PLJ 2007
Present: Fazal-e-Miran Chauhan, J.
Mst. SABAHAT IDREES and another--Appellants
versus
Mst. CLARE BENEDICTA CONVILLE and 4 others--Respondents
R.S.A. No. 62 of 2005, decided on 29.6.2007.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 2(9), 100 & O.XX, Rr. 4 & 5--O. XLI, R. 31--Second appeal--Judgment--Reproduction of written arguments--Verbatim wording--Evaluation of evidence--Without giving its own independent observation, discussion and comparison of arguments of parties by trial Court--Concurrent findings--Case was remanded--Re-writing of judgments--Practice of adoption of judgment of trial Court--Depreciated by Superior Courts--Validity--Judgments and orders of Courts below are nothing but recapitulation of the written arguments of respondents--Court is required to give its own reasons by discussing the facts and evidence on record for pronouncing a judgment and if the Court fails to give its own reasons, it would be deemed that the Court had acted with material irregularity and illegality and in that eventuality the decision or judgment given by the Court would not be sustained in the eyes of law--Held: Case is remanded to First Appellate Court with direction that he may entrust it to Senior Civil Judge who is directed to re-write the judgment on evidence. [Pp. 1036, 1037 & 1039] A, C & G
Civil Procedure Code, 1908 (V of 1908)--
----S. 2(9)--Interpretation of Judgment--Judicial decision--Judgment means the judicial decision of a Court or Judge, its need not necessary deal with all the matters in a suit but, may determine only those issues, which will have the effect either adjudicating all the matters in controversy or will result in a final disposal of the suit.
[P. 1037] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 2(9) & O.XX, R. 4(2)--Judgment of other Courts--Determination of points--Judgment shall contain the issues statement of the case, points for determination, reasons and such decision. [P. 1038] E
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 31--Appellate Judgment--Pronouncement of judgment--Purpose of--Points arising--Determination--Appellate Court is required to give its decision with regard to each point, which should be self explanatory, illuminative and in nature of order. [P. 1039] F
Judgment in Personam--
----Such judgment being judgment in personam should fully determine their rights and judge is required to have used all his skills in highlighting each and every point under controversy and his own reasons for agreeing with either of parties on such points. [P. 1038] D
Mr. M. Maqbul Sadiq & Mrs. Rabia Farooq, Advocates for Appellants.
Ch. Imdad Ali Khan, Advocate for Respondents.
Date of hearing: 30.5.2007.
Judgment
This regular second appeal has arisen from concurrent findings of the two Courts below. Suit for declaration filed by the appellants-plaintiffs was dismissed by the Civil Judge, Sahiwal vide judgment and decree dated 04.04,1996 and the appeal preferred against the judgment and decree was also dismissed by the learned Additional District Judge, Sahiwal vide its judgment and decree dated 21.5.2005.
2. Brief facts of the case are that the suit, filed by the appellants, for declaration with perpetual injunction and for specific performance to the effect that, Colonel LHG, Conville was owner of agricultural land measuring 120 squares in Chak No. 89/9-L, Tehsil & District, Sahiwal in the year 1959; 43-squares of land owned by Colonel L.H.G. Conville came under land reforms and he was deprived of the same. In order to avoid any further land reforms, said Colonel L.H.G, Conville in the year 1966, sold 23 squares of land to the plaintiffs and 14 squares of land to Ch. Shah Muhammad (deceased) grand father of Plaintiffs No. 1 to 3 and 9 squares of land to some other persons. He also gifted his remaining land to his son, grand son and daughters measuring 65 acres and 8-marlas in Squares No.3, 4 and in Chak No.88/9-L and 20 acres 2-marlas in Square No. 18 in Chak No.87/9-L, to Defendant No. 1 his grand daughter but he remained the actual owner and being-actual owner Colonel L.H.G, Conville entered into an agreement to sell with the plaintiffs with regard to the above mentioned land and other land and received Rs. 25,00,000/- against receipt as sale consideration and possession of the land was delivered under the agreement to sell to the plaintiffs, which was made with the consent of Defendants No. 1 to 3. After the death of Colonel L.H.G. Conville, the legal heirs on instigation of one Barkat Ali made illegal demands. Plaintiff No. 4, father of Plaintiffs No. 1 to 3 in order to end this dispute, obtained the peaceful incorporation of alienation in the revenue record and to avoid litigations, again paid a sum of Rs. 25,00,000/- as over all settlements to the descendants of Colonel L.H.G. Conville and Respondents No.2 and 3 about the suit land and other land. The matter was compromised and the total amount was paid. A sum of Rs.4,25,000/- was deposited in the accounts of Defendant No.2, David Henery Conville father of Defendant No. 1 maintained in the Muslim Commercial Bank, Limited High Street Sahiwal. Accordingly, an entry in the revenue record about the land possessed and owned by appellants-Plaintiffs No. 1 to 3 was made vide Mutation No. 47 attested on 25.03.1982 for land measuring 65 acres, 8-marlas in Squares No. 3, 4 and 9 situated in the area of Chak No. 88/9-L and a Mutation No. 163 about the land measuring 20-acres, 2-canals situated in the area of Chak No.87/9-L was attested on 25.03.1982 in favour of sister of Plaintiffs No. 1 to 3, Defendants No. 1 to 3 on the instigation of Barkat Ali tried to back out from the agreement to sell executed in favour of Muhammad Idrees, father of appellants No. 1 to 3. During this period, Defendant No. 1 also executed a general attorney in favour of Barkat Ali, which is void illegal, without lawful authority.
3. Defendant No. 1
challenged Mutations No. 47 and 43 in. appeal before Commissioner, Multan
Division,
4. The appellants-plaintiffs seek declaration that at first instance to declare the order of Commissioner Multan Division, Multan and M.B.R to be void, illegal ineffective qua the rights of the appellants plaintiffs and also gift deed executed by Barkat Ali in favour of Dr. Abdul Haq Chaudhary Respondent No. 5 to be illegal, without lawful authority and also declaring the same to be ineffective against the rights of the appellants-plaintiffs and the defendants be permanently restrained from interfering in the possession of the appellants-plaintiffs. The respondents-defendants be also restrained from further alienating the property, in dispute, in any manner. And in the alternative prayed for a decree for specific performance of agreement to sell dated 11.11.1976.
The second suit titled "Sabahat Idrees vs. Claire Benedicta etc." relates to the same facts Only difference in the case is that land was transferred in the name of plaintiff by Mutation No. 47, Chak No.88/9-L and land measuring 65-acres etc. and Mutation No. 163 Chak No. 87/9-L measuring 20-acres.
5. The Defendant No. 1 to 5 contested both suits by filing written-statement through their general attorney Barkat Ali, controverted the facts of the plaint and also raised as many as fifteen legal objections. Defendant No. 1 asserted that facts mentioned in Paras No. 1 to 4 of the plaint are mere allegations and are not backed by any documentary evidence or revenue record. No transaction of sale took place between the plaintiffs and Colonel L.H.G. Conville; letter dated 11.11.1976 is forged document and the plea of payment of Rs. 25,00,000/- is totally false, as there is no proof of payment by the appellants; Mutation No. 47 of Chak No.88/9-L and 163 of Chak No. 87/9-L are illegal and were got entered in collusion with the revenue staff, no power of sale was given to the alleged general attorney; Muhammad Idrees by the Col. L.H.G, Conville hence he was not authorized to alienate the land. The alleged mutations were entered when the power-of-attorney was revoked and he was not authorized to act on behalf of Colonel. L.H.G. Conville; thus mutations were rightly set aside by the Commissioner, Multan Division, Multan and the order was rightly upheld by the M.B.R on 09.07.1984; the gift registered on 17.5.1987 made in favour of Defendant No. 5 is lawful, legal and effective, Finally prays for dismissal of suit.
6. Both the suits were consolidated and almost 47 consolidated issues were framed from the pleadings of the-parties.
7. In order to prove the case, the appellants-plaintiffs produced as many as 17 witnesses:--
Syed Ghulam Ghaus Sherazi PW.1
Manager, United Bank Ltd.
Muhammad Naeem, Manager, PW.2
M.C.B., High Street, Sahiwal.
Raza Akbar, Manager Foreign PW.3
Exchange Dept. Allied Bank, Sahiwal
Mazhar Akbar Sofi PW.3/A
Muhammad Asif, Assistant PW.4
Board of Revenue, Lahore.
Muhammad Sarwar, Assistant PW.5
District Nazar, Sahiwal.
Muhammad Siddique, Naib Aslah PW.6
Clerk, D.C.Office, Sahiwal
Liaqat Ali Sheikh, Officer Allied PW.7
Bank of Pakistan, Lahore,
Muhammad Siddique Khan PW.8
Manager, HBL, Sadar Bazar, Sahiwal
Syed Muhammad Ahmed PW.9
Gillani, Officer UBL, Main Bazar
Branch, Sahiwal.
Muhammad Nasim Officer, twice MCB. High Street, Sahiwal examined
Khadim Hussain, Patwari PW. 10
Halqa, 90/9-L
Muhammad Idrees, one of the PW. 11
plaintiffs.
Zahoor Ahmad, Halqa PW.12
Patwari, Chak No.90/9-L
Khadim Hussain, Halqa PW.13
Patwari, Chak No.55/G.D.
Sarfraz Ali Shah, Office Qanugo PW.14
Tehsil Sahiwal.
Shafique Hasan, Ahlmad, HVC PW. 15
Branch, D.C.Office, Sahiwal.
Muhammad Yousaf s/o Nawab Din. PW.16
Asghar Ali s/o Niaz Ahmad, PW.17.
8. The documentary evidence produced by both the parties is as under:--
Ex. P-1/A is Jamanbandi of Mouza 87/9-L for the year 1983-84, Ex.P-1 and P-2 are Account opening form about current Account No, 1988, Ex.P-2/A is jamanbandi of Mouza 88/9-L,Ex.,P-2 is Specimen signatures of Conville, Ex.P-3 is Register Dakhil Kharij Mahal No.88/9-L, Ex.P-3/A is Cheque of Rs. 100000 (ABL), Ex. P-3A is savings account MCB No. 255071, Ex.P-3/1 is Draft Purchase Rs. 250000, Ex. P-3/B is cross cheque issued by M. Idrees of David Henry, Ex.P-3 is letter to HBL Ex, P-4 is register Hakhil kharij Mahal No. 87/9-L, Ex.P-4 is savings account MCB, Ex. P-4/B is credit voucher to Ex.P-5 is order of Collector Sahiwala, Ex.P-5 is receipt by LHG Conville for consideration Land Rs. 2500000/-, Ex. P-6 is letter by O. G. Foster to Governor of Punjab, Ex. P-6 is order of AC/Collector, Ex. P-7 is application to review of Mutation No. 47, Ex. P-7/11 is summary of Governor and orders on it, Ex, P8 is observation of Governor and order of DC, Sahiwal and application to review of Mutation No. 163, Ex.P-9 is report by MBR and order of Commissioner Multan Ex. P-10 is information report of DC and order of Member BOR, Ex. P-11 is Order of Chief Land Commissioner Ex. P-12 is Memorandum from DC Sahiwal, Ex.P-13 is Demand Draft, Ex. P-14 is statement of account, Ex.P-15 and Ex-P-16, 17 are Card S.F and account, Ex.P-18 is roznamcha waqiati, Ex.P-19 is sale-deed, Ex-P-20 is letter in handwriting of DW.1, Ex.P-21 and 22 are letter in handwriting of DW.1, Ex.P-23 is Rapat No. 228, Ex.P-24, 25, 26 and 27 are Register Haqdaran Khata No. 3, 1, 2, Ex. P-28 is order by DLC, Ex. P-29 to P-42 are Mutations No. 19 to 31, Ex.P-43 is Order of Member FLC, Ex.P-44, 45, 46, 47, 48 are order of DLC, Ex. P-49 and 50 are Mutations No. 47 and 163, Ex. P-51 is Dhal Bash for the years 1982-1989, Ex.P-52 is order of Additional District Judge, Ex.P-53 is amended written statement, Ex. P-54 is order of Civil Judge, Ex.P-55 is petition under Order 6 Rule 17 C.P.C., Ex.P-56 is amended written statement, Ex. P-57 is order of Civil Judge, Ex. P-58 is petition under Order 6 Rule 17 C.P.C, Ex.P-59 is amended written statement, Ex. P-60 is order of civil Judge, Ex.P-61 is Application under Order 6 Rule 17 C.P.C, Ex.P-62 is amended written statement Ex.P-63 is order of Civil Judge, Ex-P-64 is application under Order 6 Rule 17 CPCmEx.P-65 and 66 are General power of attorney by Covelli and Mark A, B, C, D are General power of attorney.
Ex.D-1 is copy of specimen signature of D.H. Conville, Ex. D-1/A is Mutation No. 62, Ex. D-2/A is Mutation No. 199, Ex.D-2 is copy of application for opening account, Ex-D-3 is letter to Manager MCB, Ex.D-3AB, 5A, 6A, 7A, 8A, 9A, 10A, 11A, 12, 13, 14, 15, 16 17, 18, 19, 20 are different plaints, amended written statements, orders and khasra gardawari Kharif, Exp-21 and 22 are mutations, Ex. P-23 is appeal, Ex-P-24 is order in appeal Ex.P-25 and 26 are judgments of Additional District Judge, Ex, P-27 and 28 are order in revision, Ex. P-29 and 30 are applications, Ex.P-31, 32, 33 are copy of Roznamcha Waqiati, Ex.D-34 is Mutation No.29, Ex.p-35 is sale-deed, Ex.D-36 is Mutation No.32, Ex.D-37 is sale-deed, Ex.D-38 is Mutation No. 40, Ex.D-39 16 sale-deed, Ex.D-40 is Mutation No. 41, Ex.D-42 is Mutation No.42 Ex-D-43 is sale-deed; Ex.D-44 is Mutation No. 131, Ex. D-45 is sale-deed, Ex. D-46 and 47 are mutations, Ex. D-48 is sale-deed, Ex.D-49 and 50 are mutations, Ex. D-51 is sale-deed, Ex.D52 is Mutation No. 146, Ex,D-53 is sale-deed, Ex,D 54 is Mutation No. 147, Ex.D-55 is sale-deed, Ex. D-56 and 57 are mutations, Ex-D-59 is copy of suit, certificate issued by Peter Henry Notary Public, and Power of Attorney, Ex, D-60 is Power of Attorney Ex, D-61 is suit for D & PI, Ex-D-62 is Power of Attorney, Ex. D-63 is certificate, Ex-D-64 is Power of Attorney, Ex.D-65 is suit for D & PI, Ex.D-66, 67, 68 are mutations, Ex. D-69, 70 and 71 are Tamleek Nama, Ex.D-72 to Ex.D-75 are Power of Attorney. Ex, D-76 is Gift deed, Ex.D-77 is order of Civil Judge, Ex. D-78 is decree sheet, Ex.D-79 is judgment, Ex.D-80 is decree sheet, Ex.D-81 is deed of settlement, Ex.D-82 is order sheet, Ex.D-83 is C.C. order sheet, Ex.D-84 is deed of settlement, Ex. D-85 and 86 are C.C. Order sheets, Ex. D-7 is deed of settlement and Ex.D-88 to 95 are C.C. Order sheets and Deed of settlement.
9. The learned Civil Judge vide judgment and decree dated 04.04.1996 dismissed the suit with costs; appeal filed by the appellants-plaintiffs was also dismissed by the learned Additional District Judge, vide judgment and decree dated 21.05.2005, confirming the judgment and decree of the trial Court.
10. Learned counsel for the appellants submits that; the judgment delivered by the Courts below is not a judgment as defined in Clause 9 of Section 2 and Rule 4 and 5 of Order 20 C.P.C. The learned trial Court instead of recording its own judgment on the issue has reproduced the verbatim wording of the written arguments, submitted by learned counsel for the respondents in the trial Court, which is also made part the record of the trial Court. The judgment and decree is against the provisions of Section 44-A of General Clauses Act, which requires the learned Judge to give findings and apply his judicious mind, while recording any findings on the facts as well as on the law of the case. Further submits that; since the judgment of the trial Court is only an outcome of reproduction of written arguments, submitted by learned counsel for the respondents/defendants. The appellate Court under the law was required to remand the case to the trial Court with the direction to record its own findings on all issues, after discussing the fact and evidence led by the parties. The learned lower Appellate Court failed to apply the correct law by not remanding the case and also erred at law, while dismissing the appeal by not recording its own findings as required by Rule 31 Order 41. C.P.C. The learned Additional District Judge dismissed the appeal by simply reproducing the findings of the trial Court and also some portions of the written arguments of counsel for the respondents without giving its findings on the issues by upholding the decision of the trial Court on all the issues. The practice of adoption of judgment of trial Court and written arguments is not approved, but is rather depreciated by the Superior Courts and such judgment of both the Courts below are liable to be set-aside on this ground only and case be remanded to the trial Court to rewrite the judgment by recording its own decision by examining the evidence of parties on the record. Reference in this respect is made to Ghulam Mohi-ud-Din vs. Chief Settlement Commissioner(Pakistan), Lahore and others (PLD 1964 S.C 829), Balwant Singh vs. Baldev Singh and others (AIR 1921 Lahore 119), (Mennem) Venkayya and others vs. Emperor (AIR 1928 Madras 1130) and Muhammad Nawaz Shah vs. Imam Bukhsh and four others (2000 YLR 1456 (Lahore). Also submits that; the findings on Issues No. 23 to 25 are perverse, passed in violation of principle laid down by the Superior Courts and result of mis-appreciation of fact on the record and miscarriage of justice took place. As per law laid down by the Superior Court, the First Appellate Court is required to apply its own independent mind to the facts and law of the case and should not countersign the findings of the trial Court. Reference is made to Lahore Development Authority Lahore and others vs. Saima Riaz and another (2003 YLR 1579). Further submits that; the judgment pronounced by the trial Court as well as the learned lower Appellate Court is not in accordance with law, as it does not contain statement of grounds for decision. Both the Courts below had failed to discuss the facts, evidence, given their expression of conclusion arrived at after due consideration of evidence and the arguments submitted by the counsel. The judgment of the learned lower Appellate Court, under appeal, is noting but reproduction of judgment of the trial Court, which is not proper and in accordance with law. Reliance has been placed on Muhammad Akhtar vs. The State (PLD 1957 SC 297). On merits, it is submitted that oral gift made by Colonel Conville to his grand daughter on two pieces of land in March, 1969, evidenced by Ex. P. 40 and Ex. P. 42 was violative of provisions of Section 123 of the Contract Act. Both the Courts below erred in law and did not take note of the facts and circumstances of the case and in a slipshod manner decided the matter; further submits that the judgment and decree of the learned trial Court is against the provisions of Section 24-A of General Clauses Act and the learned Judge did not apply his judicious mind; Submits that the learned Addl: District Judge did not take note of the illegalities and irregularities submitted by the learned trial Court; the judgment of the trial Court was a nullity in the eye of law. In this respect reliance is placed upon the judgment reported PLD 1964 S.C. 829, AIR 1921 Lahore 119 and AIR 1928 Mad 1130 (supra). Further submits that the findings on Issues No, 32-35 are perverse having been passed in violative of the principles and law and are result of misappreciation of the facts on record; further submits that if the appellate Court's judgment forming reproduction of trial Court's judgment without considering material facts; it had been held by the superior Courts that the same were treated to be improper and of doubtful validity. Reliance is placed upon the reported judgment PLD 1957 SC 297 (supra). Further submits that the oral gift of land by Colonel Conville to his grand daughter of the two pieces of land in March 1969 evidence by Exh.P/40 and P/42 was violative of provisions of Section 123 of the Contract Act which compulsorily required it to be through a registered deed. Although the provisions of the said section were not then extended to Punjab in the year 1969, yet the case law consistently held that despite its non-application, the principles contained therein would still apply. Further submits that the gift favouring grand daughter of Colonel Conville had to be regularized by the Land Reform. Authorities in view of the provision of the Land Reform Enactments. The mutations were declared to be void by the Land Commissioner, Chief Land Commission and the Federal Land Commissioner vide Exh: P/11-A P/53 and P/59 respectively which attained finality; further submits that admittedly PW-11 was the General Attorney of Col. H.G. Conville by deed of Attorney dated 21.10.1974 and having paid the full consideration for total ownership to the principal(proved through Ex.P/5 and P/19 dated 11.11.1976) and his authority as attorney had become irrevocable in accordance with the provisions of Section 202 of the Contract Act and resultantly the deed of attorney survived even after the death of the principal. Further submits that all these factual things were brought to the notice of the learned lower Appellate Court who did not appreciate the things and even did not frame any issue and misread the entire things without applying proper principle of law. Further submits that the General Power of Attorney to PW-11 by Clair Benedicta, Respondent No. 1 through guardian on 17.12.1976 i.e. just after the date of sale by Col. Conville was also an irrevocable attorney as the consideration had already been received by the original owner further submits that even the provisions contained in Section 202 of the Contract Act the Benami's power of attorney favouring PW-11 even through her guardian survived despite attainment of majority by her majority; hence the findings on issues 32-35 can not be allowed to remain on case file for lack of application of conscious mind; as the same has been deprecated by the superior Courts; further submits that proper issues were not framed and there was an element of. repetition while framing issues out of 47 issues approximately 10 issues were the exercise of repetition and just nothing. Further submits that the learned appellate Court without applying its mind and jurisdiction did not take heed of the final decisions of the Land Reforms Authorities on the question of the validity of the said gift and erroneously substituted the said final decisions with its findings which is not permissible under the law; hence the findings require to be set aside being perverse and ultra vires of law. Further submits that the Courts below had committed a grave error of law while coming to conclusion that the Appellant/plaintiffs could not prove the documents in accordance with the manner as laid down in Qanoon-e-Shahadat Order 1984, whereas the reasons for such an ambiguous view are not well settled and are against the record and contrary to law, further submits that the title of defendant/Respondent No. 1 to the suit property having been declared void by the competent Land Reforms Authorities who never remained owner in possession of the disputed land and was not competent to alienate the suit land to any one; further submits that the subsequent alienation in favour of defendant/Respondent No. 5 by Respondent No. 1 also could not be held to be immune from challenge by the appellants who derived their title to the suit land from the original owner; hence the impugned judgments and decrees passed by the Courts below may very kindly be set aside and the instant appeals may be allowed to meet the ends of justice.
11. Conversely, learned counsel for the respondents submits that the judgments and decree passed by the Courts below are in accordance with law and the Courts below rightly dismissed the plaint as well as appeal of the appellants; further submits that according to the Banker's Books Evidence Act, 1891 S.2 (3)-(8) that in all the cases it is only a certified copies from a Banker's Book which is relevant; hence the documents produced by the plaintiffs in this case were not from any book of the bank neither is certified in the manner as prescribed by law by the bank officers. Further submits the power of attorney does not contain any clause that the same was executed for consideration; hence the contention put forth by the learned counsel for the appellants had no force keeping in view Section 202 of Contract Act 1872; further submits that where a talukdar makes a deed of gift in favour of his minor son of the whole of his estate reciting in it that the estate is heavily indebted and that he desires to put it under the superintendence of the Court of Wards to liquidate those debts, such recital is not considered to be inconsistent with the genuineness of the gift and can not make the deed of gift a fictitious one; further submits that when statement of a witness which was material to the controversy of the case particularly stating his case when not challenged in cross examination then such unchallenged statement would be given full credit and usually accepted as true, unless and until displaced by reliable, sound and cogent evidence. In this respect reliance is placed upon the reported judgment Ram Bharose and others vs. Diwan. Rameshwar Prasad Singh (AIR 1938 Oudh 26); further submits that the plaintiffs have to prove that Col. L.H.G Conville in order to protect his land from land reforms purported to make a gift of same agricultural land in favour of his sons and grand children but inspite of this he actually remained in possession and continued to mange it; further submits that there is nothing in Section 122 of Transfer of Property Act to limit acceptance of a gift to an express acceptance. The acceptance of gift may be express or implied. In this respect reliance is placed upon judgment reported titled Mt. Anandi Devi vs. Mohan Lal and others (AIR 1932 All 444); further submits that in Muhammadan Gift the objection as to delivery of possession is one which can be taken either by the donor himself or by his heirs and in case where the donor is himself supporting the gift no effect can be given to an objection by a third party who is in possession and claims adversely to both donor and the donee. In this respect reliance is placed upon the reported judgment titled Fazal Ahmad vs. Mst. Rakhi (PLD 1958 (W.P) Lahore 218); further submits that where execution of document had been denied by its alleged by its executant by disowning his/her signature/thumb impressions, it would become duty of beneficiary under the document to at once apply to the Court for getting thumb impressions compared from Handwriting Expert. In this respect reliance is based on the reported judgment titled Khushi Muhammad and others vs. Noor Bibi and others (2005 YLR 2645); further submits that material produced by plaintiffs did not indicate that execution of Tamleeknama (alleged Sale P5 + P19 of this case) was effected during lifetime of alleged donor; it is settled law that any person acquiring by gift, inheritance, purchase or otherwise any right in any estate as a land owner, would within three months from date of such acquisition, report his acquisition of right to Patwari of estate who would record such report in his daily diary and furnish copy of such report to person making the report. Reliance is placed upon the judgment reported titled Wali Muhammad and others vs. Mst. Zainab Bibi and others (1996 MLD 869). Further submits that it is wrong to assume that every general power of attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object. In this regard reference is made to reported judgment titled Fida Muhammad vs. Pir Muhammad Khan and others (PLD 1985 S.C 341). Further submits that General Attorney must take special permission from principal while transferring his principal's property in his own name or in the name of his close fiduciary relations. Reference is made to reported judgment titled Jamil Akhtar and others vs. Las Baba and others (PLD 2003 SC 494); further submits that under Section 52 of the Transfer of Property Act, a transfer of immovable property in suit to which any right is directly or specifically claimed is not completely prohibited. Reliance is placed upon the reported judgment titled Mst. Surraya Begum and others vs. Mst. Suban Begum and others (1992 SCMR 652); further submits that according to Limitation Act Article 113 suit for specific performance of contract, limitation for filing suit for specific performance of contract being three years from date fixed in agreement or where no such date was fixed from the time of refusal of promissory to perform his part; hence suit filed after about six years from alleged refusal of promisor to perform his part of agreement held was barred by time. Reliance is placed upon reported judgment titled Hassan Muhammad vs. Muhammad Sharif (1989 MLD 1410). Further submits that according to International Law the principle of interpretation is that where application of any statute involved consideration of any International law, attempt should be made to interpret the statute in consonance with International Law, where, however, language of statute is unambiguous and does not permit such interpretation, the statute shall prevail. Reliance is placed upon reported judgment titled Marine Engineers Association of Pakistan vs. Shipping Master, Govt. of Shipping Office, Govt. of Pakistan, Karachi (1989 CLC 588). Further submits that according to Order II Rule 2 and Section 11 C.P.C suit for declaration relating to mutation, dismissal of suit and appeal, whether subsequent suit brought by the plaintiffs was barred by Order II, Rule 2 C.P.C; hence claim which was omitted and relinquished, by them in their previous suit was not only barred by Order II, Rule 2 C.P.C but was also hit by the principles of constructive res judicata under Explanation IV of Section 11 C.P.C. Reliance is placed upon reported judgment titled Safdar Ali and others vs. Muhammad Nawaz and others (2006 YLR 1133). Further submits that it is settled law that Second Appellate Court could not interfere with concurrent findings of fact recorded by Courts below simply on the ground that on reappraisal another view of evidence was possible; hence concurrent finding of fact recorded by Courts below could be interfered with by Second Appellate Court only on the ground of misreading of evidence, non-consideration of any material piece of evidence or perverse appreciation of evidence on record. Reliance is placed upon reported judgment titled Muhammad Amir vs. Khan Bahadur and another (PLD 1996 SC 267). Further submits that the trial Court as well as learned lower appellate Court rightly applied their judicious minds and dismissed the suit as well as plaint of the appellants. Further submits that there is no element of misreading or non-reading of the material available before the two Courts below; hence the instants appeals are liable to be dismissed with costs.
12. I have heard learned counsel for the appellants as well as learned counsel for the respondents and have perused the record with their able assistance.
13. The learned trial Court while recording its findings on Issues No. 32 to 35 in Para No. 75 from Line No. 8 to page 84 of the judgment up to Line No. 11 starting from the word:
"that the gifts made by ------------------ A third party like the plaintiffs has no such rights".
had reproduced the written arguments, submitted by counsel for the respondents. In this regard reference can be made to Page No. 12 of the written arguments attached with the record of the trial Court which reiterate the arguments. That findings are based upon the reproduction of the written arguments of learned counsel for the respondents. Thereafter, the learned trial Court without giving its own independent observation, discussion and comparison of the arguments of both the parties, proceeded to decide the issues against the appellants-plaintiffs. Similarly, Issues No. 36 to 39 starting from page No. 85, the word:
"All these issues are interconnected uptill page No. 105 line No. 8 i.e. Registration Act, 1908."
Herein again, without discussing the evidence, the learned trial Court decided the issues against the appellants-plaintiffs. Again findings on Issue No. 40 starting from Page No. 105 to Page No. 108. Likewise, Para No. 88 from Line No. 5 to page 111 of the judgment upto Line No. 18 starting from the word:
"they produced the account -------------------- and not the alleged Rs. 4,25,000.00".
is reproduction of the written arguments, submitted by counsel for the respondents. Findings on Issues No. 42 to 43 starting from Page No. 113 starting from Line No.4:
"if is proved from the contents uptill Page No. 115"
is also the reproduction of written arguments, submitted by learned counsel for the respondents. Issue No. 44 starting from Page No. 116 Line No. 9 i.e.
"this issue pertains to the objection --------------- to Page No. 119 Line No. 13. Similarly, Issue No.45, at Page No. 120 of the Judgment Line No. 3 starting from the word"
"in view of the discussion -------------- admittedly with the Defendant No. 5 since 1990".
Issue No. 46 at Page No. 120 of the judgment is also the reproduction of the written arguments, submitted by counsel for the respondents.
14. From the comparison made above it is evident that judgments and orders of both Courts below are nothing but a recapitulation of the written arguments of counsel for the respondents/defendants. The evaluation of evidence led by both the parties and his conscious efforts to reach at conclusion is missing. The learned trial Court by simply writing down that learned counsel for the plaintiffs fails to rebut the arguments, proceeded to decide the issues against the appellants-plaintiffs, is not a conscious effort on the part of learned trial Court, as he is required under the law.
15. A judgment as defined in sub-clause 9 of Section 2 C.P.C. means:
"statement given by the Judge of the grounds of a decree or other".
16. A judgment means the judicial decision of a Court or a Judge, its need not necessary deal with all the matters in issue, in a suit, but, may determine only those issues, the decision of which will have the effect, either adjudicating all the matters in controversy or will result in a final disposal of the suit. The essential element of a judgment is that there should be a statement of grounds for decision. It should contain a conscious statement of the case, the points for determination, decision of the Court with regard to issues and the reason for decision. The judgment should not only state finding but also the evidence and how it supports the finding. Reliance is placed on cases titled Z.Z. Ahmad (Retd) Deputy Inspector General of Police vs. National Bank of Pakistan (PLD 1991 SC 363).
Mst. Nasim Bashir vs. Abdul Jabbar (2004 MLD 510) Abdul Zahir vs. Haji Gulab (2002 CLC 4) and Pakistan Tobacco Company Ltd. vs. Pakistan Chest Foundation (PLD 1998 Lahore 100).
17. It is a settled principle of law that a Court is required to give its own reasons by discussing the facts and the evidence on record for pronouncing a judgment and if the Court fails to give its own reasons, it would be deemed, that the Court had acted with material irregularity and illegality and in that eventuality, the decision or the judgment given by the Court would not be sustained in the eye of law. Reference can be placed on Ali Muhammad vs. Mohammad Hayat and others 1982 P.S.C (cases) 804, (PLD 1998 Lahore 100 (supra) and Anjum Tajran Outside Delhi Gate Lahore and 15 others vs. Chief Administration of Auqaf Punjab Awan-e-Auqaf and another (2001 CLC 136).
18. Perusal of the judgment of the trial Court as well as that of learned lower Appellate Court clearly reveals that the learned trial Court while deciding the most material issues starting from Issues No. 31, to 46 only recorded and recapitalized the arguments of learned counsel for the respondent-defendants and thereafter without discussing the same; decided the issues simply saying that the counsel for the appellants-plaintiffs fails to rebut the said arguments, whereas, the Court was required to give its own finding. Since the judgments of both the Courts below before me is nothing but to recapitualize of the arguments of counsel for the respondents without any indication, discussion or opinion of the Court with regard to the said arguments or the evidence on the record.
19. As discussed above, the term "judgment and order" in its wider term, may be said to include the decision given by a Court on question or questions on issue between the parties to a proceedings before the Court. A final judgment it determines the principal matter in question conclusively so that if it is given for the plaintiff it is conclusive against the defendant and if it is given for the defendant, it is conclusive against the plaintiff. Such judgment being judgment in personam should fully determine their rights and a Judge is required to have used all his skills in highlighting each and every point under controversy and his own reasons for agreeing with either of the parties on those points.
20. Sub-rule (2) of Rule 4 of Order 20 C.P.C describes that the judgment shall contain the issues statement of the case, points for determination, reasons thereon and the reasons and such decision. Since, the Court has failed to give its own decision and the reasons for decision on the issue. Judgment, so pronounced, cannot be termed to be judgment as defined in sub-clause (9) of Section 2 and sub-rule (2) of Rule 4 of Order 20 C.P.C., as held in Ghee Corporation of Pakistan Ltd. and 2 others vs. Habib Bank Ltd and 2 others (PLD 1984 Lahore 421). A judgment passed on non-speaking order is liable to be set-aside and if a judgment is not in accordance with law, the same is liable to be set-aside and required a fresh decision from the Court after re-writing the judgment on the same evidence.
21. Similarly, Order 41 C.P.C relates to appeal from the original decree.
Rule 31 of Order 41 C. P.C reads as under:--
"31. Contents, date and signature of judgment:--The judgment of the Appellate Court shall 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 revered or varied, the relief to which the appellant is entitled"
According to this rule, the appellate judgment should state points arising for determination, its decision thereon, and the reason for its decision, it must apply its own independent mind on the controversy and itself reviewed the record for the purpose of pronouncement its judgment. 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 such order, it must states its reasons in the decision.
22. The learned lower Appellate Court has failed to give its reasons for the decision arrived at while dismissing the appeal of the appellants and such pronouncing simply relying upon the reproduction of the decision of the trial Court on the issues, especially when the decision of the trial Court is also not in consonance with the law laid down by the Superior Court is not a judgment in the eye of law. As observed by the learned Judge in 2000 YLR 1456 (supra) that--
"some members of the judiciary show reluctance in following the prescribed procedures and come out with their own procedure for the sake of convenience, in deciding the fate of cases involving valuable property rights of the litigants. Forgetting that they were not wiser than the law-makers who drafted the Civil Procedure Code, which has stood the test of time for over a century."
The Civil Court are, therefore, to strictly follow the provisions of the Civil Procedure Code both in letter and in spirit arid save wastage of time, which take place on account of their aberrations.
23. Without dilating upon the merit of the case and for what has been discussed above, judgments & decrees of both the Courts below are set-aside; the case is remanded to the District Judge, Sahiwal, with the direction that he may entrust it to the Senior Civil Judge, Sahiwal, who is directed to re-write the judgment on the same evidence, after hearing both the parties on issues separately and as per observations given herein-above, should make all the efforts in deciding it afresh within one month from 1-9-2007. The parties are directed to appear before the Senior Civil Judge, Sahiwal on 1.9.2007. A progress report shall be submitted by the learned. Senior Civil Judge, Sahiwal by the 30.9.2007.
(R.A.) Case remanded.