2021 C L C 37
[Balochistan
]
Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ
KAMALUDDIN and 13 others ----Appellants
Versus
ABDULLAH and another ----Respondents
Regular First Appeal No.53 of 2011, decided on 9th August, 2019.
(a) Specific Relief Act (I of 1877)---
----Ss.42, 39 & 54--- Balochistan Land Revenue Act (XVII of 1967), S.172(2)(xviii) ---Suit
for declaration, cancellation of mutation, possession and permanent injunction--- Jurisdiction
of Civil Court--- Scope ---Contention of plaintif f was that he was owner of suit property
which had not been partitioned--- Suit was decreed by the Trial Court ---Validity ---Question
of title was involved in the present case and Civil Court was the only forum to resolve the
controversy after recording evidence---Civil Court could not exercise jurisdiction over a claim for partition of an estate or holding or any question connected with or arising out of the proceedings of partition, not being a question as to title in any of such property---When
question of title was raised in a suit then provisions of S.172(2) (xviii) of Balochistan Land
Revenue Act, 1967, would not come in the way of Civil Court to decide the issue ---Present
suit had been filed for partition on the ground of inheritance ---Suit property had been left by
the forefathers of the parties ---Private partition had created title and interest of plaintiff in
the suit property--- Suit of plaintiff did fall within the domain of Civil Court, in
circumstances ---Plaintiff was owner of suit land---Trial Cou rt had rightly passed the
impugned judgment and decree in favour of plaintiff ---Appeal was dismissed, in
circumstances.
(b) Balochistan Land Revenue Act (XVII OF 1967) ---
----Ss.42, 39 & 54--- 'Question of title'--- Meaning ---"Question of title" of property when and
how arises.
Question of title is the claim of a person as to his ownership in some property and it
will arise when someone denies his right or interest in his property. It may include when due rights of a person are jeopardized by any mode of partition or order of a Revenue Officer.
Syed Mumtaz Hussain Baqiri for Appellants.
Date of hearing: 30th July, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ----This appeal under section 96, C.P.C. has been filed
by the appellants against the judgment and decree dated 25.06.2011 ("impugned judgment")
passed by learned Civil Judge -VII, Quetta ("trial court") whereby the suit filed by the
respondent was decreed.
2. Briefly stated facts of the case are that the respondent No.1 filed a suit for declaration,
cancellation of mutation entries, possession and permanent injunction against the appellants
and respondent No.2 before the trial court with the averment that the r espondent is owner of
certain properties situated at Mohal Mian Khan, Tappa Kachi Baig, Tehsil City District Quetta and the same have been entered in the name of the respondent/plaintiff through inheritance, but the same have not been partitioned; that at the time of inheritance the
respondent/plaintiff was minor and his other relatives and uncles were looking after the property, thereafter the appellants/defendants sold out some of the properties of respondent/plaintiff through stamp papers but also failed to hand over the due share of
respondent/plaintiff, however the major share of property is still in the hands of appellants/defendants. It was further contended in the plaint that the appellants/defendants have no concern with the properties of the respon dent/plaintiff but they are enjoying the
benefits of the same as the predecessor -in-interest of respondent/plaintiff and the
appellants/defendants died in the early childhood of respondent/plaintiff and the appellants/defendants took the advantage of orpha nage and illiteracy; that when it came to
the knowledge of respondent/plaintiff, he continuously demanded for partition of the properties but he was continuously ignored by appellants. It was further contended that appellants/defendants Nos. 1 to 14 wrongl y and fraudulently sold out some portion of
property to other people, which is entirely against the law and natural justice, therefore the respondent/plaintiff on several occasions approached the appellants/defendants and their predecessor -in-interest but they lingered on the matter from one pretext or the other.
The suit was contested by appellants/defendants by means of filing written
statements, denying the claim of respondent/plaintiff on legal as well as factual grounds. Out of pleadings of the partie s the trial court framed the following issues:
"1. Whether the suit of plaintiff is not maintainable in view of Legal Objections raised by the defendant in his written statement from "A" to "H"?
2. Whether the plaintiff is owner/co -shares in the properties mentioned in the Para. No.1
of the plaint at Serial Nos.1 to 4?
3. Whether the plaintiff is entitled for the relief claimed for ?
4. Relief ?"
After framing the issues the respondent/plaintiff produced four witnesses and lastly
recorded his statement on oath before the trial court. The appellants/defendants produced three witnesses and lastly got recorded their statements through their attorney namely Kamal -
ud-Din. After hearing arguments of the parties, the learned trial court decreed the suit of the
appellants, hence this appeal. None appeared on behalf of the respondent as such he was
proceeded against ex -parte.
3. Syed Mumtaz Hussain Baqiri, Advocate for appellants contended that the suit filed by
the respondent/plaintiff is hit by Section 172(2) (xvii i) of the Land Revenue Act, 1967 he
further contended that private partition, if any, does not determine legal rights of the co-
sharers in an undivided landed property unless same is affirmed by an order of a Revenue
Officer and the trial court did not co nsider this aspect of the matter. He further argued that
the findings of the trial court with regard to issues framed, are based on misinterpretation and misconstruction of the evidence and the suit property was not in possession of the respondent/plaintif f and the property of respondent/plaintiff has already been sold out by one
Kamaluddin as he has no share in the property in dispute.
4. We have heard the learned counsel for the appellants and have perused the available
record. The question in the instant case is whether the respondent's suit is barred by Section
172(2) (xviii) of the Land Revenue Act, 1967 or the civil court has jurisdiction to adjudicate upon it ? Answer to the above question is that as a question of title is involved in the case, theref ore the civil court is the only forum, which can resolve the controversy after recording
pro and contra evidence. No doubt, the according to ibid section of law, a civil court shall not exercise jurisdiction over a claim for partition of an estate or holdi ng or any question
connected with or arising out of proceedings for partition, not being a question as to title in any of the property of which partition is sought but when a question of title is raised in a suit then the provisions of section 172(2)(xviii ) of the Land Revenue Act, 1967 would not come
in the way of a civil Court to decide the issue so raised by a plaintiff in his suit. What is a question of title and when it will arise? Question of title is the claim of a person as to his ownership in some property and it will arise when someone denies his right or interest in his
property. It may include when due rights of a person are jeopardized by any mode of partition or order of a Revenue Officer.
In the instant case the plea of the respondent was tha t the property in question is
inherited property but the same have not been partitioned by the other co -sharers. At the time
of inheritance the respondent/plaintiff was minor and his other relatives and uncles were looking after the property and thereafter some of the property of the respondent/plaintiff was
sold out through stamp papers but the share of the respondent/plaintiff were not handed over to him. Major shares are still in the hands of the appellants/defendants and the appellants/defendants finall y refused to partition and hand over the possession of the
property. In rebuttal the respondent/plaintiff took the ground that the property of the respondent/plaintiff was sold out by one Kamaluddin in the year 1945 and now the respondent/plaintiff has no share in the property and they are in possession of the property as owners.
5. In the backdrop of above, suit of the respondents, challenging the mutation entries,
partition and possession of the suit property, squarely falls within the domain of a civil c ourt
because the private partition, as claimed, has created title and interest for the respondent in the disputed land which fact has been denied by the appellants/defendants. The denial can be resolved only by a civil court after recording pro and contra evidence qua the plea. Denial can be resolved only by civil courts after recording pro and contra evidence qua the plea.
Therefore, such a suit can only be entertained and decided by the competent civil court.
6. As far as the findings of the trial court w ith regard to Issues Nos. 2 and 3 are
concerned to substantiate the issues relating to the question as to whether the
respondent/plaintiff is shareholder in the property in dispute or otherwise ? and that whether suit property which requires to be partitio ned but the appellants/defendants are reluctant to
do the same and deprived the plaintiff from his legitimate shares in the property in dispute. It is not disputed that the suit is for partition of the property on the ground of inheritance. It is also not disputed that the respondent/plaintiff is first cousin of the appellants/defends and
father of the respondent/defendant and appellants/defendants were brothers and the suit property was left by forefathers of the respondent/plaintiff and the appellants/def endants.
7. The respondent/plaintiff also claimed possession of the property in dispute but the
appellants/defendants denied the claim of the respondent/plaintiff and taken the ground that one Kamaluddin sold out the property of the respondent/plaintiff an d he is not a co -sharer of
the property in dispute. Here the question arises that how the suit property went in the possession of the appellants/defendants despite no partition between the parties. In our opinion the defense of the appellants/defendants at tained real importance, who denied the
claim of the respondent/plaintiff, therefore the burden is shifted upon defendants to prove that whether Kamauluddin sold out the property of the respondent/plaintiff and he has no share in the disputed property. In t his regard neither the defendants produced any
documentary evidence nor oral evidence to establish that Kamaluddin sold out the property of the respondent/plaintiff.
8. DW-1 stated during cross -examination that the disputed property is inherited property
of Rasool Bakhsh, Kamal Khan and Safar Khan through their father. He further stated during
cross -examination that in his presence no partition of the property was carried out; that it is
correct that after death of Akbar Khan (father of respondent/plaintiff ) the suit property was in
possession of Kamal Khan and Azad Khan (Kamal Khan, Safar Khan and Safar Khan are uncles of appellants/defendants).
9. In view of the above the appellants/defendants failed to prove that the share of the
respondent/plaintiff was sold by one Kmal Khan. On the other hand the respondent/plaintiff produced Ex.P/1 and Ex.P/2 through PW -3. PW -2 being Patwari produced two documents on
record, first document of Inteqal No. 32, Khewat No. 30 and Khatooni No. 30 produced on record as Ex.P/1 and Jamabandi, Khewat No. 29 and Khatooni No. 29 produced on record as
Ex.P/2. Regarding the authenticity of both these documents PW -3 deposed in his statement
that both these documents are correct according to their record. He further stated in his cross -
examination that according to their record, the properties mentioned in Ex.P/land Ex.P/2 are collective and un -partitioned. In both these documents i.e. Ex.P/1 and Ex.P/2 the
respondent/plaintiff Abdullah has been shown as owner/co- sharer of the propertie s
mentioned therein. Both these documents reflect that the ownership and share of properties belong to respondent/plaintiff. The said documents were further corroborated with the ocular evidence produced by plaintiff in shape of PW -1 and PW -2. Therefore, i n our considered
view, trial court, after considering the oral as well as documentary evidence produced by the parties, has rightly passed the judgment and decree, which do not warrant any interference by
this court. Consequently, the appeal is dismissed a ccordingly. The parties are left to bear
their own costs.
ZC/84/Bal. Appeal dismissed.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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