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Civil Appeal No.23 of 1985, decided on 25th April, 1988.

(On appeal from the judgment and decree of the High Court Civil Appeal No. 58 of 1983).

---O. XLI, R.23--Remand--Adverse possession--Suit for possession of land was dismissed by Trial Court or the ground that plaintiff failed to prove that any land out of particular survey number which he owned was in the possession of respondents- While deciding issue of adverse possession Trial Court found that since the plaintiffs failed to prove that any of their land out of said survey number was in possession of the respondents the issue was decided against plaintiffs--No oral or documentary evidence was discussed but the suit of plaintiffs was dismissed for their failure to prove title over the suit land and Trial Court did not feel advised to decide the issue of adverse possession in its true perspective--Finding of Trial Court not having been rendered after due application of mind, Supreme Court remanded case to the High Court for decision of the issue.

---O. XLI, R. 22--Appellant at the hearing of the appeal was entitled to support the decree not only on the ground decided in his favour but also on the ground decided against him without filing any cross-objection--If a, suit brought by A against B is decided in B"s favour on one contention and against him on the other contention but the suit is dismissed, B may support the decree at the hearing of the appeal not only on .the ground decided in his favour but also on the ground decided against him without filing any cross-examination.

Lala Gauri Sanker v. Janki Pershad (1809) 17 Cal. 809 ref.

---O.XLI, R. 2--Provision of O.XLI, R.2 gives power to support the decision of the lower Court; not to attack it.

--- Supreme Court---Adverse possession--Decision against appellant by District Judge was assailed before High Court on the grounds that suit land did hot fall within the area of survey number Which was under the ownership of the respondent but fell within the area of another survey number and in the event it fell within the survey number which was owned by the respondent appellant"s adverse possession had matured into title--High Court omitted to decide question of adverse possession thus failed to apply its mind to the matter of the case and did not decide a most important point--Disregard to the provision of law or inadvertent omission had not only wasted valuable time of the parties but had, also caused unnecessary expense and trouble to them--Case was remanded to the High Court in circumstances.

---O. XLI, R.23--Remand--Supreme Court--Courts should pronounce their opinion on all relevant points which arise or have been raised in a case--Omission on the part of the High Court, from whose orders the appeals are permissible to the Supreme Court to decide all such points, creates difficulty not only for Supreme Court but also the litigants--Failure on part of the High Court to decide vital point is a vital error and cannot be lightly ignored--Such an omission, in fact, shows misapplication rather non-application of the mind--Such a situation, held, warranted remand.

Gouranga Mohan Sikadar v. The Controller of Import and Export 1970 S C M R 323 and Adamjee Jute Mills Ltd: v. The Province of East Pakistan and others P L D 1959 S C (Pak.) 272 ref.

---O. XLI, R. 23--Remand--Supreme Courts--High Court and "the Supreme Court are Courts of record and both the Courts, and for that matter every Court, are expected to decide every important issue involved in a case--When the High Court leaves undecided an important matter raised or arising out of the averments, it may be said that it had decided the case in vacuum--Supreme Court, in such cases, naturally would feel poor without the wisdom of the High Court and deciding a matter without having the view point of the High Court may not be desirable--Such a situation would warrant remand of case.

---O.XLI, .23--Remand--Supreme Court--Omission on the part of the High Court to apply its mind to important points had prejudiced the appellant"s case inasmuch as the possibility could not be excluded that had the High Court considered the point the conclusion might have been different--Such being a substantial objection to the judgment warranted remand of the case.

---O.XX, R.5--Remand--Supreme Court--Judgment should conform with the provisions of the law, i.e. it should contain concise statement of the case, the points for determination raised or arising in the case, a decision thereon and reasons for each decision--Where the judgment ignored the important points referred for decision, it flouted the principles to be followed while writing judgment and such judgment being not a valid one, remand was desirable--[Judgment].

Riaz Ahmad v. Amin Baig P L D 1978 S C (AJ&K) 161 and Mir Haider Shah v. Azad Government Civil Appeal No.14 of 1981 ref.

---O. XX, R. 5--Judgment--Requirements--Judicial order--Such an order must be speaking manifesting by itself that Court had applied its mind to the resolution of all the material issues--Where such a treatment was missing in a judicial order case was remanded by the Supreme Court.

Lala Gauri Sanker v. Janki Pershad (1809) 17 Cal. 809; Sri Ranga Thathacharia v. Srinivasa Thathachariar A I R 1927 Mad. 801; Kishan Kishore v. Din Muhammad and others A I R 1929 Lah. 684; Raja Ram v. Lehna and another A I R 1942 Lah. 87; Mst. Jantan and others v. Khan Muhammad and others P L D 1954 Lah. 371; Muhammad Nawaz v. Mian Muhammad Anwar Abbasi and others P L D 1982 B J 33; Gaouranga Mohan Sikadar v. The Controller of Import and Export 1970 S C M R 323; Adamjee Jute Mills Ltd. v. The Province of Fast Pakistan and others P L D 1959 S C (Pak.) 272; Riaz Ahmad v. Amin Baig P L D 1978 S C (AJ&K) 161 and Mir Haider Shah v. Azad Government Civil Appeal No.14 of 1981 ref.

Kh. Muhammad Saeed, Advocate for Appellant.

Raja Sher Muhammad Khan, Advocate for Respondents.

--Respondents Nos. 1 to 9 herein (plaintiffs in the original suit) sued Muhammad Hussain, appellant herein, in the Court of original civil jurisdiction for possession of the land measuring 3 kanals and 10 marlas comprising survey No.4 situate in the area of village Mera, Tehsil Rawalakot, inter alia, on the ground that they are owners of the land measuring 17 kanals and 17 marlas comprising survey No.4 but Muhammad Hussain, appellant herein, (defendant in the original suit) had illegally occupied the land out of this survey number measuring 3 kanals and 10 marlas in their absence and now he is hesitant to part with its possession in favour of respondents-plaintiffs.

2. The defendant (appellant herein) while repudiating the claim of the respondents averred that no piece of land from survey No.4 is in their possession and the land in suit falls within the area consisting of field No.3, and, they hold its possession as owners. In alternate he pleaded adverse possession over the suit land. The respondents (plaintiffs) according to him, also- tried to disturb his settled possession in the year 1950 but without any success. His possession over the suit land, thus, according to him, for the above stated reasons, had matured into title by virtue of adverse possession.

3. The learned Sub-Judge dismissed the suit of the respondents vide order dated 29th June, 1976. On appeal by the plaintiffs (respondents) the learned Additional District Judge, Poonch, while reversing the finding of the Sub-Judge, found that the land measuring 3 Kanals 10 marlas out of survey No.4 owned by the respondents, was illegally retained by the appellant and accepting the appeal, allowed a decree for possession of the said land in favour of respondents (plaintiffs) through his order dated 30th July, 1983. The appellant (defendant) then rolled in an appeal before the High Court which was disallowed by a learned single Judge on 25th of October, 1984. This appeal, by leave, calls in question the said judgment of the High Court.

4. We have heard the learned counsel for the parties: Kh. Muhammad Saeed, the learned counsel for the appellant, without adverting to the merits of the controversy, submitted that the appellant (defendant) repudiated the claim of possession of the suit land on two grounds: first being that the appellant does not occupy any part of the land comprising survey No.4 and assuming but not conceding that the suit land forms the part of survey No.4, his possession over the suit land had matured into title through prescription but the learned" Judge in the High Court has failed to attend and decide the alternative plea of adverse possession which omission has perpetuated injustice and necessitates remand of the case to the High Court for deciding the issue.

5. Raja Sher Muhammad Khan, the learned counsel for the respondents, concedes that the submission made by Kh. Muhammad Saeed, has substance. He does not contest the remand of the case:

6. We find that the question of adverse possession was specifically raised in para. 4 of the memorandum of appeal before the High Court and it appears that it was also argued and agitated during the course of arguments. We may with advantage reproduce para. 3 (relevant portion) of the judgment of the High Court. It reads as under:-

"The defendant-appellant denied the claim of the plaintiffs and stated that they were in occupation of the land comprising survey No. 3, which lies in their ownership and they have not" occupied any part of the land comprising survey No.4. They stated that the plaintiffs tried to interfere in their possession and to occupy the suit land in June, 1950, but they failed to achieve the object, therefore, their adverse possession has also ripened into ownership."

7. The learned Judge in the High Court, it appears, inadvertently failed to decide the important issue of adverse possession agitated and argued by the appellant.

8. We have considered the arguments advanced at the bar and are of the view that the contention raised by Kh. Muhammad Saeed has substance and case is to be remanded. The reasons are:-

(a) The respondents-plaintiffs" suit was dismissed by the trial Judge on the ground that they failed to prove that any land out of survey No.4 was in possession of the appellant. While deciding the issue of adverse possession, the learned Sub-Judge however, found that since the respondents-plaintiffs failed to prove that any of their land out of survey No.4 is in possession of the appellant, the issue is decided against the defendant (appellant). This finding, it appears", has not been recorded after due application of the hind. No documentary or oral evidence whatsoever has been discussed. It seems that since the plaintiffs" suit was dismissed for their failure to prove title over the suit land, the learned Sub-Judge did not feel advised to decided the issue of adverse possession in its true perspective.

Be as it may, the respondents" claim for possession was disallowed, there was no occasion for the appellant to file an appeal before the District Judge with respect to the finding of adverse possession decided against him by the trial Court. It may be observed that under Order 41, Rule 22, Code of Civil Procedure, the appellant at the hearing of the appeal was" entitled to support the decree not only on the ground decided in his favour but also on the ground decided against him without filing any cross-objection. If a suit brought by A against B is decided in B"s favour on one contention and against him on the other contention but the suit is dismissed, B may support the decree at the hearing of the appeal not only on the ground decided in his favour but also on the ground decided against him without filing any cross-objections. Lala Gauri Sanker v. Janki Pershad [(1809) 17 Cal.809] supports our view point.

Order 41 Rule 2, Code of Civil Procedure, gives power to support the decision of the lower Court; not to attack it. Sri Ranga Thathacharia v. Srinivasa Thathachariar (A I R 1927 Mad. 801) and Kishan Kishore v. Din Muhammad and others (A I R 1929 Lah.684) contain statement of law to the effect that a decree can be supported on an issue decided against a party but such a decree "cannot be attacked without filing cross-objections. The judgments cited by Raja Sher Muhammad Khan, i.e., Kishan Kishore v. Din Muhammad and others (A I R 1929 Lah.684), Raja Rain v. Lehna and another (A.I.R. 1942 Lah. 87), Mst. Jantan and others v. Khan Muhammad and others (P L D 1954 Lah.371) and Muhammad Nawaz v. Mian Muhammad Anwar Abbasi and others (P L D 1982 B.J.33) cover such like eventuality and not the eventuality which we face in the present case.

(b) The decision against the appellant made by the Additional District Judge was assailed before the High Court, as said earlier, on two grounds. First being that the suit land does not fall within the area of survey No.4, land is under the ownership of the appellant and falls within the area of field No.3 and in the event it falls within the area of survey No.4, the appellant"s adverse possession had matured into title. The learned Judge in the High Court, however, failed to decide the question of adverse possession. In these circumstances we are of the considered view that the High Court has failed td apply his mind to the merits of the case and omitted to decide a most important point referred to above. Disregard to the provisions of law or inadvertent omission has not only wasted the valuable time of the parties but has also caused unnecessary expense and trouble to the parties.

(c) In appealable cases it is always desirable that the Courts should pronounce their opinion on all the relevant points which arise or have been raised in a case. Omission on the part of the High Court, from whose orders the appeals are permissible to the Supreme Court to decide all such points, creates difficulty not only for us but also for the litigants. Failure on the part of the High Court to decide vital point, referred to above, is a vital error and cannot be lightly ignored. Such an omission, in fact, shows misapplication rather non-application of the mind. In Gouranga Mohan Sikadar v. The Controller of Import and Export (1970 S C M R 323) Mr. Justice Hamoodur Rahman, C.J. (as he then eras) considered the omission where the impugned order passed by the High Court did not disclose the application of the mind of the High Court to the merits of the case -that was before it. Relying on Adamjee Jute Mills Ltd. v. The Province of East Pakistan and others (P L D 1959 S.C. (Pak.) 272) his Lordship remarked:-

"In view of the fact that a substantial question was raised by the applicant invoking the writ jurisdiction of the High Court it was as observed by Muhammad Munir, C.J. the undoubted duty of the High Court to state what the precise point raised by the applicant was and the grounds on which it was rejected."

and the case was remanded.

These observations of their Lordships of the Supreme Court of Pakistan apply to the facts of the present case with equal force. The impugned judgment does no show that the learned Judge had applied his mind to all the points raised.

(d) The High Court and the Supreme Court are courts of record and both the Courts, and for that matter every Court, are expected to decide every important issue involved in a case. If the High Court leaves undecided an important matter raised or arising out of the averments; it may be said that it had decided the case is vacuum. Naturally, the Supreme Court in such cases would feel poor without the wisdom of the High Court and deciding a matter without having the view point of the High Court may not be desirable.

(e) It is our considered belief that the omission on the part of the High Court to apply its mind to the most important point, referred to above, had prejudiced the appellant"s case inasmuch as the possibility cannot be excluded that had the learned Judge of the High Court considered the point the conclusion might have been different. It is a substantial objection to the judgment and warrants remand of the case.

(f) It is also well-settled law that the judgment should conform with the provisions of the law, i.e. it should contain concise- statement of the case, the points for, determination raised or arising in the case, a decision thereon and reasons for such decision. The impugned judgment, in ignoring the important points referred to in the above paras. has flouted the principles to be followed while writing a judgment. Naturally, such an order cannot be considered a valid judgment and remand is desirable. Riaz Ahmad v. Amin Baig (P L D 1978 S.C. (AJ&K) 161), corroborates our view point. In that case it has been observed:-

"The impugned judgment does not show that the learned Judges applied their mind to all the points raised in the grounds of the writ petition. They omitted to decide two important points. This disregard to the, provisions of the law and inadvertent omission has not only wasted their valuable time but has caused unnecessary expense and trouble to the litigant public as well as encourage further litigation."

This view was also owned in an unreported case of this Court entitled Mir, Haider Shah v. Azad Government (Civil Appeal No.14 of 1981). It has been observed in that case:-

"Therefore, while reiterating our view in Riaz Ahmed v. Amin Baig etc. (P L D 1978 S C (A J & K) 161) we are constrained to remand the case for decision of the High Court especially on the point reflected above."

(g) Judicial order, as we know, must be speaking manifesting by itself that Court has applied its mind to the resolution of all the material issues because the litigants, who bring their disputes to the law Courts with the incidental hardships and expenses involved do expect a judicious treatment of their cases and their determination by proper orders. Such a treatment to this case is, missing.

On the above premises of the reasoning-while accepting the appeal and setting aside the judgment of the High Court dated 29-10-1984, we are constrained to remand the case back to the High Court with the direction that the High Court would decide the case afresh on the basis of the observations made above. It would be desirable that the appeal is entrusted to a learned Judge other than the one whose judgment is being impugned by this appeal. No order as to Costs.

M.B.A./220/S.C.A. Case remanded.

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