formulate the points for determination to give decision thereon and to record reasons for the decision as contemplated by Order XLI, rule 31, C.P.C.
(ii) That by not discussing the evidence of the appellants in totality Appellate Court committed a serious error of law and by not recording findings on each issue committed a gross error of law to the utmost prejudice. Of the appellants.
' Learned counsel relied upon the following judgments:--
(i) Miran v. Ghulam Hussain (PLD 1985 Karachi 674).
(ii) Ali Muhammad v. Muhammad Hayat (1982: SCMR 816).
(iii) Muhammad Hussain v. Said Muhammad (PLD 1988 SC (AJ&K) 184).
12. I have gone through the impugned judgment recorded by the learned Additional District Judge, Mirpur Khas upholding the judgment and decree passed by the trial Court. In the impugned judgment no doubt the learned Appellate Court has not formulated the points for determination as required by the provisions contained in Order XLI, rule 31, C.P.C. Substantially learned Appellate Court has discussed the evidence of Syed Sadiq Ali Shah in the light of registered sale-deed through which he purchased the property in suit as well as the Extract from the City Survey record mutating the suit property in his name as also the evidence of Mst. Bismillah Begum appellant No,3 and recorded a finding that respondent Syed Sadiq Ali had successfully proved his title and ownership over the suit premises. He observed that the parties being related to each other respondent's plea appeared to be correct that the appellants being his relatives his mother had permitted them to live over the suit property till they arranged for their own shelter. He held that the permissive possession of the plaintiffs/appellants could never be treated to be adverse against right, title and interest of respondent Sadiq Ali even if a period of twelve years had actually expired till filing of the suit. But as against the legal requirement to that end deposition of one of the appellants Mst. Bismillah had proved that she had been in permissive possession of the suit property for a period of three years before filing of the suit by appellants while other appellants had lived over the suit property for a shorter period than her. Technically speaking therefore, impugned judgment suffers from the defect of formal and strict compliance with the requirements of provisions of law referred by the learned counsel but in substance learned Additional District Judge had considered entire relevant evidence on the issues relating to right and title. In the suit property by the parties, nature of possession claimed by the appellants being permissive possession much short of statutory requirement and in any event not adverse to the rights of the true owner i,e, Syed Sadiq Ali. The expression, "points for determination", refers to all the important questions in controversy in a suit and does not include points which have been either omitted, not pressed or which are not necessary for the disposal of the suit or which were not urged at the hearing of the appeal. In law it is incumbent for the Appellate Court to record the points for determination so that it could be ascertained whether the Court had dealt with all the points. Moreover, Appellate Court is required to record its judgment in respect of each point which should be self-explanatory comprehensive and in the nature of a speaking judgment. In law all the grounds on which the finding of th Court below is founded must be adverted to and dilated upon. Reasons for decision on each point are required to be given in the judgment so that the parties may be able to decide whether to appeal against the judgment and also to enable second Appellate Court to determine whether the lower Appellate Court had properly understood: the case. It is also imperative from the points in view that justice should not only be done but should also appear to be done. Reasons are required to be given in the affirmative judgments as well as in a case disposing of the appeal in limine. However, the Court need not refer to each and every bit of evidence and all the documents on record. Legally speaking an Appellate Court is not required to examine in seriatim the reasons given by the trial Court. If certain points are specifically discussed and the judgment is silent about the rest it may be appropriately presumed that they were abandoned or not pressed. A second appeal will however, lie where the judgment is uncertain in its meaning or where. The finding is vague and inconclusive or where reasons are not given at all.
13. In Nasir Abbas v. Manzoor Haider Shah (PLD 1989 SC 568) it was observed that it is settled that if the evidence on the record has not been fully weighed and considered, that does not fulfil the requirements of Order XLI, rule 31, C.P.C. And is liable to be set aside on revision. It is also settled that f the lower Court misreads the evident on record and fails to take notice of a fact appearing therein comes to an errors conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by High Court. In Muhammad Ibrahim v. Mehmooda (1991 CLC 1795)
Wajihuddin Ahmed, J. (as he then was) held that substantial compliance of the requirements of Order XL!, rule 31, C.P.C. Would be enough and in a number of cases it had been held that the rule may b relaxed as regards discussion of each and every piece of evidence generally and mot particularly where the appellate judgment in affirmation of that which was arrived at the trial.
Learned Judge observed that no case had been cited and to his mind none may be available where neither the points for determination were mentioned at the appellate level nor specific decision thereon nor the reasons therefor. He expressed the view that it does, at times, happen that only issues are reproduced in the appellate judgment and discussion centers around the same thereby ensuring substantial compliance. In such cases a purely technical view may be avoidable.
In Wilayat Begum and others v. Wazir Begum and others (1992 CLC 553) learned Single Judge of the Lahore High Court held that where all the pleas that could have been taken were taken before first Appellate Court and it disposed of the same, though it did not state the pleadings of parties in detail nor discussed evidence with particular reference to each and every issue, such judgment though brief, yet it detailed the points raised before it and effectually settled the dispute, there was no need to write a lengthy judgment with minutest details. In Wazir Khan v. Abdul Aziz Burney (1992 MLD 1758) Syed Haider Ali Pirzada, J. (as he then was) held that the essence of a judgment is that it must be supported by reasons. Importance of reasoning in judgment is all the more necessary before a lower Appellate Court whose decision on finding of fact is binding on the High Court. If, therefore, a judgment of a lower Appellate Court is based on no evidence it cannot be regarded as a judgment recorded in accordance with law. In Mst. Roshi and others v. Mst. Fateh and others (1982 SCMR 542) after referring to the earlier judgment in Choudhry Abdul Kabeer v. Mian Abdul Wahid (1968 SCMR 464) that "a non-compliance with the strict provision of rule 31 of Order XLI of Civil Procedure Code may not vitiate the judgment and make it a nullity and the irregularity may be ignored if there has been substantial compliance with it The question whether in a particular case there has been a substantial compliance with the provisions of rule 31, would depend on the nature of the judgment which is under appeal. For example, if the finding on a question of fact has been arrived at on proper and legal evidence, there could, thus, be no ground for interference under section 100 of the Code of Civil Procedure and, therefore, there would the no necessity for strict compliance with rule 31. But, when important points of law are involved in the case of Appellate Court must indicate the points raised and the reasons for its decision", Supreme Court dismissed the petition for leave to appeal after observing that though the learned Additional District Judge may have failed strictly to comply with the provisions of Order XLI, rule 31, C.P.C. There had been a substantial compliance therewith.
14. I have had the occasion to go through the evidence of the witnesses for the parties who appeared before the trial Court in support of their respective claims and contentions. It is true that from the appellants' side learned Additional District Judge did not separately discuss the evidence of appellants Syed Sarfraz Ali, Syed Rehmat Ali and P.W. Lal Muhammad but by Discussing the evidence of co- plaintiff/appellant Mst. Bismillah it can be legitimately presumed and supposed that the learned Additional District Judge had taken into consideration the evidence of Syed Rehmat Ali and Syed Sarfraz Ali whose interests were identical and their evidence not altogether different from the evidence of Mst. Bismillah. Since the evidence of Mst. Bismillah did not materially establish a case of adverse possession for a period over twelve years and the nature of possession as open, exclusive, notorious and hostile to the rights and interests of true owners appellants' case could not derive any assistance from the evidence of P.W. Lal Muhammad who happened to be a masson. If the evidence of the appellants themselves was found to be not reliable and their possession found as a matter of fact to be of permissive nature I see no fault with the reasoning of the learned Additional District Judge who concurred with the findings recorded by the trial Court in a conscious manner and not by way of a slipshod manner. Undisputedly right and title to the properties in suit in favour of Syed Sadiq Ali stood conclusively established by valuable registered conveyance deed in his favour executed by Abdul Sattar and Saleh Muhammad followed by mutation in the City Survey record and prior possession of his mother as tenant of the previous owners strict compliance with the provisions of law absolutely as such in my view does not vitiate the judgment itself and to my mind it would only amount to sheer wastage of time and energy and add agony to the parties should the case be remanded to the Appellate Court after the passage of a decade in view of the fact that the parties have been agitating for their rights since 1978.
15. Adverting to the cases cited on behalf of the appellants in PLD 1985 Karachi no doubt the case was remanded to the lower Court because the first Appellate Court had disposed of the appeal on the short ground that the suit was not maintainable with a further observation that even on merits the respondent had failed to make out his case for specific performance of contract. It may be pertinent to note that there was absolutely no discussion on the issues involved in the appeal which pursuaded the learned Single Judge to remand the case. In. Ali Muhammad's case Supreme Court dismissed the petition for leave to appeal as the trial Judge had not given reasons for his decision on each issue separately but disposed of first five issues by simply observing that "all these issues have no substantive force in view of findings given under Issue No,6". Likewise in Muhammad Hussain's case appeal was remanded to the High Court because the High Court inadvertently omitted to decide a most important issue of adverse possession agitated and argued by the appellant before it. The cases in my humble view do not advance the plea raised by the learned counsel and in any event do not displace the dictum of law laid down by the superior Courts and more particularly Supreme Court of Pakistan that in appropriate cases technical adherence to the procedural law may be avoidable in case substantial compliance with the rule has been made.
16. In the result both the appeals must) fail and are accordingly dismissed with costs.
' Observation of Additional District Judge with regard to quantum of mesne profit is not correct and stands deleted from his judgment.