Waseem Gul VS Shahid Jameel

JUDGMENT SHEET

PESHAWAR HIGH COURT ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

C.R.No.283-Al201 1 .

JUD GMENT

Date of hearing 16.03.2018.

Appellant / petitioner (Waseem Gul and another) by Mr. Muhammad AYub Khan, Advocate

Respondent (Shahid Jameel and another) by Malik Shahid Jameel, Advocate.

SYED ARSHAD ALL ./.- Throu gh the present revision petition, petitioners have called in question the judgment and decree dated 02.03-201 I passed by leamed Additional District Judge, Ghazi, whereby the appeal filed by the present petitioners against the judgment and decree passed by leamed trial Court was dismissed'

2.Brief, but essential facts of the instant case are that the present petitioners filed a suit before Civil Court at Ghazi for declaration to the effect that they are owners and in possession ofthe suit property described in the plaint on the basis of a registered gift deed No'581 attested on 25.05.1992. They also prayed for possession of a shop out of the total suit property which was occupied by the respondents/defendants' On being summoned, defendants contested the suit by filing their written statement. From divergent pleadings of the

parties, the leamed trial Court framed 08 issues and directed the parties to produce their respective evidence.

On conclusion of trial, the suit of the petitioners was dismissed by learned trial Court vide judgrnent and decree dated 15.11.2010. Petitioners challenged the said judgment and decree throtgh appeal No.83/13 before leamed appellate Court, which was also dismissed through judgment and decree dated 02.03.2011- The petitioners have challenged the saidjudgment and decree through present revision petition.

3.Argument heard and record perused'

4.Perusal of impugned judgment and decree dated 02.03.2011 passed by leamed appellate Court reflects that the leamed appellate Court has dismissed the appeal in slipshod manner albeit in haste' The leamed appellate Court has rendered no finding on issues as to which the parties were at dispute. The leamed appellate Court after referring to certain facts has rendered the r'I judgment in the following words, "in viau of the above' the appellants/plaintffi could neither prove genuineness of the deed bearing No.58t dated 25/02/1992 nor could substantiate their claim through cogent and solid evidence due to which appeal in hand is hereby dismissed with no order as to cost. File be consigned to record room after its comPletion" .

5 In the present case, the petitioners/plaintiffs claim their title on the basis of dower deed dated 24.2.1971Ex:PW2l2 through which donor had acquired title of the suit property and which was subsequently gifted to the plaintiffs through gift deed dated25.05-1992 Ex:PW1/I. In support of their claim, the plaintiffs produced Khalid Mehmood, Registry Muharrir as PW-1, who produced the said deed' The plaintiffs also produced two marginal witnesses of the said deed Muhammad Masood as PW-3 and Muhammad Hassan as PW-4' The learned trial Court while dismissing the suit had rendered findings on each and every issue keeping in view the relevant evidence of the parties, whereas the leamed appellate Court has rendered no reason in support of its judgment. The impugned judgment and decree of the leamed appellate Court might be correct in its result but it is deficient in its contents and has been rendered in violation of mandatory provisions of Order 41 Rule 31 C.P.C. The learned appellate Court, at least was required to frame points for determination and then should have rendered its reasons' Indeed the appeal is in continuation /r of suit, therefore, it is the duty of the leamed appellate Court to assess the entire evidence' pro and contra' produced by the parties, examine findings recorded by the learned trial Court and to give reason for upholding

or reversing the same. The leamed appellate Court was under legal obligation to decide the dispute in the manner prescribed by Order XLI, Rule 31, C.P.C. Indeed a statutory right of appeal confers on the parties to be reheard and the leamed appellate Court has to consider the controversy entirely afresh both as regard to facts and law and to substitute its own judgment for that of a sub- ordinate Court. The findings of the leamed appellate Court should be self explanatory, illuminative and in the nature ofa speaking order. It should be evident from the judgment that the Judge was conscious of the matter involved and the reasons rendered by the Judge has the reference from the evidence produced by the parties. In short, in case of final appeal the judgment of the leamed appellate Court is the judgment to have reappraised the evidence carefully as normally the superior Courts gives weight to the appreciation of facts rendered by the leamed appellate Court. A slam Kh an and others Vs.

Khushdil Khan and others 2015 MLD 213 Pesh awar.

Mst. Sarw ar Bano thro ush attorne v Vs. Province o f Sindh thro h Member B ard o Revenue deraba r' and 5 other,'s PLD 2015 Sindh 44 5 Javed and 19 others Vs, Abdul Rashid and. 4 others 2015 YLR 1362 Muh ammad Hanif and others Vs. Muhamamd Aslam and o thers 2016 CLC Note 80 Lahore Rawalp.indi

Bench and Mst. Bachho Vs. Abdul Oavvum alias Habibullah and 14 others 2015 CLC 805 Peshawar\.

6.For the reasons mentioned above, the instant revision petition is accepted, the impugned judgment and decree dated 02.03.2011 is set aside and the case is remanded to leamed Additional District Judge, Ghazi for decision afresh on merits in accordance with law and the observations made above, after calling the record and hearing the parties. The matter being old one, the leamed appellate Court is directed to dispose it of within a period of two months positively

ANNOUNCED JUDGE

*Aftab P.S/* Justice Syed Arshad Ali