2015 C L C 1042
[Balochistan]
Before Muhammad Kamran Khan Mullakhail, J
MUHAMMAD SABIR and 3 others ----Petitioners
versus
Mst. JANAT KHATOON ----Respondent
Civil Revision No.373 of 2007, decided on 30th April, 2014.
(a) Civil Procedure Code (V of 1908) ---
----O. VII, Rr.2 & 3 ---High Court (Lahore) Rules and Orders Volume I Chap. 1 -C, Part C ---
Pleadings ---Requirements ---Immovable property ---Suit filed by the plaintiff carried certain
inherent defects ---Description of suit prop erty was neither mentioned nor appended with the
plaint ---Civil suit on uncertain boundaries and without revenue record with regard to immovable
property was not maintainable ---No decree on the basis of uncertain and unidentified boundaries
was executable ---Object of partition or determination of inherited rights could not be determined
without description of property ---Decree could not be awarded on the basis of ambiguous
pleadings ---Frivolous, ambiguous and baseless suit/lis should be buried on its incept ion---
Impugned judgments passed by both the courts below, were set aside and suit was dismissed ---
Revision was accepted, in circumstances.
(b) Civil Procedure Code (V of 1908) ---
----S. 115 ---Revisional jurisdiction of High Court ---Scope ---Concurrent findings of facts
recorded by courts below could not be disturbed by the High Court in exercise of revisional
jurisdiction except when the same were based on conjectural presumptions, erroneous
assumptions and wrong proposition of law ---High Court could re verse such findings while
exercising revisional jurisdiction when the same were based on insufficient evidence, misreading
of evidence, non -consideration of material evidence, erroneous assumption of facts, patent errors
of law or arbitrary exercise of pow ers and where unreasonable view on evidence was taken due
to non -reading and misreading of evidence.
Tahir Ali Baloch for Petitioner.
Mujeeb Ahmed Hashmi for Respondent.
Naseer, Addl. A. -G. for State.
Date of hearing: 21st March, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULLAKHAIL, J. --- This civil revision petition is
directed against the judgment and decree dated 28 -12-2006 and the judgment and decree dated
8th June, 2007 respectively passed by the learned Qazi Kharan ("trial court") and the learned
Majlis -e-Shoora, Kharan ("appellate court").
2. Brief facts necessary for disposal of instant petition are that the respondent/plaintiff filed
a civil suit on basis of inheritance of her father, for "declaration, permanent injunction and
partition of properties" on the averment that her father viz Muhammad Ghous died about five to
six years ago and she is sole surviving legal heir of her father. The suit was filed on the strength
that her deceased brother viz Muhammad Essa and sister Mst. Par i Jan were died during the
lifetime of their father. However, her deceased brother left behind two sons and one daughter
(petitioners Nos.1, 2 and 3). While her deceased sister Mst. Pari Jan was issueless. Therefore, the
descendants of late Muhammad Essa a re not entitled in inherited property under the law of
inheritance. The details of properties were mentioned in para 2 of the plaint and 12 pieces of vast
land were identified by providing the list of respective lands without any description, physical
boun daries, measurements, record of rights and records referring to revenue entries.
The petitioners/defendants on receipt of notices filed their written statement. Though they
had admitted in their written statement that their deceased predecessor -in-interest was having a
large number of lands within the precincts of Tehsil and District Kharan but they had
categorically denied any such right of the plaintiff/respondent on a plea that their predecessor -in-
interest had executed a written withdrawal in respect of his lands at the time of marriage of his
deceased son Muhammad Essa and gifted his whole immoveable agricultural lands to his
daughter in law (petitioner No.4) who happened to be the wife of his deceased son and the gift
was offered, accepted and hande d over in lieu of dower (meher) of her marriage. They relied
upon a 'Iqrarnama' (Kabeen Nama) dated 5 -12-1970.
3. On divergent pleadings of the parties the learned trial court framed the following issues:
4. In support of her claim the plaintiff/respon dent produced three witnesses and in rebuttal
the petitioners/defendants produced two witnesses and statements of attorneys from both sides
were recorded. On conclusion of trial the learned trial court passed the impugned judgment and
decree dated 28 -12-2006. The petitioners/defendants being aggrieved of the judgment and
decrees assailed the same before the learned appellate court, whereby the judgment passed by the
learned trial court was upheld. Both the impugned judgments have been assailed in this revis ion
petition.
5. Learned counsel for the petitioner contended that both the courts below have erred in law
and impugned judgments were passed in utter violation of law. He inter alia contended that the
subject matter of the suit was related to the legacy of predecessor -in-interest of the parties,
wherein the right of inheritance was claimed being the sole surviving legal heir of her
predecessor -in-interest. He added that by means of civil suit the right of petitioners was denied
on the strength that their deceased father Muhammad Essa was died during the life time of his
father Muhammad Ghous, therefore, under the law of inheritance the grandsons and grand -
daughter were not entitled to the legacy of their deceased the predecessor -in-interest. He further
added that not only the witnesses of the respondent/plaintiff had shown their ignorance about the
description and exact location of the property but their attorney had also failed to give complete
details of the properties. He stated that some of the propert ies mentioned in the plaint are not
situated within the jurisdiction of the learned trial court, therefore the judgment and decree
awarded by the trial court and endorsed by the learned appellate court are not sustainable.
6. Mr. Mujeeb Ahmed Hashmi, Adv ocate for respondent/plaintiff contended that neither the
legal heir -ship of the plaintiff was denied nor the legacy such as the inherited properties of their
predecessor -in-interest was disputed. He further stated that the petitioners/defendants have reli ed
upon 'Iqrarnama' but in order to prove the said document neither any marginal witnesses nor
subscribe and attesting witnesses were produced. He supported the impugned judgments on the
strength that the learned trial court has passed the judgment and dec ree in view of admission of
the petitioners/defendants and their witnesses, wherein the legal heir -ship of respondent/plaintiff
and legacy of their predecessor -in-interest was admitted in clear terms.
Vide this court order dated 17 -12-2012 it was observ ed that the suit properties are
unsettled lands and do not exist in the name of either of the parties, therefore, notices were issued
to the office of the learned Advocate -General and the following order was passed:
"Learned counsel for the petitioners argued the matter to certain extent during course it
appeared that the suit property which was claimed to be of Muhammad Ghaus, and both the
parties claiming their rights from him (Muhammad Ghaus), but the evidence present in record
does not contain any do cuments or material from which it can be ascertained that the suit
property ever existed in the name of Muhammad Ghaus. The learned counsel for the parties state
that the suit property is unsettled, and not exist in name of either of the parties. In the st ated
circumstances, it deemed appropriate that notice be issued to Advocate General. Notice be
accompanied copy of the petition along with annexed documents. The learned Additional A. -G.
is directed to take a specific stance in respect of the suit property on the date fixed for hearing.
To be fixed after winter vacation."
7. In response to notice of this court the learned Law Officer from the office of Advocate -
General entered appearance and time was sought in order to submit a comprehensive report in
respect of status of the suit land/properties in dispute. Mr. Naseer Ahmed B angulzai, learned
Additional Advocate -General and thereafter other law officers from the office of the Advocate -
General appeared on various dates and time and again sought reprieve for submission of report
and finally submitted the copies of letter showing that the report was solicited through Deputy
Commissioner Kalat/Kharan, which is still awaited. However, on 29 -11-2013 Mr. Abdul Latif
Kakar, Assistant Advocate -General appeared and stated that the report is yet to be received but
the properties in questi on are unsettled land recorded in the name of Government of Balochistan
and this fact was conveyed to him on telephone by the revenue authorities. Thereafter none
appeared on behalf of the Government of Balochistan from the office of the Advocate -General.
8. This revision petition pertains to year 2007, which was filed on 1 -9-2007. Initially the
main suit before the trial court was filed on 15 -3-2002 and written statement was filed on 22 -4-
2002 but the perusal of the record reflects that although issues w ere framed on 27 -4-2002 but
PW-1 was examined on 21 -1-2005. The record is totally silent about the delay of three years in
between framing of issues and recording of evidence. Yet another irregularity -cum-illegality has
been noted, when the learned trial c ourt, as well as, the appellate court were seized of the lis for
quite a long time but inherent defects in pleadings were overlooked and precious time of the
courts of law was wasted and whole exercise was turned into futility. The defects noted in the
plaint were of such a nature in presence whereof no civil suit in respect of immoveable property
could proceed ahead.
The Order VII of Code of Civil Procedure (CPC) stipulates the forms of suit whereas, its
Rule 2, speaks about nature of the suit, and Rule 3 is relevant which reads as under:
3. Where the subject -matter of the suit is immovable property. ---Where the subject -matter
of the suit is immovable property, the plaint shall contain a description of the property sufficient
to identify it, and, in ca se such property can be identified by boundaries or numbers in a record
of settlement of survey, the plaint shall specify such boundaries or numbers."
In Chapter 1 -C of the High Court Rules and Orders (Volume I), the following
instructions are laid down for the subordinate Courts, relevant to the case: ---
"Part C --- EXAMINATION OF THE PLAINT
(i) On the presentation or receipt of a plaint, the Court should examine it with special
reference to the following points, viz. ---
(i) …………………………………………………………… …………………
(ii) Whether, there is, prima facie, any non -joinder or misjoinder of parties, or misjoinder of
causes of action;
(iii) Suits for inheritance, partition or declaration or right in order to effect a partition,
contribution, redemption, foreclosu re, administration of property, dissolution and winding up of
a partnership, and the like, cannot be properly disposed of unless all persons interested in the
matter are before the Court. Therefore, in cases of this description, if it appears that any
necessary parties have not been joined, the plaintiff should be ordered to join them.
(iii) If the plaint relates to agricultural land and the plaintiff is illiterate, it should be
scrutinized with special care, according to the following directions: ---
(i) ………………………………………………………………………………
(ii) Every such plaint shall be accompanied by a statement, in the prescribed form setting
forth the particulars relating thereto recorded in the Settlement record and in the last Jamabandi.
This statement shall be verifi ed by the signature of the Patwari of the Circle in which the land
concerned is situate. Where by reason of partition, river action or other cause, the entries in the
Settlement record and in the last Jamabandi do not accord, a brief explanation of the rea son
should be given in the column of remarks. Where the suit is for a specific plot with definite
boundaries, it shall also be accompanied by a map, drawn to scale, showing clearly the specific
plot claimed, or in relation to which the decree is to be made , and so such of the fields adjoining
it, also drawn to scale, as may be sufficient to facilitate identification. The specific plot and
adjoining fields shall be numbered in accordance with the statement and the map shall be
certified as correct by the Pat wari or other persons who prepared it. Where, however, the suit is
for the whole of one or more Khasra numbers as shown in the Settlement map, or a share in such
numbers, and not for a specific portion thereof no map will be required unless it is necessary for
other reasons to show the boundaries of such Khasra numbers".
9. The concurrent findings of the facts arrived at by the learned trial court as well as by the
appellate court cannot be disturbed under the revisional jurisdiction of this court but the principle
as enunciated by the Hon'ble Supreme Court of Pakistan that w here concurrent findings are
based on conjectural presumptions, erroneous assumptions and wrong proposition of law, such
findings can be reversed justifiably by the High Courts, while exercising revisional jurisdiction
as conferred under section 115, C.P.C ., an interference shall be made in the findings, when the
same are passed on insufficient evidence, misreading of evidence, non -consideration of material
evidence, erroneous assumption of facts, patent errors of law or arbitrary exercise of powers and
where unreasonable view on evidence was taken due to non -reading and misreading of evidence.
The suit filed by the defendant/respondent carries certain inherent defects and description
of property pertaining to Revenue Record was neither mentioned nor appe nded with plaint. The
civil suit on uncertain boundaries and without revenue record in respect of immoveable property
was not maintainable because no decree on basis of uncertain and unidentified boundaries is
executable. The object of partition or determi nation of inherited rights cannot be determined
without description of property, the revenue entries pertaining to the ownership/tenancy of
anyone, who claims any right under such entries, in a case when total measurement of area was
not mentioned neither decree can be granted and if so, same will not be virtually executable,
therefore, decree cannot be awarded on the basis of such an ambiguous pleading and such like
frivo`lous, ambiguous and baseless suit/lis shall be buried on its inception.
Therefore, both the judgments passed by 28 -12-2006 passed by the trial court and
judgment and decree dated 8th June, 2007 passed by the appellate court are hereby set aside.
Resultantly, the suit filed by the respondent/plaintiff stands rejected and the petition is accepted.
AG/30/Bal. Revision 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,
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