2019 C L C 1291
[Balochistan]
Before Mrs. Syeda Tahira Safdar CJ and Muhammad Ejaz Swati, J
NOOR AHMED and 2 others ----Appellants
Versus
BASHIR AHMED and others ----Respondents
R.F.A. No.169 of 2009, C.M. Appeal No.14 of 2015 and Civil Revision No. 78 of 2018,
decided on 30th November, 2018.
(a) Civil Procedure Code (V of 1908) ----
----S. 92 ---Specific Relief Act (I of 1877), S. 42 ---Suit for declaration against trust property
without consent of Advocate General ---Maintainability ---Trust had been created i n the land
in question for public purpose of religious/charitable in nature ---Permission of Advocate
General for instituting a suit was mandatory ----No consent of Advocate General had been
obtained--- Trial Court had passed decree against law in favour of plaintiffs ---Impugned
judgments and decrees passed by the Courts below were not sustainable which were set aside--- Revision was allowed, in circumstances.
Fakir Shah and others v. Mehtab Shah Pir Bukhari Masjid Committee and others PLD
1989 SC 283 rel.
(b) Specific Relief Act (I of 1877) ---
----S. 42 ---Suit for declaration and partition--- Shamilat Deh ---Effect ---Land in question was
Shamilat Deh ---Nothing was on record with regard to names or shares of the sharers of suit
land---Civil Court had limited jur isdiction with regard to Shamilat Deh land ---No specific
share could be declared to be in possession of any land owner unless Shamilat Deh land was partitioned by metes and bounds by revenue authorities ---Shamilat Deh land whenever
divided was to be divide d in accordance with ancestral shares of the proprietors amongst
them ---Other residents of the village, occupants of land or tenant at will or even the owner of
land who acquired ownership right as Malik- Qabza would not be entitled to any share in the
comm on property of village Shamilat ---Trial Court had passed decree against law in favour
of plaintiffs ---Impugned judgments and decrees passed by the Court below were not
sustainable which were set aside--- Revision was disposed of accordingly.
1993 SCMR 381 and Khalique Ahmed v. Abdul Ghani and another PLD 1973 SC 214
rel.
Tariq Ali Tahir for Appellants (in R.F.A. No.169 of 2009).
Syed Manzoor Ahmed Shah for Respondents Nos.1 to 11 (in R.F.A. No.169 of 2009).
Zahoor Ahmed Baloch, Assistant A.G. for Official Respondent (in R.F.A. No.169 of
2009).
Tariq Ali Tahir for Appellants (in Civil Miscellaneous Appeal No.14 of 2015).
Syed Manzoor Ahmed Shah for Respondents Nos.1 to 11 (in Civil Miscellaneous
Appeal No.14 of 2015).
Zahoor Ahmed Baloch, Assistant A.G. for Official Respondent (in Civil
Miscellaneous Appeal No.14 of 2015).
Nemo for Petitioners (in Civil Revision Petition No.78 of 2018).
Tariq Ali Tahir for Respondents Nos.1, 2 and 2(i) to 2(xi) (in Civil Revision No.78 of
2018).
Zahoor Ahmed Baloch Asstt. A.G. for Official Respondents Nos.1 to 11/decree
holders (in Civil Revision Petition No.78 of 2018).
Zahoor Ahmed Baloch, Additional A.G. for Official Respondent (in Civil Revision
Petition No.78 of 2018).
Date of hearing: 29th October, 2018.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---The respondents (plaintiffs) filed a suit for
Declaration and Permanent Injunction, Partition and Possession and prayed as under:
a. Declare that plaintiffs are entitled for 1/7 shares of the total legacy left by Haji Gul
Muhammad being the legal heirs of Late Ahmed Yar son of Haji Gul Muhammad.
b. Defendants Nos.1 to 15 may kindly be directed to partition the pr operty as mentioned
in paras Nos.2 and 3 and further directed the defendants after partition hand over the possession to the plaintiffs according to law.
c. The defendants may also be permanently restrained to transfer, mutate or alienate the share of the plaintiffs.
d. That any other relief which this honourable court deem fit and proper may also be awarded in the interest of justice, equity and fair play.
e. Cost of suit may also be granted."
2. The appellants (defendants) Nos.1 to 11 contested the suit by way of filing written
statement.
3. Out of pleadings of the parties following issues were framed:
1. Whether the instant suit is not maintainable in view of legal objections C, D and F
expressed by defendants Nos.1 to 11 in written statement?
2. Whether plaintiffs are entitled for 1/7 share of the total legacy left by Haji Gul
Muhammad being legal heirs of late Ahmed Yar?
3. Whether plaintiffs are entitled for the partition of suit property?
4. Whether the plaintiffs are entitled for the relief clai med for?
5. Relief?
4. The respondents Nos.1 to 11 (plaintiffs) produced five witnesses and got recorded
their statements through the attorney (plaintiff) namely Bashir Ahmed son of Ahmed.
5. The appellants Nos.1 to 3 (defendants) and respondents Nos.13 to 20 (defendants)
produced 5 witnesses and recorded their statements through attorney namely (Niaz Muhammad) while the appellant Muhammad Khalid and respondent Muhammad Siddique recorded their respective statements.
6. The learned Civil Judge -II, Quetta (hereinafter the "trial Court") vide
judgment/decree dated 18th September, 2009 (hereinafter the "impugned judgment/decree") decreed the suit.
7. The appellants defendants challenged the impugned judgment/decree by way of filing
Regular F irst Appeal No.169 of 200 to the extent of clause "C" "F" of the impugned
judgment. On 21st April, 2014, this Court passed status quo order, however, through C.M.A. No.476 of 2014 dated 26th June, 2014, the appellant submitted that in the decree sheet date d
18th September, 2009 passed by Civil Judge -II, Quetta it was not mentioned about handing
over of land 1 Rod 26 Pole to the plaintiffs, but the executing Court on application under section 152, C.P.C. passed amended decree on 20th June, 2014. It was submi tted that the
application for amendment is annexed in paper book at page 495. The executing Court without giving any notice to the appellants allowed the application and amended the decree.
8. The amended decree has also been challenged by way of filing am ended appeal. This
Court vide order dated 22" July 2014 and 14th June 2017 respectively passed following orders:
"22.07.2014.
C.M.A. No.532/2014 (urgent hearing): Granted.
C.M.A. No.533/2014: Through this application learned counsel seeks suspension of
the decree, which was brought on record through C.M.A. No. 476 of 2014, wherein the following words were added:
"It is further directed to defendants Nos.1 to 11 to hand over the remaining land of 1 Rod, 26 Poles to plaintiffs."
It is state d that the appellant was not aware of the amended decree and he had filed
appeal against the un- amended decree. It is further stated that against the main decree
status -quo order was passed on 21st April 2010 and prays that the order of status -quo
may also be passed in respect of the amended decree, the relevant portion whereof has
been mentioned above. Order accordingly."
9. The respondents/decree holders during execution proceedings filed an application for
satisfaction of the decree in respect of Khasra Nos.263 and 315 situated in Mouza Chashma
Habib and further prayed to appoint a Local Commissioner.
10. The above application was contested by the appellants by way of filing rejoinder to
the application on the ground that Halqa Patwari has already given a detailed report on 3rd
December, 2014, (1st Report) therefore, there is no need to appoint Local Commissioner. The executing Court i.e. Civil Judge -II, Quetta vide order dated 27th March, 2015 allowed
the application and appointed Mr. Naimatullah Achakzai , Advocate as Local Commissioner
(the Local Commissioner) with direction to visit the land of Khasra Nos.315 and 263 in presence of the parties and their counsels along with area Patwari and to submit a detailed report. The Local Commissioner submitted his report on 1st July 2015. The appellants
objected the report with regard to Khasra No.263 to the extent of 1/7 share of the decree holder. The learned executing Court vide order dated 7th September 2015 (impugned order in
that Miscellaneous Appeal No.14 of 2015) passed the following order:
"I heard arguments of learned counsel of applicants/decree holders over the objections, while the counsel of respondent/judgment debtors has already heard about the filing of present execution application, however, judgm ent debtors told before the
court that their counsel has stated that he will rely on his previous arguments and will not argue over the report of Local Commissioner and points raised by decree holders in their objections regarding physical possession and c halking of Tatima. I also
perused record of application minutely, which revealed that instant execution application has been filed in May, 2014 but same has been prolonged by raising technicalities and unwarranted objections, which is not justifiable, as r eport of Local
Commissioner is highly satisfactorily and through the same the matter has been brought to an end, in view of which request of applicants/decree holders for handing over the physical possession to them and chalking Tatima over their name is a llowed.
Local Commissioner, Mr. Naimatullah Achakzai advocate is directed to hand over the physical possession to the applicants/decree holders and also to chalk Tatima through Halqa Patwari and to submit his report on next date of hearing i.e. 22- 9-2015.
A letter also be issued to area Patwari Azizullah."
11. The appellants challenged the above impugned order by way of filing Civil
Miscellaneous Appeal No. 14 of 2015. The petitioners Akhundzada Jaffar Kasi and
Akhundzada Akram Kasi in Civil Revision Petit ion No. 78 of 2018 had filed an application
under section 12(2) of Civil Procedure Code (C.P.C.) for setting aside of the impugned judgment/decree dated 18th September 2009 on the ground that the Khasra No. 263 belongs to their predecessor and also in thei r joint possession and the shamilat land is combined/joint
possession of Zamindaran, therefore, transfer of shamilat land in favour of the decree -holders
or legal heirs of late Gul Muhammad was violation of the law. The executing Court vide order dated 19t h October 2017 suspended executing proceedings till 23rd October 2017,
however, vide order dated 15th March 2018 (impugned order in Civil Revision Petition No. 78 of 2018) dismissed the application under section 12(2), C.P.C. filed by the petitioners.
12. The petitioners had challenged the above impugned order by way of filing Civil
Revision No.78 of 2018. The question involves in R.F.A. No.169 of 2018, Civil Miscellaneous Appeal No.78 of 2015 and Civil Revision No. 14 of 2018, arising out of the impugned j udgment/decree dated 18th September 2009 are being disposed of through this
common judgment.
13. The learned counsel for the appellant (RFA No.169 of 2009) Civil Miscellaneous
Appeal No.14/2015 contended that suit filed by the respondents (plaintiffs) was barred by
time; that properties left by the predecessor -in-interest of the parties was partitioned in the
year 1964, and all the legal heirs are enjoying their respective shares; that plaintiffs had failed to join the necessary and proper party to whom bot h of the parties sold out same of
their shares; that the executing court also directed executing of the decree in respect of Khasra No.263, which was neither owned by the predecessor -in-interest of the parties nor
any documentary evidence came on record; t hat in presence of report regarding Khasras
Nos.315 and 263 of the revenue authority, there was no need of appointment of Local Commissioner who had no expert knowledge about the nature of the property; that the executing Court amended the decree without notice to the appellants and thus, passed the order beyond the decree dated 18th September, 2009; that the impugned direction in the decree dated 6th October, 2009 to handover the remaining land i.e. 1 Rod 26 Poles to the plaintiffs is void and contrary to law; that the impugned judgment/decree to the extent of
Clause 'C' i.e. 'F' and amended decree is liable to be set aside.
The learned counsel for the petitioners of Civil Revision Petition No.78 of 2018, did
not appear despite providing several opportunit ies, therefore, the grounds raised in the
petition have been considered, wherein the impugned judgment and decree to the extent of Khasra No.263 had been challenged on the ground that shamilat land was neither owned by the predecessor of the parties namely Late Gul Muhammad nor the Patedaran were
impleaded as party, therefore, decree to that extent is liable to be set aside.
The learned counsel for the respondents (plaintiffs) contended that the plaintiffs being
co-sharers in the property in dispute were deemed to be in possession till the regular
partition, therefore, question of limitation was not in their way; that the plaintiffs had claimed their share to the extent of 1/7 shares from the property left by the predecessor -in-
interest namely Gul Muhammad and through documentary evidence i.e. revenue record have
established their right; that share of the plaintiffs had not been disputed by the
appellants/defendants, therefore, the executing court rightly awarded the decree and directed
the appellants to ha ndover 1 Rode 26 Poles to the decree holder; That appellants had failed to
challenge the amended decree within stipulated period, therefore, the amended appeal to that extent is barred by time; that Local Commissioner report clearly demonstrate about the Khasra No.263, and in respect of that report objections were also rejected by the executing
court, and had not been challenged further, which had taken finality; that appellants had
challenged the decree to the extent of clause (C) (F), and amended decree, which has been
executed by the executing court and in this respect, mutations vide Intiqal No.3661 dated 18th April 2018, have been recorded accordingly.
14. We have heard the learned counsel for the parties and perused the evidence on record.
The impugned judgment/decree annexed along with appeal is as under:
A. It is declared that, the plaintiffs and defendant No.15 are entitled for 1/7 share of the total legacy left by late Haji Gul Muhammad being legal heirs of Ahmed Yar son of Haji Gul Muhammad.
B. It is directed to the defendants to partition the property of Khasra Nos.315 and 263
and also to hand over the possession of the same to each share holder, after partition. The defendants are restrained to transfer the mutation or land share of the plaintiffs .
C. It is directed to defendant No.2 to pay amount of Khasra No. 7 to the extent of the share of plaintiffs, as decided i.e. remaining 21 lacs of rupees, or to hand over the land property of plaintiffs in Khasra No.7."
15. After passing of above decree, t he executing Court on the application under sections
152 and 153, C.P.C. read with section 151, C.P.C. filed by the decree -holders for amendment
of the decree, without issuing notice to the judgment -debtors and without passing any
separate detailed order, on the same application written "allowed dated 6.10.2009" and
thereby amended decree was passed on 6th October, 2009 and included as under:
"It is further directed to defendants Nos.1 to 11 to handover the remaining land of 1 Rod 26 Poles to plaintiffs" ( amended clause)."
16. This Court vide order dated 6th April 2017, allowed amendment in RFA No.169/2009
subject to all just legal exceptions. The decree holder (respondents Nos.1 to 11) filed execution application on 16th March 2010 for realization of the decree of the following properties:
1. Khara No. 7, Mouza Habib Hudda.
2. Khasra No. 315 situated at Chashma Habib, District Quetta.
3. Khasra Nos. 308 and 312, Chashma Habib.
4. Khasra No. 263 Chashma Habib.
17. The appellants in RFA No.169/2009 (as amended) have challenged the impugned
decree to the extent of clause "C" "F" and amended decree and in Civil Appeal No.14 of
2015, the appellant Noor Muhammad had challenged the order of the executing Court dated 7th September, 2015, whereby the Local Commissioner has been directed to handover possession of Khasra No.263 to the decree -holders and chalk Tatima over their names. The
relevant is reproduced herein below:
"I also perused record of application minutely, which revealed that instant execution application has been filed in May, 2014 but sam e has been prolonged by raising
technicalities and unwarranted objections, which is not justifiable, as report of Local Commissioner is highly satisfactorily and through the same the matter has been brought to an end, in view of which request of applicants /decree holders for handing
over the physical possession to them and chalking Tatima over their name is allowed. Local Commissioner, Mr. Naimatullah Achakzai Advocate is directed to hand over the physical possession to the applicants/decree holders and als o to chalk Tatima
through Halqa Patwari and to submit his report on next date of hearing i.e. 22- 9-
2015."
18. During course of the arguments, the learned counsel for the appellants contended that
the appellants and plaintiffs have no objection, if the above impugned order of the executing
Court is realized, but this contention of the appellants and respondents (plaintiffs) is not
tenable as the above Khasra No.263 is Shamilat land and subject matter of the Civil Revision No.78 of 2018 and it is to be considered as to whether above Shamilat land was owned by Late Gul Muhammad and without impleading Patedaran of the Shamilat land decree could possibly be passed.
19. While considering the evidence on record, it appears that plaintiffs had not produced
Intiqal -e-Wirasat instead substantiated their claim on the basis of Revenue Record Ex.P/3- A
to Ex.P/5 -B, while on the other hand, the appellants (defendants) produced revenue record
mutation Ex -D/5-A to Ex -D/5-G. It appears from Mutation No.667 dated 8th October, 1 984
Ex.P/4- A and Mutation No.747 dated 8th October, 1984 that properties being Khasra
Nos.308 to 312 measuring 65 Rods 30 poles situated in Mohal and Mouza Habib Tappa Saddar Tehsil and District Quetta, had been transferred on the name of the appellants (defendants Nos.1 to 11), 34 poles have been transferred in favour of Ahmed Yar son of Gul
Muhammad father of the plaintiffs through exchange ( ) and it is quite obvious from
Ex.P4 -A. Total property of Khasra Nos.308 to 312 is 65 Rods 30 Poles out of which f ather of
the plaintiffs exchanged his share i.e. 9 Rods 16 Poles with the appellants (defendants), but in lieu thereof, the appellants vide Ex.P/4- B only transferred 7 Rods 30 Poles in favour of the
plaintiffs father name in Khasra Nos.36, 37 and thus, acc ording to above documentary
evidence remaining property i.e. 1 Rod 26 Poles of the plaintiffs was due against the appellants. In Khasra Nos.36 and 37 no such property left; though these facts were observed in the judgment of the trial Court, but while pass ing decree the trial Court omitted to
incorporate in the decree; the trial court soon after passing decree on the application under sections 152, 153 read with section 151, C.P.C. filed by the plaintiff the decree was modified on 5th October, 2009 accordin gly. It appears that no prejudice has been caused to the
appellants, nor the learned counsel for the appellants was able to justify or rebut the contentions of the plaintiffs in this respect. Even otherwise the amended decree was passed on 5th October, 2009 while appellants filed amended appeal on 14th April 2017. This court
vide order dated 6th April 2017 allowed the appellants to file amended appeal subject to all
just legal exceptions. The appellants filed appeal against the un -amended decree on 15th
December, 2009 and thereafter on 22.3.2012, 2.5.2012, 23.10.2012, 13.11.2012, 28.11.2012, 28.8.2013, 9.9.2013, 7.10.2013, 10.12.2013, however on 22.7.2014 through C.M.A. No.533/2014 sought suspension of amended decree which was brought on record through
C.M.A . No.476 of 2014, thereafter on 6.4.2017 the learned counsel for the appellants argued
C.M.A. No.476 of 2014 and he was allowed to file amended appeal against the amended
decree subject to all just legal objections. The learned counsel for the appellants contended that appellants were not aware about the amended decree. The order sheet of the executing court filed by the respondents (plaintiffs) dated 29.3.2010, 5.4.2010, 12.4.2010, 14.4.2010, 16.4.2010, 17.4.2010, 21, 4.11.2010, 18.10.2010, 6.8.2010, 24.4.2010, ?4.2010, 4.3.2011, 31.12.2010, 5.11.2010 the appellants and their counsel after receiving documents had also filed objections regarding execution of the decree. In the above circumstances, no justified reason has been advanced by the appellant to condone the delay in respect of filing amended appeal with delay of five years against the amended decree.
20. The above discussion of evidence on record reveals that the findings of the trial Court
with regard to Issues Nos.1 to 5 except Khasra Numbers 315 a nd 263 arising out of R.F.A.
No .169 of 2009 warrant no interference.
21. Whereas, the Civil Miscellaneous Appeal No.14 of 2015 arising out of order dated 7th
September, 2015 whereby on the basis of Local Commissioner report Khasra No.315 and Shamilat land bearing Khasra No.263 area included in the execution process and Civil
Revision Petition No.78 of 2018 arising out of the order dated 15th March, 2018 whereby the executing Court while dismissing the application under section 12(2), C.P.C. filed by the
petitioner for setting aside of the decree in respect of Khasra No.263 i.e. Shamilat land was
dismissed.
22. The respondents (plaintiffs) in their suit claimed that they are also co -sharer in Khasra
Nos.315 and 263 through their predecessor -in-interest namely Gul Muhammad. The Fard -e-
Intekhab/Jamahandi of Mohal Chashma Habib with regard to Khasra No.315 Ex.P/3- C
indicates that Khasra No.315 measuring 3 Rods 26 Poles is recorded as Qabristan in
possession of Ahele Islam following caution has been endorsed therein:
Though in the record of right, the name of plaintiffs 'father namely Ahmed Yar has
been mentioned, but the recital of Ex.P/3- C expressly indicates that trust has been created for
public purpose of a religious/charitable in nature and in view of section 92 of Civil Procedure Code (C.P.C.) permission of the Advocate General for instituting a suit was ma ndatory. It
appears that in respect of Khasra No.315 Ex.P/3- C, the provisions of section 92 were
attracted, but consent of the learned Advocate General had not been obtained, therefore, in such eventuality, the suit to the extent of Khasra No.315 was not m aintainable. Reference is
to be made to the case titled Fakir Shah and others v. Mehtab Shah Pir Bukhari Masjid Committee and others PLD 1989 SC 283, wherein it was observed as under:
"In view of what has been stated above we feel that having regard to th e substance of
the case pleaded in the plaint, the suit was of the nature contemplated in section 92,
C.P.C. and therefore, it was not competent without the requisite prior sanction of the Advocate -General. The plaint in the suit itself disclosed that the suit was barred under
the said provisions of law and consequently the plaint was liable to be rejected under Order VII, Rule 11(d) C.P.C".
23. Whereas Khasra No. 263 is concerned, according to the Revenue record Ex.P/5- A,
Jamabandi of Mohal Chashma Habib, Mouza Habib Tappa Saddar Kasi District, Quetta,
Khasra No. 263 is" Shamilat Mohal Hasb- e-Hisis Mahazi Khet. "
Admittedly, Khasra No. 263 Ex.P/5- A is Shamilat Hasb -e-Hisis Mahazi Khet, neither name
or shares of the sharers is mentioned nor any detail came on record. In such circumstances,
the Civil Court has limited jurisdiction. It is settled law that" unless the Shamilat Deh land was partitioned by metes and bounds by revenue authorities, no specific share can be declared to be in possession of any land o wner. "In the judgment reported in 1993 SCMR
381, the Hon'ble Supreme Court of Pakistan, observed that" whenever Shamilat land would be divided it would be divided in accordance with ancestral shares of the proprietors among them only. All other residents of the village, occupant of land or tenant at will or even the
owner of land who acquired ownership right as Malik -Qabza
would not be entitled to
any share in the common property of village Shamilat."
24. In the instant case, the plaintiffs 'had not produced Intiqal -e-Wirasat or any other
documentary evidence indicating that late Gul Muhammad (predecessor -in-interest of the
plaintiffs) had any ancestral sharers being proprietors or he acquired ownership right as
Malik -Qabza of Khasra No.263. The only authentic documents in this respect, had
been called upon by the executing court was Report of Naib Tehsildar, Quetta dated 3rd
December, 2014 which reads as under:
25. The executing Court in presence of above report without recording of plausible
reason appointed a Local Commissioner to visit the land of Khasra Nos.315 and 263 along
with the area Patwari and submit report. The Learned Local Commissioner without reference of any such area Patwari submitted his report as under:
"That from the above mentioned measurement it is concluded that the decree holders as per the decree/judgment dated 18 -09-2009 passed by this Hon'ble Court are entitled
for the 1/7th share of total property of Khasra No. 263, which are calculated as 20091 sq. Ft and the judgment debt ors having either sold or transferred the possession of the
area of 132431 Sq. Ft to different people out of the total area of 154638 sq. Ft of Khasra No. 263, as such the share of the decree holders of 22091 sq. Ft are adjusted in the vacant plots as ment ioned in Para No. 13 of the instant report, which were in
possession of the judgment debtors, whereas as mentioned in Para No.4 of the instant report, the decree holders relinquished their 1/7th share in the Khasra No. 315 in the
public interest, as the sa me Khasra No. 315 completely consists of graveyard,
therefore, it is recommended that the property of Khasra No.315 being valuable
property may kindly be given in the supervision of government authority in order to save the same from the encroachments of t he land grabbers and neighbors and the
same be used for the purpose of graveyard.
The Report is submitted for kind perusal".
26. From the above report, it reveals that the learned Local Commissioner had concluded
total land of Khasra No. 263 as 154638 and also made declaration thereof, but failed to describe the name of other share- holders including (petitioners) no reference had be en given
from which authentic revenue record, he concluded his report with respect to Khasra No. 263
the contents of the above report is obvious that without reference to any authentic admissible
revenue record report had been submitted by the learned Loca l Commissioner even otherwise
the Local Commissioner was appointed to inspect the site of Khasra No.263 and not to
determine the shares of the parties. Since no documentary evidence came on record to establish that late Gul Muhammad had share or was propri etor of Khasra No.263 Shamilat
land and Ex.P/5 -A (revenue record) of Khasra No.263 regarding Shamilat Mohal Habib
and impugned decree is silent with regard to name and shares of the plaintiffs or
their predecessor -in-interest, but the executing Court whi le traveling behind the decree while
relying report of the Local Commissioner has passed impugned order dated 7th September, 2015 with regard to Khasra No.263. The report of Local Commissioner is based on presumption which cannot be equated with evidence, therefore, impugned order dated 7th September, 2015 cannot be sustained, thus set aside accordingly. Besides above, the Patedaran/shareholders of Shamilat land i.e. Mahzi Khet with regard to Khasra No.263 Ex.P/5- A had also not been impleaded as a party in the suit, and the suit in this regard was
not maintainable. Reference in this respect is to be made to the case titled Khalique Ahmed v. Abdul Ghani and another PLD 1973 SC 214, wherein the Hon'ble Supreme Court of Pakistan observed as under:
"A suit for possession can be brought by all the co -owners jointly. It is open,
however, to one of them also to sue for possession, but he must join the other co-owners as defendants and the decree will be for joint possession and not in favour of the plaintiff only".
27. In the instant case, the trial Court without considering the aforesaid aspect of the case
also passed decree in favour of the plaintiffs in respect of Khasras Nos. 263 and 315, to that extent, the impugned judgment/decree cannot be sustained and rever sed accordingly.
In view of the above, while setting aside the impugned judgment/decree dated 18th
September 2009 passed by the learned Civil Judge -II, Quetta to the extent of Khasras Nos.
315 and 263, the remaining decree is intact. Consequently, Regular First Appeal No. 169 of
2009, Civil Miscellaneous Appeal No. 14 of 2015 and Civil Revision Petition No. 78 of 2018
are disposed of accordingly.
Decree sheet be drawn accordingly.
ZC/4/Bal Order accordingly.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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