2870/2015 Const. P. Mushtaque Ahmed (Petitioner) V/S Mumtaz Ahmed and others (Respondent)
Sindh High Court
Bench: Hon'ble Chief Justice Mr. Justice Muhammad Shafi Siddiqui
Order Date: 29-OCT-18
The grounds assigned by the appellate Court while allowing the application under Order VII Rule 11 does not germane to the requirement for rejecting of plaint under Order VII Rule 11. This is no ground that the petitioner was not in possession of the suit property since last so many years. It is also immaterial that the father has not challenged the title of his own son / sons during his lifetime. This is not disputed that the property was purchased at the time when these claimants from whom respondent No.14 has acquired the property now were only minors. It is also not denied that there is no such specific denial as far as alleged rights of the petitioner are concerned as merely in possession of the suit property does not mean that the rights of the petitioner were also denied. At the most the right of the petitioner could be said to have been denied prima facie, when an attempt was made to execute the sale deed in favour of respondent No.14 Mst. Hina Perveen which was the right accrued to the petitioner to file a suit to seek declaration as made in the plaint, hence this is a case of conflicting findings of two courts below. The reasoning and findings assigned by the appellate Court insofar as rejection of plaint is concerned, is not sustainable under the law. The appellate Courts order is set aside, however, this being a mixed question of law and fact, trial Court is directed to frame issues amongst others and this being a preliminary issue, parties be directed to record evidence on this issue as well as on other issues as and when framed by the trial Court, however, since the matter is pending for quite some time, we expect that the trial Court shall conclude the trial and pronounce the judgment preferably in four (04) months with compliance report to Additional Registrar of this Court.Full judgment text for this case is not yet available on Pakistan Law Reports. Check the official Sindh High Court case law portal for the complete order.
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