This revision petition filed on behalf of Abdur Raziq and others, petitioners, impugns the judgment and decree of learned Zila Qahi/District Judge, Dir dated 30-4-2001, by virtue of which Civil Appeal No,83/13 of 2000 directed against the judgment and decree of learned Illaqa Qazi/Civil Judge, Timargara, dated 19-5-2000 passed in Suit No,52/1 of 2000, was accepted and as a result thereof, the said suit was decreed.
2. Briefly narrated the facts are that Sabar Khan respondent-plaintiff instituted a suit against Abdur Raziq and others, petitioners-defendants, claiming a declaration to the effect that plaintiff was owner in possession of suit-land by virtue of inheritance; that defendants were not justified to deny the claim of the plaintiff and assert their own and that they had no justification to interfere with the rights of the plaintiff. A prayer for grant of permanent injunction and in the alternative, for possession of suit-land in case the plaintiff was not found in possession of the same, was also made.
3. The defendants resisted the suit on all grounds legal as well as factual and denied the claim of the plaintiff. The parties were put to trial on the following issues:--
(1) Whether the plaintiff has a cause of action?
(2) Whether the suit is within time?
(3) Whether the suit-land is ancestral property of the plaintiff?
(4) Whether the suit is based on mala fides?
(5) Whether the suit is competent in its present form?
(6) Whether the plaintiff is estopped by his conduct to file suit?
(7) Whether the plaintiff is entitled for a decree prayed for?
(8) Relief.
4. The parties produced evidence in support of their respective contentions. Upon consideration of the evidence, learned Illaqa Qazi/Civil Judge, Timargara, seized of the matter, disbelieved the evidence led by the plaintiff and proceeded to hold that plaintiff has failed to prove his ownership in respect of suit-land and he is not entitled for the decree prayed for. Resultantly, he dismissed the suit vide judgment and decree, dated 19-5-2000. An appeal was preferred thereagainst before the learned Zila Qazi/District Judge, Dir at Timargara which was accepted and suit was decreed vide judgment, dated 30-4-2001, which has led to the filing of instant revision petition.
5. Arguing on behalf of the petitioners, Mr. Mazullah Barkandi, Advocate, contended with force that the impugned judgment of the learned Appellate Court is result of misreading and non-reading of the evidence and the decree passed by the learned trial Judge has been reversed in a mechanical manner without application of judicious mind and that the impugned judgment is violative of the provisions of Order 41, Rule 31, C.P.C. The learned counsel prayed that matter may be remitted back to the Appellate Court for decision afresh in order to meet the ends of justice. To argument the contentions he placed reliance on Muhammad Qasim and 6 others v. Muhammad Hussain and 8 others PLD 2001 Lah. 9 and Suleman and others v. Dadoo and others 2001 YLR 764.
6. Mr. Zafar Javed Durrani, Advocate, for the respondent, on the contrary, supported the impugned judgment and decree of the Appellate Court and maintained that good reasons have been shown for setting aside the judgment and decree of the trial Court and that no case for interference has been made out in the exercise of revisional jurisdiction of this Court.
7. The claim of the plaintiff-respondent, in essence, is that he is owner of suit-land by virtue of inheritance and defendants-petitioners have no concern with it. In order to substantiate the claim plaintiff-respondent appeared in Court as P.W.1 and stated that he is owner of suit-land; that defendants-petitioners have taken forcible possession of it and that they have started constructing a "Kotha" on it. Under the cross-examination he denied that he never remained in possession of disputed land and that his suit is based on mala tides.
8. Inayatullah, Muhammad Roz Khan and Muhammad Khurshid who appeared in Court as P.W.2 to P.W.4 respectively supported the plaintiff's claim and stated that suit-land is the ownership of "Chorkhel". The plaintiff is owner in it to the extent of 1/3 share whereas the remaining is owned by the others. Defendant No,1 has constructed a "Kotha" in it.
9. Abdur Razzaq who appeared in the witness-box as D.W.1 stated that he is owner in possession through inheritance and he has given the same to his son-in-law Khidar Khan defendant No,2 for constructing a house. The latter is residing in the same with his family and the plaintiff has no interest in it. Under the cross-examination he denied the possession of the plaintiff. He also denied having taken forcible possession of suit-land.
10. The impugned judgment and decree of the Appellate Court has been assailed and rightly so on the ground that the findings returned by the Court are not in accord with the evidence on the file and that the formalities of Order 41, rule 31, C.P.C. Have not been complied with. I have myself gone through the material on record and I share the view of learned counsel for the petitioners that the material available on file has not been properly assessed and appreciated and the impugned judgment has been passed its a cursory manner without application of judicious mind.
11. So far as the objection regarding non-compliance of the provisions of Order 41, rule 31 of the Code of Civil Procedure is concerned, 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 regards facts and law, and to substitute its own judgment for that of the subordinate Court. An Appellate judgment should state the points arising for determination. Its decision thereon and the reasons for its decision. It need not deal with grounds of appeal abandoned by counsel during arguments. The term "points for determination" refers to all important questions involved in the case and does not include points which have been abandoned or which are not necessary for the disposal of the case, or which were not urged at the hearing of the appeal. 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 a speaking order. Where the provisions of Order 41, rule 31, C.P.C.
Are not complied with the judgment is not in accordance with law. It should be evident from the judgment that the Judge was conscious of the matter involved and that the decision has been pronounced on the basis of the record. Where a judgment does not substantially comply with the requirements of this rule, it is a bad judgment in the eye of law. The perusal of the judgment of the learned Appellate Court shows that the appeal was dealt with in a very cursory manner. Neither issuewise findings were given by the learned Appellate Court nor points for determination as envisaged under Order 41, rule 31, C.P.C. Were set out and decision given thereon. The trial Court and the Appellate Court are duty bound to consider and discuss the evidence of both the parties satisfactorily so that it may be visible that the Courts below have applied their mind and that reveal that it frustrates the very purpose of the provisions of Order 41, rule 31, C.P.C. And has been recorded in a mechanical manner without discussing the material on record in detail, Mehrban v.
Hamid Khan 1985 CLC 1780, Noor Muhammad v. Din Muhammad and others 1988 CLC 2337, Muhammad Saghir Bhatti and sons v. The Federation of Pakistan and another PLD 1958 SC (Pak.)
221, Syed Ghulam Mustafa Shah and 2 others v. Syed Muhammad Hussain Shah and others PLD 1993 Kar. 369; Ali Muhammad v. Muhammad Hayat and others 1982 SCMR 816, Akhtar Ali Khan and another v. Settlement Commissioner, Peshawar and 4 others 1989 SCMR 506, Mst. Sardar Bibi v.
Muhammad Bakhsh and others PLD 1954 Lah. 480, Muhammad Azam Khan and others v. Rehmat Ali Khan and others PLD 1993 Lah. 836, Haji Khan Baz Khan and 8 others v. Abdur Rahim and 5 others PLD 1993 Pesh. 36, Mst. Ghulam Sakina and 6 others v. Karim Bakhsh and 7 others PLD 1970 Lah. 412, Mst. Aisha v. Mst. Fatima and others 1991 CLC 1499, Muhammad Mustaqeem v. Abdul Haleem 1992 CLC 435, Executive Engineer C&W Mansehra and 2 others v. Muhammad Nasim Khan and 4 others 2002 CLC 427 and Faridoon v. Shafiullah Khan and others 2002 CLC 1262.
12. For the reasons recorded above, I find that the impugned judgment of the learned District Judge is .Violative of the provisions of Order 41, rule 31 of the Code of Civil Procedure (Act V of 1908) and cannot be allowed to remain in tact. Resultantly, the revision petition is allowed, the judgment of the learned District Judge is set aside and the case is remanded to the learned District Judge for rewriting the judgment in accordance with law after hearing the parties once again. The parties are directed to make their appearance personally or through their counsel before the learned District Judge, Dir on 7-5-2003. The parties are left to bear their own costs of this revision petition.
Office shall send the record to the District Judge, Dir immediately.