2023 C L C 115
[Balochistan]
Before Sardar Ahmad Haleemi, J
REHMATULLAH and others ----Petitioners
Versus
NASEER AHMED and others ----Respondents
Civil Revision No.375 of 2021, decided on 16th August, 2022.
(a) Specific Relief Act (I of 1877)---
----Ss.42 & 54--- Civil Procedure Code (V of 1908), S.2(9) & O.XX, R.5--- Suit for
declaration and permanent injunction ---Court to state its decision on each issue ---Scope ---
Petitioners filed a suit for declaration and permanent injunction against the respon dents
claiming therein that they were owners in possession of suit property but the respondents
were interfering in their possession ---Claim of respondents was that they were in possession
of a part of property since the time of their ancestors; that they were regularly paying cesses of property and that their rights were protected under the Balochistan Tenancy Ordinance, 1978--- Trial Court dismissed the suit---Appellate Court declared the petitioners as owner of
property and respondents as possessor of property in question ---Validity ---Oral and
documentary evidence produced by the petitioners was not taken into consideration by the Trial Court ---Respondents had produced a private decision/document, which was not worth
of a proof as per the law, but the deci sion was given outright weightage ---Such evidence had
no legal sanctity as per the law; thus as per S. 2(9) of C.P.C., the decision of Trial Court could not be termed as a "judgment" neither the mandatory provision of O.XX, R.5, C.P.C. was complied with by the Trial Court ---Report prepared by revenue official was neither
taken into consideration nor any findings were recorded in that respect ---Appellate Court had
not discharged its judicial responsibilities as per the provision of law ---Revision petition wa s
accepted and the matter was remanded to Trial Court for framing of additional issues and decision on merits.
Pakistan Refinery Ltd. Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd. and others
2019 SCMR 1726 rel.
Muhammad Idress v. Muhammad Pervaiz 2010 SCMR 5 and Nasreen Bibi v. Abdul
Rashid 2012 MLD 642 ref.
(b) Civil Procedure Code (V of 1908) ---
----S.96 & O.XLI, R. 31 ---Appeal ---Contents of judgment ---Scope ---Appellate Court, being
a final court on facts, has to reappraise the entire oral and documentary evidence adduced by
the parties issue- wise, and to record its independent findings on the question of facts and law
raised by the parties.
Pakistan Refinery Ltd. Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd. and others
2019 SCMR 1726 rel.
(c) Civil Procedure Code (V of 1908) ---
----S.96 & O.XLI, R. 31---Appeal ---Contents of judgment ---Scope ---Appeal is a valuable
right of the parties ---Entire case of the parties is open to analysis on the question of facts and
law before the Appellate Court ---Judgme nt of the Appellate Court must therefore reflect that
its findings are supported by reasoning on all the points for determination---Merely agreeing
with the findings recorded by the Trial Court shows that the Appellate Court has not
recorded its own indepe ndent findings.
(d) Civil Procedure Code (V of 1908) ---
----O.XX, R. 5 ---Court to state its decision on each issue ---Scope ---In appealable case it is
desirable that the court should as may be practical pronounce its opinion on all issues which
were raised in a case.
Ghulam Mehdi v. Rajab Ali 2022 YLR 937 rel.
Ghulam Mohiuddin Sasoli for Petitioners.
Ahmed Ali Shahwani for Respondents.
Date of hearing: 29th July, 2022.
JUDGMENT
SARDAR AHMAD HALEEMI, J .----The instant Civil Revision Petition No.375 of
2021 is directed against the order dated 15.04.2021 (hereinafter "the impugned Order") passed by learned Qazi Sarawan Mastung (hereinafter "the trial Court") whereby the suit filed by the petitioners (plaintiffs) was dismissed and against the judgment date d 31.05.2021
(hereinafter "the impugned Judgment") passed by Majlis -e-Shoora Mastung (hereinafter "the
appellate Court") whereby the appeal filed by the petitioners (appellants) was partly accepted.
2. Brief facts of the case are that the petitioners filed a civil suit against the respondents
(defendants) for declaration, permanent injunction, restraining the respondents from illegal interference in the property with the averments that the petitioners Nos.1 to 9 are sons of late Abu Bakar, whereas the petit ioner No.10 was the grandson of late Abu Bakar. As per their
plea they have inherited property bearing Khewat and Khatoni No.01, Khasras Nos.70, 74, 79, 80, 86, 71, 72, 73, 75, 76, 77, 87, 78, and 85 measuring a total of 207 Rod 12 Pole situated at Mouza K hawaja Wali, Tehsil Khadkoocha District Mastung (hereinafter "the
property in question"). The boundary of the property as mentioned by the petitioner was as
under: -
East: Bandlond.
West: Tella (damp).
North: Daman -e-Koh.
South: Tella (Khawaja Wali).
The petitioners stated that the property in question was recorded in the name of
petitioners as owners and they were enjoying the peaceful possession of the property in question without any question from any corner; petitioner No.1 on 01.01.2020 ha d cultivated
wheat on the property in question, whereon the respondents started interference by means of making Lath Bandhi illegally without any lawful right, however, the petitioner No.1 stopped them from their illegal activities. They further contended that the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution") and prevailing law protected the propriety rights of the lawful owners and in the present suit the petitioners are lawful owners of the property in question, thus, their f undamental rights could not be allowed to be taken away in
any manner.
4. The petitioners further contended that the respondents were approached through the
notables of the area and they tried their level best to restrain them from illegal interference, but all in vain, lastly they prayed for decreeing the suit.
5. The learned Qazi Sarawan Mastung (hereinafter "the trial Court") registered the case
and issued notices to the respondents. In pursuance of the Court notices, the respondents appeared and contest ed the suit on legal as well as factual grounds by filing written
statement.
6. It was the stance of the respondents that Major Abdul Rahim Lehri, the grandfather of
the petitioners had granted a piece of land out of the property in question bearing Khewa t and
Khatoni No.1, Khasras Nos.77, 78, 85 and 87 situated at Mouza Khawaja Wali Tehsil and District Mastung as Lath Bandh Bazgars vide Sanad dated 29th Shaban 1300 AH to the grandfather of the respondents namely Mazar Khan Shahwani which was testified by Qazi
Hamdullah; the respondents are in possession of the respective piece of land as Lath Bandh Bazgars since the time of their ancestors; they are regularly paying the cesses of property; the petitioners have their legal rights protected under the Balochi stan Tenancy Ordinance,
1978.
The respondents further stated that notables of the area namely Nawab Masood Iqbal
Shahwani Baloch was appointed as an Arbitrator, who inquired about the matter and after going through the documents and evidence produced by t he parties, pronounced the decision
in favour of the respondents and lastly they prayed for dismissal of the suit filed by the petitioners.
7. Out of the pleading of the parties, the trial Court framed the following issues on
25.08.2022: -
1. Whether the plaintiffs are owners and in possession of property bearing, Khewat and
Khatoni No.1, Khasra Nos. 70, 74, 79, 80, 86, 71, 72, 73, 75, 76, 77, 87, 78, and 85
measuring a total of 207 Rod 12 Pole situated at Mouza Khawaja Wali, Tehsil Khadkoocha District Mas tung and on their names in the revenue record?
2. Whether the plaintiff is entitled to the relief claimed?
3. Relief?
8. The following additional issue was also framed by the trial Court:
"Whether the defendants are lath bandh bazgar on the land or not"?
9. After framing issues, the parties were directed to produce evidence in support of their
respective claims.
The petitioners produced three witnesses namely PW -1 Muhammad Bakhsh, PW -2
Jan Muhammad, and PW -3 Muhammad Azam Patwari, representative of Tehsil dar Mastung,
and recorded statement of their attorney Rehmatullah.
In rebuttal, the respondents produced DW -1 Ahmedullah and DW -2 Abdul Khaliq,
and Naseer Ahmed as attorney for the remaining defendants.
10. After hearing learned counsel for the parties and evaluating the evidence, the trial
Court passed the judgment and decree dated 15.04.2021, whereby the suit filed by the petitioners was dismissed.
11. Feeling aggrieved of the judgment dated 15.04.2021 passed by the trial Court, the
petitioners filed Civ il Appeal No.18/2021 under section 96, C.P.C. before the appellate
Court. After hearing learned counsel for the parties, the appellate Court partly allowed the appeal by declaring the petitioners as owners of the property in question and declaring responde nts in possession of the property in question as Lath Bandh Bazgars vide impugned
judgment dated 31.05.2021.
12. The learned counsel for petitioners contended that both the courts below have not
followed the procedure provided under Order XX, Rule 5, C.P.C . and Order XLI, Rule 31,
C.P.C. It was further contended that the trial court discussed only the oral statements produced by the petitioner in a cursory manner and did not appreciate the oral and documentary evidence in its true perspective.
13. The learn ed counsel for respondents argued that the trial Court did not frame proper
issues arising out of the pleadings. The respondents raised certain legal objections in their written statements, but both the courts below have ignored the same. In support of his
contention learned counsel for the respondents placed reliance on the case Muhammad Idress v. Muhammad Pervaiz 2010 SCMR 5 and Nasreen Bibi v. Abdul Rashid 2012 MLD 642.
14. After hearing learned counsel for the parties, I have perused the available recor d and
have gone through the judgments of the Courts below. Section 2(9) of the Code of Civil
Procedure Code, 1908 (the "C.P.C") defines the term "judgment" are follows: -
2(9) "Judgment" means the statement given by the judge on the grounds of a decree or order:
(a) Must be in writing;
(b) Must be a statement given by the judge on the grounds of a decree or order;
(c) Should state points for determination and decision thereon with reason;
(d) Must be announced in open court after notice to parties, signed and dated by the judgment at the time of pronouncement.
Order XX, Rule 5, C.P.C. mandates as follows: -
"In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons, therefore, upon each separ ate issue, unless the finding
upon any one or more of the issues is sufficient for the decision of the suit ".
The provision of Order XLI, Rule 31, C.P.C. reads as under: -
"Contents, date, and signature of judgment; - The judgment of the appellate court s hall
be in writing and shall state -
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and,
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled".
15. Perusal of the judgment of the trial court reflects that findings on issue No.1 consists
of eight lines, whereby the oral and documentary evidence produced by the petitioners was not taken into consideration by the trial court without any cogent reason, whereas i n order to
prove their claim of ownership the petitioners produced the revenue entries as Exp- W/3-A
through PW -3, which reveals that the property existed in their name; on the other hand, the
respondents in support of their claim of Lath Bandh Bazgar produced a private decision/document, which was not worth of a proof as per the law, but the said decision/document was given an outright weightage; suffice to mention here that the respondent's attorney had tendered the said private decision/document in his st atement as
Exp/Dw -3-c; astonishingly the petitioners were not party in the said decision, despite this
fact, the trial court had placed reliance upon the said decision/document, which was not substantiated by the respondents in accordance with law neither the author nor any witnesses of decision/document were produced, such an evidence has no legal sanctity as per the law;
thus as per section 2(9) of C.P.C., the decision of trial court cannot be termed as a
"judgment" neither the mandatory provision of Orde r XX, Rule 5, C.P.C. were complied with
by the trial Court.
The defendants have raised certain legal objection in their written statement but no
issues were framed upon the same.
16. The trial court as well as appellate Courts have not discussed the evidence produced
by the parties in its true perspective, and the issues have been decided randomly. The procedure laid down in the above provisions of law cannot be treated as an empty formulate. Apparently, the mandatory provisions of the law have not be en followed.
17. The appellate Court, being a final Court on facts, has to reappraise the entire oral and
documentary evidence adduced by the parties issue -wise, and to record its independent
findings on the question of facts and law raised by the parties.
18. After perusal of the impugned judgment of the appellate Court, it revealed that the
appellate court did not frame any points for determination. It has not appreciated the oral evidence regarding the relevant document to answer the question raised by b oth the parties
and also did not give independent findings thereon. Reliance in this regard is placed on the case of Pakistan Refinery Ltd. Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd. and others 2019 SCMR 1726 wherein it has been held as follows: -
"A judgment delivered by the trial Court would not be a judgment in the real sense of
the word if it does not conform to the requirements of Rule 5 of Order XX of the
C.P.C. Similarly, a judgment delivered by the first Court of appeal and final Court of fact would not be a judgment if it does not conform to the requirements of Rule 31,
Order XLI of the C.P.C. The rationale or raison d'eter behind these provisions is that not only the party losing the case but the next higher forum may also understand what weig hed with the Court in deciding the lis against it. Such exercise cannot be
dispensed with even in the cases of affirmative judgments otherwise who would know that arguments addressed were accepted or rejected with due application of mind".
19. The appeal i s a valuable right of the parties. The entire case of the parties is open to
analysis on the question of facts and law before the appellate Court. The judgment of the appellate court must therefore reflect that its findings are supported by reasoning on al l the
points for determination. Merely agreeing with the findings recorded by the trial court shows that the appellate court has not recorded its own independent findings.
20. The pivotal question between the parties was regarding the claim of possession of
their respective piece of land. In this regard, the trial Court directed the concerned revenue official i.e. Naib Tehsildar to visit the place and to determine the possession of parties as per revenue record. In pursuance of said order, the Naib Tehsilda r visited property in question
and submitted report dated 30.06.2020 but the said report was neither taken into consideration nor any findings were recorded in respect of the said report by the Courts below, therefore, this Court has no hesitation to hold that the appellate Court did not discharge its judicial responsibilities as per the provision of law.
21. The appellate Court while reversing the findings stressed only on a solitary issue No.1
specifically and did not discuss reasons weighed by the trial Court. Besides, it had to record
its independent reasoning/findings to resolve the issue.
22. Moreover, it is also a well settled fact that in an appealable case it is desirable that the
court should as may be practicable pronounce its opinion on all issues which were raised in a
case. Reliance is placed on case title Ghulam Mehdi v. Rajab Ali 2022 YLR 937, wherein it has been held as under: -
"The term "points for determination" refers to all important questions involved in the case. It is necessary f or 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, il luminative and in the nature of speaking order. Where the provision of
Order XLI, Rule 31, CPC are not complied with, the judgment is not accordance with law ".
For the reasons mentioned above, the instant civil revision petition is accepted and the impugned Judgment dated 15.04.2021 passed by the learned Qazi Sarawan Mastung and the impugned judgment dated 31.05.2021 passed by the Majlis -e-Shoora Mastung are set aside
and the matter is remanded to the trial Court for framing additional issues and providing
opportunity to the parties to lead further evidence, if opted; thereafter to dispose of the suit on merits expeditiously.
SA/163/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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