2010 C L C 1138
[Quetta]
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
Haji GHULAM RASOOL and 3 others ----Petitioners
Versus
NASARULLAH and 9 others ----Respondents
R.F.A. No.19 of 2002, decided on 15th April, 2010.
Specific Relief Act (I of 1877) ---
----Ss. 8, 39, 42 & 54 ---Suit for possession, declaration, cancellation of mutation, partition
and permanent injunction ---Trial Court having decreed the suit filed by the plaintiffs, the
defendants had filed f irst appeal before High Court against judgment and decree passed by
the Trial Court ---Contention of the defendants, firstly was that the Trial Court had not
properly framed the issues arising out of the pleadings of the parties, secondly that while
passing the impugned judgment, the Trial Court had failed to give findings upon the issues in
accordance with law and material available on record and that the Trial Court while deciding
one issue that "whether the plaintiffs were co -sharers in the suit land and private partition had
not taken place" had given a contradictory judgment by passing the decree for partition and
had passed contradictory judgment ---Validity ---Objection regarding non -framing of proper
issues by the Trial Court, had no force, because the defendants had not filed any application
for framing of proper issues before the Trial Court during the proceedings of the same ---
Counsel for defendants had not been able to point out as to what should have been the correct
issues, which had not been frame d by the Trial Court and had prejudiced the defendants ---
Second objection of the defendants that Trial Court while deciding issues had passed
contradictory judgment for partition of the property in dispute, had substance ---Trial Court
while deciding said i ssue, came to the conclusion that private partition had already been
effected between the plaintiffs and defendants and in pursuance of said private partition both
the parties were enjoying possession of property and cultivating the same, having installed
boring and developed orchards ---Trial Court after coining to the said conclusion, decreed the
suit as per prayer clause of the plaint and directed Authorities to partition the property in
dispute and hand over the vacant possession to the extent of their p ossession ---Findings of the
Trial Court to the extent of partition being erroneous, was liable to be set aside ---Judgment
and decree passed by the Trial Court was upheld with modification that the finding of the
Trial Court with regard to partition of prop erty was set aside.
Naeem Akhtar for Petitioners.
W.N. Kohli and Rafique Langove and Ejaz Sawati for Respondents.
Date of hearing: 17th December, 2009.
JUDGMENT
GHULAM MUSTAFA MENGAL, J .---This appeal under section 96, Cr.P.C. is directed
against the judgment and decree dated 7 -2-2002 passed by learned Senior Civil Judge, Pishin
in Civil Suit No.91 of 2000, whereby suit filed by the respondents Nos.1 to 10 for
declaration, possession, partition, cancellation of mutation entries and permanent injunction
has been decreed.
Briefly stated facts of the case are that on 3 -10-2000 the respondents Nos.1 to 10 filed a suit
for declaration, possession, cancellation of mutation entry, partition and permanent injunction
against the appellants and pro fo rma respondents Nos.11 to 15, claiming following relief: --
"(a) Declaring that plaintiffs are lawful owners of property, situated in Mahal and
Mouza Bazar Nau Tappa Saddar Surkhab, Tehsil and District Pishin bearing Khewat/
Katooni Nos.64/65 total consis ting of 7 Qitas bearing Khasra Nos.51/57/62 to 65 and
74 total consisting 311 rods 6 poles in which plaintiffs are owners to the extent of 18 -
2/3 shares.
(b) Declaring that mutation of Sehet Indiraj bearing No.730 in which share of
predecessor i.e. 7 -1/3 has been illegally carried out whereas on the basis of said illegal
entry subsequent mutation entries carried out by way of Hiba and other mutation
entries carried out on the basis of same is illegal and has no value in the eye of law,
being product of fr aud and misrepresentation.
(c) By way of mandatory injunction defendants Nos.9 and 10 be directed to partition
the property and hand over its vacant possession to the extent of share as described in
the body of plaint.
(d) By way of permanent injunctio n defendants be restrained not to interfere in the
peaceful possession of plaintiffs, in the property more particularly described in the
body of plaint.
(e) Any other relief which this Honourable Court may deems fit and appropriate in the
circumstances o f the case; and
(f) Cost of the proceedings may also be awarded in favour of plaintiffs and against the
defendants in the interest of justice and equity.
The appellants filed their joint written statement and contested the suit on legal as well as
factual grounds. It was contended that the predecessor of plaintiffs namely Mursaleen and
defendants Nos.1 and 2 are real brothers while defendants Nos.3 and 4 are the sons of
defendants No.2. It was further contended that some 33 years back they had jointly p urchased
the property in dispute from one Sultan Muhammad and Adnan Khan and thereafter they
entered into a private partition about 22 years back and each one is in possession of his
separate share and according to the private partition some of the propert ies are in the name of
one party and possession thereof is in the possession of other party.
Out of the pleadings of the parties, learned trial Court framed the following issues: ---
"(1) Whether the suit of the plaintiffs is not maintainable in view of preliminary legal
objections "C" and "D" of the written statement of defendants Nos. 1 to 4?
(2) Whether the plaintiffs are co -sharers in the suit land, and private partition has not
taken place?
(3) Whether the mutation No.730 and other mutation entr ies carried out by way of
Hibba are liable to be cancelled?
(4) Whether the plaintiffs are entitled to the relief claimed for?
(5) Relief?"
In support of their claim the parties led their respective evidence. The learned Senior Civil
Judge, Pishin de creed the suit, vide judgment and decree dated 7 -2-2002, hence this appeal.
We have heard the learned counsel for appellants as well as learned counsel for respondents
Nos. 1 to 10 and respondents Nos. 11 and 12 Learned counsel for the appellants vehemen tly
contended that the learned trial Court has not properly framed the issues arising out of the
pleadings of the parties, and while passing the impugned judgment the learned trial Court has
failed to give findings upon the issues in accordance with law an d material available on
record. He further contended that the learned trial Court while deciding issue No.2 has given
a contradictory judgment by passing the decree for partition and has passed contradictory
judgment, as such the judgment and decree impugn ed herein is bad in the eye of law thus the
same is liable to be set aside.
On the other hand learned counsel Mr. Mehta W.N. Kohli, Advocate, for the respondents
Nos. 1 to 10 contended that the judgment of the learned Senior Civil Judge, Pishin is well
reasoned and all the issues have been attended to, therefore, there exists no ground to
interfere in the same.
The objection of the learned counsel regarding non -framing of proper issues by the learned
trial Court has no force because the appellants/defen dants have not filed any application for
framing for proper issues before the trial Court during the proceedings of the case. Even now
the learned counsel has not been able to point out as to what should have been the correct
issues, which have not been fr amed by the trial Court and has prejudiced the appellants.
Coming to the next contention of Mr. Naeem Akhtar, Advocate learned counsel for the
appellants that the learned trial Court while deciding issues has passed contradictory
judgment for partition o f the property in dispute. The contention of learned counsel has
substance that the learned trial Court while deciding issue No.2 came to the conclusion that
private partition has already been effected between the plaintiffs and defendants Nos. 1 to 4
and in pursuance of said private partition both the parties are enjoying possession of property
and admittedly cultivating the same, having installed boring and developed orchards. After
coming to the said conclusion the learned trial Court decreed the suit as per prayer clause of
the plaint and directed the defendants Nos.9 and 10 to partition the property in dispute and
hand over the vacant possession to the extent of their shares, thus finding of the learned
Senior Civil Judge, Pishin to the extent of partit ion being erroneous is liable to be set aside.
Resultantly, the judgment and decree dated 7 -2-2002, passed by learned Senior Civil Judge,
Pishin is upheld with the modification that the finding of trial Court with regard to partition
of property in dispu te is set aside.
With the above modification in the judgment and decree passed by Senior Civil Judge, Pishin
the appeal is partly allowed with no order as to costs.
H.B.T./26/Q Appeal partly allowed.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,
let us know.