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Civil Second Appeal No. 264 of 1970, decided on 17th June, 1985.

Civil Procedure Code (V of 1908)--

---S. 100--Second appeal- -Respondent's suit for partitioning undivided share in inherited land dismissed by trial Court on ground of its non-maintainability--First Appellate Court upholding order of dismissal but setting aside finding of trial Court on issue of joint possession which was not hit by relevant provisions of law and granting a declarator decree on issue of joint possession--Appellants challenging decree c issue of declaration on ground that no such plea was raised in plain of respondent--View of first Appellate Court not suffering from an fallacy--Although relief for declaration of joint possession was no expressly sought in plaint yet such plea was raised in pleadings and specific issue was framed and evidence was adduced by parties and findings were recorded and declaration of joint possession could bi granted--Judgment of Appellate Court set up an anomalous situation by dismissal of appeal and simultaneously granting relief for declaration of joint possession in favour of respondent--Held, since appellants filed no appeal against dismissal of first appeal and they filed second appeal against relief of declaratory decree granted under same judgment, which was not expressly sought, judgment of first Appellate Court could, therefore, be set aside in second appeal.

Ahmad Din v. Muhammad Shaft and others P L D 1971 S C 762 rel.

Abdul Majeed Khan for Appellants.

A.Q. Halepota for Respondent.

Date of hearing: 14^th April, 1985.

This second appeal is directed against the judgment and decree, dated 12-3-1970 passed by the learned Additional District Judge, Nawabshah in Civil Appeal No. 41 of 1968, which called in question judgment and decree, dated 15-10-1968 passed by the learned Civil Judge, Naushero Feroze in Suit No. 126 of 1966.

2. The Suit No. 126 of 1966 was filed by the respondent Muhammad Bachal for partition of his undivided share of 2 Annas and 8 Pies in the suit land inherited by him and the appellants from their father Haji Zehri Khan about 20 years before. The appellants resisted the suit, contending that their father had apportioned the suit land amongst his sons and put them in possession of the land so assigned to them, during his lifetime. They advanced the plea that their father had given 2 Annas and 8 Pies share to his two sons Haji Sher and Lal Khan, the appellants Nos. 4 to 5 herein, and divided the remaining land amongst the remaining sons, including the respondent Muhammad Bachal, in equal share of 2 Annas and 7 Pies each, and they were separately enjoying the land assigned to each of them. The suit was contested on following 5 issues:-

"(1) Whether the father of the parties had given two Annas and ten Pies share to defendants Nos. 4 and 5

(2) Whether the father of the plaintiff and the defendants had partitioned the land amongst his sons in his lifetime

(3) Whether the parties are in joint possession of the suit land

(4) Whether the plaintiff and the defendants have privately partitioned the property and given such statement before the Mukhtiarkar on 15-4-1964 If so, what is its effect

(5) What should the decree be "

The parties adduced evidence. The learned trial Judge held that none of the first 4 issues was proved and he dismissed the suit with costs.

The respondent Bachal preferred Civil Appeal No. 41 of 1968 in the District Court Nawabshah and it was heard and disposed of by the learned Additional District Judge, who disposed it of by judgment, dated 12-3-1971. The operative part of the judgment reads as follows:-

"4.- In view of the aforesaid discussion and circumstances I feel that it is a fit case wherein the plaintiff is entitled for a declaration that they are in joint possession with the defendant-respondents of the agricultural land left by their ancestor Zahooro Khan. The suit appears to have been rightly dismissed by the lower Court as the civil Court hag no jurisdiction to grant partition of the agricultural land. I, therefore, dismiss the appeal with this variation that a declaration in the original suit is granted to the effect that the appellant-plaintiff is in joint possession of the suit land with the defendants. The court-fee of Rs.l5 be paid by the appellant-plaintiffs on the prayer of declaration granted to him within 15 days. The parties are to bear their own costs. Decree be prepared accordingly."

3. The learned counsel for the appellants has urged that the learned Additional District Judge dismissed the appeal and yet he decreed the suit by declaration that the respondent-plaintiff was in joint possession of the suit land although no such relief was sought for in the suit. On the other hand, the learned counsel for the respondent contended that an issue of joint possession was agitated in the pleadings of the parties and a specific issue was framed thereon and the learned trial Judge held that the issue on joint possession had not been proved, while the learned Appellate Court Judge held otherwise and passed decree for declaration of joint possession and that course could legally be adopted by the learned Judge, who decided the appeal. He has placed reliance on the case of Ahmad Din v. Muhammad Shafi and others P L D 1971 SC 762.

4. The subtle point for consideration is: whether the learned Additional District Judge could- legally pass a decree for declaration when no such relief was sought, particularly in the circumstances that he dismissed the appeal. Undoubtedly, no relief for declaration of joint possession was sought in the plaint, but the plea. of joint possession was agitated in the plaint and that plea was resisted by the defendants /appellants and an issue regarding joint possession was struck and the parties adduced evidence. The learned trial Court was not impressed by the evidence led by the plaintiff /respondent and he held that the issue was not proved. The learned Appellate Court Judge came to the conclusion that the defendants-appellants herein having failed to prove issues Nos. 1, 2 and 4 as regards alleged apportionment of the land amongst the parties by their father or private partition of the property having taken place, it should have been assumed that both the parties were in joint possession of the suit land. The learned Appellate Court Judge also held the view that since the appellants had not challenged the findings of the learned trial Court Judge on issues Nos. 1, 2 and 3 consequential finding on issue No. 3 relating to the joint possession should have been in the affirmative and he gave his verdict accordingly. There is no doubt that the learned Appellate Court Judge was at error in dismissing the appeal and simultaneously granting the relief for declaration of joining possession. In case he came to the conclusion that the case had been made out for granting declaration that the parties were in joint possession of the, suit land, he should have allowed the appeal accordingly instead of dismissing it and then granting the relief of declaration. The question, therefore, arises whether the judgment and decree .passed by the first Appellate Court should be se aside or it may be suitably codified. As indicated above, the respondent's plea in the suit was that the suit land hay remained in joint possession of both the parties, whereas, the appellants' plea was that the suit land had been partitioned and separately assigned to each of the sons, who are parties in the suit by their father during his lifetime. The appellants also advanced the plea that such partition had been recorded in the Revenue record on the basis of statements made before Mukhtiarkar. The burden of proof of private partition, covered by issues Nos. 1, 2 and 4 rested on the appellants. All the 3 issues were not proved t the satisfaction of the learned trial Judge and the findings thereon were against them. They did not challenge those findings either by way of an appeal or by filing cross-objections in the first appeal. The burden of proof of issue on joint possession lay on the respondent/ plaintiff. The learned trial Judge was not satisfied by the evidence adduced on this issue by the respondent /plaintiff and the finding thereon was against the respondent /plaintiff. However, the learned trial Judge dismissed the suit on altogether a different ground of non-maintainatility of the suit under the provisions of M.L.R. 64 and bar to a suit for partition under the Land Revenue Act, 1967. The learned First Appellate Court Judge maintained the dismissal of the suit on the ground of it non-maintainability under M.L.R. 64 and the Land Revenue Act, but set aside the findings of the trial Court on the issue of joint possession, which was not hit either by M.L.R. 64 or by the provisions of the Land Revenue Act, 1967. The view of the learned Appellate Court Judge that since the appellants /defendants had failed to prove their plea of partition /apportionment of the suit land during the liftime of their father, it could be assumed that the land remained in joint possession of both the parties does not suffer from any fallacy, but no such relief was expressly sought. in the plaint. Of course, such plea was raised in the pleadings and specific issue was framed and evidence was adduced by the parties and findings were recorded thereon and declaration for joint possession could be granted in the light of Supreme Court decision in an identical case of Ahmad Din v. Muhammad Shafi and others P L D 1971 S C 762. But the judgment of the learned Appellate Court Judge has set up an anomalous situation by dismissal of the appeal and simultaneously grant of relief for declaration of joint possession in favour of the appellants. There is no appeal against the dismissal for the first appeal, whereas this appeal has been filed against the relief of the declaration. granted under the same judgment. Since no appeal has been filed against the dismissal of the appeal, nor any counter-objection has been filed in this appeal, the judgment and decree for the relief of declaration of joint possession, which was not expressly sought, is liable to be set aside. Consequently, the appeal is allowed and the judgment and decree of the Appellate Court, dated 12-3-1970 is set aside. The parties shall bear their own costs.

M.Y.H

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