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‑‑ S. 24(b)‑Limitation Act (IX of 1908), S. 5‑Decree‑Limita tion‑Failure of executing Court to dispose of objections I applications before passing of find order, held, would not change terminus a quo for purpose of limitation‑Such failure tray constitute a ground for condo nation of delay under S. 5, Limitation Act, 1908.

(b) Dastarul Amat Diwani Kalat, 1923‑ ,

S. 23‑Appeal ‑Partition of property‑Irregularities by executing Court‑Appellate Court declined to disturb impugned order of executing Court and remand for de novo distribution of property to avoid more miseries to legal heirs who bad been under litigation for about 33 years.

A. K. Brohi, Ehsanul Hail and Haji Sarfraz Khan for Appellant.

Muhammad Nawaz Ahmed for Respondents Nos. 1 to 7 and 48 to 56.

Khalid Malik for Respondents Nos. 28, 59 and 6 to 73.

Dates of hearing: 3rd and 4th May, 1986.

JUDGEMENT

This appeal under section 23 of Desturul Amal Diwani Kalat, 1923 (hereinafter referred to as the "Act") has been directed against the order, dated 22nd February, 1984 and three orders all dated 12th May. 1984 passed. by the Deputy Commissioner, Kharan (hereinafter referred to as the "D. C.") in the capacity of an executing Court of a civil decree. The brief facts leading to the filing of the above appeal are that one Nawab Azad Khan of Kharan during his lifetime settled his property in favour of his three sons namely Nawab Noroz Khan, Muhammad Azeem Khan and Amar Khan in equal share through deed, dated 31st December, 1863. After the that of said Nawab Azad Knan in j906, the above property was devolved on the above three sons. However, Nawab Noroz Khan died in the year 1909 who was succeeded by his son Sardar Yaqub Khan as heir apparent but the latter was murdered by his own uncle Sardar Amir Khan in the year 1911. The question of murder was referred to a Shani jirga in 1912 which awarded as Khoon Baha' the entire property of said Amir Khan to the Estate of deceased Yaqub Khan. It appears that after the murder of Sardar Yaqub Khan, Nawab Habibullah Khan succeeded him as the heir apparent in the year 1911. It will be advantageous to reproduce herein below the pedigree table given in a Division Bench judgment of the erstwhile High Court of West Pakistan referred to herein below and reported in Msr. Bibi Lal Bibi v. Mir Baluch Khan and another, P L D 1962 (W. P.) Quetta 28, which reads as follows :‑

Nawab Azad Khan

It seems that the landed property left by Nawab Noroz Khan. and Sardar Yaqub Khan remained in possession and control of Nawab Habibullah Khan, the ruler of Kharan State. However, on 8th October, 1953, Msr. Bibi Lai Bibi daughter of late Nawab Noroz Khan filed a suit in the Court of D. C. Kharan against her nephew Nawab Habibullah Khan for partition of the movable and immovable property left by Nawab Norot Khan. The above suit was dismissed by the learned Qazi Kharan on 9th August, 1958 on the ground that the contents of the plaint of the suit were vague, but upon appeal, the case was remanded by the Majlis‑e‑Shoora, Kharan on 17th February, 1959 to the Qazi with the direction to decide the suit on merits. It may be stated that during the pendency of the appeal before the Majlis‑e‑Shoora, Nawab Habibullah Khan died on 9th October, 1958, who was succeeded by his eldest son, the heir apparent Nawab Mustafa Khan. The above suit of Mst. Bibi Lai Bibi was decreed on 18th April, 1959 in respect of immovable property, but the relief relating to movable property was declined. It may further be stated that Mir lbrahim Khan and Sarfaraz Khan sons of Mehrab Khan and grandsons of Nawab Khan also filed a suit on 2nd April, 1953 for partition against Nawab Habibullah Khan in respect of movable and immovable property left by Nawab Noroz Khan. This suit was also first dismissed, but upon remand from the Majlis‑e‑Shoora, it was decreed on 18th April, 1959 for partition of the immovable property of Nawab Noroz Khan. It may further be mentioned that two other suits were filed; one by Jam Mir Khan and Jam Changez Khan, sons of Shah Bibi and grandsons of Nawab Noroz Khan on 17th November, 1958 against Nawab Habibullah Khan for partition of the property left by Nawab Noroz Khan, and the other by Aisha Bibi daughter of Nawab Noroz Khan for the same relief on 4th December, 1958. The above suits were also decreed on 18th April 1959 and 8th April, 1959. The second set of suits numbering six were filed by the legal heirs of Sardar Yaqub Khan against Nawab Haoibullah Khan for partition of the property received by Sardar Yaqub Khan from Nawab Noroz Khan and the property of Sardar Muhammad Amir Khan given to his Estate by the "Shahi Jirga" as blood compensation. The first suit was filed by Bibi Mah Bibi daughter of Sardar Yaqub Khan on 4th November, 1952. The above suits were also eventually decreed on 29th April, 1959. Two more suits were filed. The above decrees were challenged by Mir Muhammad Tahir Khan son of Nawab Mustafa Khan on behalf of himself and his brothers and sisters. The matter came up for hearing before the erstwhile High Court of West Pakistan in the form of Second Appeals bearing Nos. 1, 2, 3. 4, 5. 8, 9, 10, 11. 12 and 14 of 1960 and Revision No. 17 of 1919, which were disposed of by a common judgment reported in P L D 1962 (W. P.) Quetta 28, referred to hereinabove, whereby the decrees were maintained. It may be advantage ous to reproduce herein below the operative portion of the judgment, where by certain directions were given to the D. C. as the executing Court, which reads as follows ‑

Pages 49 and 50.

But we consider it desirable that some directions should be given to the executing Court namely the Deputy Commissioner, Kharan for parti tioning the property in dispute between the various parties according to their respective shares as determined by the Kazi in his judgment in the above‑mentioned suits. It must be clearly stated that the immov able properties to be partitioned between the parties are those which are detailed and described in the settlement deed of Sardar Azed Khan, dated 31‑12‑1.883. Properties which were settled on Sardar Nauroze Khan under this deed are to be partitioned between the parties, who claim their right from him. Properties of Sardar Amir Khan were awarded by the Shahi Jirga to the heirs of Sardar Yaqub Khan and, therefore, these properties will also be included for partitioning between the parties, who claim their right through Sardar Yaqub Khan. It will be further noticed that the learned Kazi has observed in his judgment that those properties which had been gifted by Sardar Nauroze Khan or Sardar Yaqub Khan will not form the subject‑matter of the partition decree. In these circumstances, it will be open to respondents to lead evidence before the learned Deputy Commissioner or the Local Commissioner or the Local Commissioner appointed by him to prove that the properties claimed by the plaintiffs in the above‑mentioned suits as belonging to Sarder Nauroze Khan or Sardar Yaqub Khan or Sardar Amir Khan have either been gifted or given in lieu of the shares of the heirs of Sardar Nauroze Khan or Sardar Yaqub Khan. If the respondents are able to satisfactorily prove this fact in respect of any property, it will be excluded from partition. We further direct that the learned Deputy Commissioner should appoint Local Commissioners for partitioning the property in dispute. These officers, after giving notice and affording opportunities to the parties, should submit a scheme for partition for the approval of the Deputy Commissioner. The learned Deputy Commissioner, after inviting objections of the parties, should thereafter finally decide the question about the manner in which the property should be partitioned in accordance with their shares between the various parties.

The learned counsel for the opponents in the revision petition has urged before us that three‑fourths of the property has already been partitioned and they are enjoying the benefits of the property. This partition can no longer stand and all such properties which are in the possession of any of the parties should be taken over by the Deputy Commissioner and should be managed by him through his own officers till partition is effected between the parties. But in partitioning the property care should be taken that those properties which have been developed by any party should be allotted to him or her and if possible should be given to them in lieu of his or her share. In the meanwhile it will be open to the learned Deputy Commissioner to allow maintenance allowances to the parties con cerned out of the income of the property in dispute in proportion to their shares."

2. The above judgment of the erstwhile High Court of West Pakistan was assailed before the Honourable Supreme Court of Pakistan through appeals filed by some of the conteaing legal heirs of late Nawab Habibullah Khan and Sardar Yaqub Khan, but the same were dismissed by a judgment reported in P L D 1972 S C 84. After passing of the above judgment by the Honourable Supreme Court of Pakistan, the matter was taken up by the D. C. for the implementation of the decrees. It seems that parti tion of substantial number of landed properties which were the subject matter of the aforesaid suits was effected by the D. C. by an order dated 12th June, 1972. While the matter was still pending before the D. C. for the distribution. of the remaining properties, it seems that Mir Sher Ali. Mir Abdul Gias and Mst. Gul Khatoon tiled revisions against the order of the D. C., dated 12th June, 1973 directing that the properties in their possession should be taken into the official custody, which were registered as Civil Revisions Nos. 10 to 12 of 1973, whereas, the D. C. by big order, dated 18th August, 1975 purported to set aside the execution proceedings taken place subsequent to the above distribution order, dated 12th June, 1972 and made a reference to the High Court for quashment of the above D. C's. order, dated 12th June, 1971, which was registered as Civil Reference No. 19 of 1975. The above revision applications and the reference were disposed of by a judgment, dated 21st January, 1981 passed by a learned Single Judge of this Court, whereby the above revision applications were dismissed and the reference was‑also rejected. The order of the D. C.. dated 12th June, 1973 for taking over of the properties from Mir Sher Ali, Mir Abdul Gias and Mst. Gul Khatoon was maintained. However, certain directions were issued to the executing Court. The operative portion of which is as follows :‑

"Paras. 18 to 21

In the result I direct :‑

"(f) That the order of Deputy Commissioner, dated 12‑6‑1973 be implemented and the property which has not been taken into pos session by the executing Court be attached forthwith.

(ii) The properties which have already been partitioned after confirma tion by the D. C. and possession thereof has been delivered to the lawful owners, their possession should nut be disturbed ; and if any person has any claim against such property or person they may seek their remedy, if available to them, under law in proper Court.

(19) The Deputy Commissioner being an executing Court should appoint impartial Munsifs for the distribution remaining property to the plaintiffs decree‑holders or their heirs in accordance with their shares. In this respect the direction of the High Court made in its judgment on 1‑2‑1961 be complied with.

(20) The objections, if any, already made against the attachment or distribution of any property may ‑be investigated by the Deputy Commissioner and then decide if such property is liable to distribu tion or not.

(21) This is an old matter and it is unfortunate that though the Supreme Court had disposed of the appeal it the year 1971 but the decrees have not so far been executed and roc parties are still litigating their matters in law Courts. The Deputy Commissioner is, therefore, directed to take all necessary measures for implementing the decree and deciding the objections. It is expected that the Deputy Commissioner Kharaa would complete the proceedings within three months and a report to this effect would be made to this Court."

3. The above judgment was assailed before the Honorable Supreme Court of Pakistan, but the appeals filed against the above judgment were dismissed by a judgment, dated 30th May, 1982 with the following clarification :‑

"It is, therefore, amply clear that the property claimed to be in the handy of the appellants through Ube gifts made by Nawah Habibullah Khan cannot be excluded from the Estate which was to b partitioned and the gifts made by Sardar Habibullah Khan except those made to the heirs of Sardar Nauroze Khan and Sardar Yaqub Khan in lieu of their shares will not affect the claim of the respondents. Since the claim of the appellant based on gifts made by Nawab Habibullah Khan in respect of the estate of Sardar Nauroze Khan and Sardar Yaqub Khan cannot be recognized, there is no merit in these appeals.

It will be open to the parties to lead evidence before the Deputy Commissioner or the Local Commissioner appointed by him to that the properties claimed by the plaintiffs in the original suits as belong ing to Sardar Nauroze Khan or Sardar Yaqub Khan or Sardar Amir Khan bad either been gifted or given in lieu of the shares of the heirs of Sardar Nauroze Khan or Sardar Yaqub Khan. If such a claim is satisfactorily proved in respect of any property, it will be excluded from partition.

In result, the appeals, with the clarification made above are otherwise dismissed with no order as to costs."

4. After disposal of the above appeals by the Honourable Supreme Court of Pakistan, the D. C. proceeded with the execution of the decrees and handed over the possession of most of the remaining properties of late Nawab Nauroze Khan and Sardar Yaqub Khan to their respective legal heirs after excluding the share of Nawab Habibullah Khan, which was to'be disposed of by the Federal Government in terms of Article 3 of the President's Acceding State (Property) Order 12 of 1961. The receipts of the various legal heirs and the list of the properties given to them in February, 1982 are on one of the files marked "B" of the executing Court at pages 203 to 215. It may be advantageous to reproduce hereinbelow the receipt executed by the present appellant in respect of taking over of the properties on 13th February, 1982 and the list of the properties, which read as follows 13‑2‑1982

5. It seems that the Commission which was appointed by the D. C. after finalization of the distribution 'of the remaining landed properties in terms of the High Court's above judgment of 1981 submitted its report dated 9th February, 1984 to the D. C., who by his above order, dated 22nd February, 1984 accepted the recommendations of the Commission and approved the disposal of the remaining landed properties in the manner suggested in the above report. The Assistant Commissioner on 2nd October, 1984 submitted his report for the implementation of the above order of D. C., dated 22nd February, 1984 and reported that the properties "Noroz Kalat", "Siah Tagzi" and of "Mauza Sibi" excluding the share of Nawab Habibullah Khan have been distributed. It may also be stated that the D. C. also disposed of certain Miscellaneous applications/ objections filed by the appellant and some other legal heirs by the three orders of even date, namely, 12th May, 1984. The appellant has filed the present appeal on 18th June, 1984 against the above order of the D. C., dated 22nd February, 1984 and the three orders, dated 12th May, 1,984 as mentioned hereinabove.

6. In support of the above appeal, Mr. A. K. Brohi, Advocate assisted by Mr. Ehsanul Haq, Advocate has made the following submissions :‑

( ) That the Commission had finalized the report and the D. C. had passed the above order, dated 22nd February, 1984 without providing reasonable opportunity to the appellant to put up his point of view, as he had no notice of the dates of hearing ;

(fi) That the estates of late Nawab Noroz Khan and Sardar Yaqub Khan have been distributed in piecemeal without following the basic requirements ; and

(iii) That the properties which were gifted by late Nawab Nauroz Khan and Sardar Yaqub Khan to the appellant have not been allowed to be retained by him.

On the other hand, Mr. Muhammad Nawaz Ahmed, Advocate appearing for respondents Nos. 1 to 7, who are some of the legal heirs of late Nawab Noroz Khan has submitted as follows :‑

(i) That the appeal is time‑barred ;

(ii) That the distribution of the properties carried out by the D. C. on 12tb June, 1972 was approved by the High Court in its aforesaid judgment, dated 21st January, 1981 ;

(iii) That the appellant had not claimed in his suit that any property was gifted to him either by late Nawab Noroz Khan or Sardar Yaqub Khan;

(iv) That the appellant having accepted his share in 1982 cannot re agitate the above question, and

(v) That the orders of the D. C. are in accordance with law and just and proper.

Mr. Khalid Malik, Advocate appearing for respondents Nos. 28, 59, 60, 64 to 73, who are claiming through late Sardar Yaqub Khan adopted the arguments of Mr. Muhammad Nawaz Ahmed, learned counsel for the respondents Nos. 1 to 7, besides raising the question of limitation.

Mr. Iftikhar Muhammad, Advocate representing respondents Nos. 74, 74‑A, 74‑B, 74‑C, and 74‑D, claiming through late Sardar Yaqub Khan also adopted the arguments of Mr. Muhammad Nawaz Ahmed, Advocate, whereas Mir Zabir Khan, respondent No. 39 appearing for himself and as Attorney for the respondents Nos. 44 to 47 claiming through late Nawab

Habibullah Khan and also for respondents Nos. 24 to 29 claiming through late Sardar Yaqub Khan and also the legal heirs of respondent No. 9 Jam Mir Khan, though alive but declared unfit, has submitted that the appel lant's claim to certain properties as his exclusive properties, is unfounded.

However, he further submitted that the distribution of properties by the D.C. was not done justly and properly, inasmuch as, the above respondents were given barren land, whereas, some. other legal heirs were given well‑developed land and that the manner of distribution was also not warranted. The respondent No. 1 I‑A Mir Jan Muhammad represent ing himself and also respondents Nos. 11‑b, 11-c, and 11‑d, the legal heirs of Bibi Mali Bibi submitted that the distribution should not be disturbed as it would result in miscarriage of justice.

7. Before taking up the contentions on merits, it may be pertinent to first dilate upon the question of limitation. In this regard, it may be stated that the appellant filed an application for certified copy of the D.C's. order, dated 22nd February, 1984 on 26th March, 1984 and received the same on the very days but filed the appeal on 18th June, 1984 i.e. after the expiry of 116 day, after excluding the date of the order and the date of presentation of the appeal. We may also exclude one more day, Le. 26th March, 1984, on which, the application for the certified copy was made and the same was delivered ; thus the appellant has filed the above appeal after 115 days, whereas, section y r, (y) of the Act provides the limitation of 90 days for an appeal. It is, therefore, evident that the appeal is barred by about 25 days. However, it was submitted by Mr. A.K. Broht, learned counsel for the appellant that the above order of the D. C., dated 22nd February, 1984 was void, as it was passed without disposing of the appellant's pending objections/applications to the distribution and, therefore, the cause of action accrued to the appellant upon the dismissal of his objections/applications by the above three orders, dated 12th May, 1984. To reinforce the above argument, he has further submitted that if the appellant's objections/applications would have been allowed, the above order dated 22nd February. 1984 had to be modified by the D.C. himself. There is no doubt that the D.C. first should have disposed of the appel lant's pending objections' 'applications before passing of the final order, dated 22nd February, 1984. However, in my view, the above lapse on the part of the D.C. would not change the review a quo for the purpose of limitation period. But the above fact may constitute a ground for the condonation of delay under section 5 of the Limitation Act. However, in such application has been made by the appellant in this regard. In the view of the matter, the appeal is admittedly time‑barred and is liable to be dismissed on that account.

It may be pertinent to observe that the appellant has not filed the copies of his objections/applications referred to in the above three orders all dated 12th May, 1984, nor they have been pointed out in the files of the executing Court. Mr. A.K. Brohi, learned counsel for the appellant has placed a certified copy of an application dated 16th November, 1974, in which, the following prayer was made :‑

"It is, therefore, prayed that all the proceedings taken by the Local Commissions be quashed, and new Local Commissions consisting of some persons acquainted with law and the procedure may kindly be appointed with detailed instructions, necessary for the partition in accordance with judgment/decree under execution."

8. From the above three order= all dated 12th May, 1984, it is apparent that in the objections/applications, the above quoted prayer was claimed by the appellant. It may again be pointed out that the High Court in the aforesaid judgment dated 21st January, 1981 passed in the aforesaid Revisions and the D.C.s reference, clearly directed that the possession of the properties which have already been partitioned and confirmed the D.C. and the possession whereof had been delivered to the 1awful owner should not be disturbed and that if any person had any claim against such property or person, they might seek their remedy, if available to them under the law in proper Court, which judgment was upheld by the Honourable Supreme Court of Pakistan.

9. However, I would examine the case on merits to see, whether it will be just and proper to allow the appellant's appeal on merits.

This leads us to the first submission of Mr. A.K. Brohi, learned counsel for the appellant that the appellant was not given fair opportunity by the Commission and the D.C. before finalization of the report of the Commis sion and passing of the order by the D.C., dated 22^nd February, 1984 to put up his point of view, as he had no noti6e of the date of hearing. In this regard, it may be observed that 1 have gone through the entire record forwarded by the executing Court, which is voluminous running into about one thousand pages. Mr. A.K. Brohi has invited my attention to the report of the Commission, dated 9th February, 1984, particularly to the portion wherein it has been stated that the appellant in spite of the notices has not been attending the case. He has also invited my attention to the fact that though in the above report, it has been stated that the appellant was in Quetta, but notice dated 8th February, 1984 for appearing before the Commission on 9th February, 1984 was pasted at the appellant's address in Kharan, which he discovered on 14th February, 1984. In this regard, it may be pertinent to point out that in the above‑quoted judg ment of the High Court dated 21st January, 1981, the D.C. was directed to finalize the cast within three months. From the record, it seems that the Commission had been fixing the case from time to time, but for one reason or other, the ratter cold not be finalized, particularly, on account of the fact that the number of legal heirs on record, was large. The Com mission, inter alia, had fixed the case on 26th January, 1984 but the "case was adjourned to 30th January, 1984. After that it was. adjourned to 6th February, 1984 and thereafter to 9th February, 1984 upon the request of Mir Rahim Khan, Mir Muhammad Rafique. Muhammad Jan, Zafar Ali and Pir Ail Khan through application, dated 6th February, 1984, which is on record of the executing Court. From the Risaldar s report dated 6th February, 1984, which is on the executing Court's record, it appears. that the appellant was in Quetta and, therefore, could not be served with the notice for 6th February, 1984. According to the Assistant Commis sioner's report dated 6th February, 1984 which is or. record at page 224 6f he file marked "A", the appellant's son Babar was informed about the date of hearing on the telephone at Quetta and was asked to appear within three days with proof alongwith his Advocate. There is yet another report of the Assistant Commissioner, dated 8th February, 1984 at page 225 of the above file marked "A" indicating that the appellant's son Babar was again informed on telephone on 7th February, 1984 at Quetta to ask the appellant to appear on 9th February, 1984 before the Commission. It further indicates that the appellant's wife Begum Balqees Shahbaz and his son Taimoor were also informed on 8th February, 1984 for 9th February, 1984.

In view of the above documents on record and keeping in view the factum that the litigation between the parties was initiated in 1952 and are partition decrees were upheld by the Honorable Supreme Court of Pakistan in 1971 and the High Court in its aforesaid judgment, dated 21st January, 1981 directed the D.C. to finalize the distribution of the estates as per above judgments within three months, in my view, it cannot be urged that the Commission failed to provide a reasonable opportunity to the appellant on that its decision to proceed with the matter on 9th February, 1984 was not justified. The D C. had also issued notices to the parties before passing the above order dated 22nd February, 1984. From the file of the executing Court marked "A" at page 297, it seems that the appellant had received the notice on 14th February, 1984 for 19th Febru ary, 1984. He appeared on the above date and presented his objections.. After hearing him and the parties present, the D.C. fixed the case for order on 22nd February, 1984. therefore he cannot have a grievance that the D.C. had passed the above order without hearing him. It will be advantageous to reproduce hereinbelow the diary of 19th February, 1984, which reads as follows :

19‑2‑84."

Even otherwise, in my view the appellant has not been prejudiced, as the points which he wanted to urge before the Commission as to the distribution of the properties, have been examined in the light of the submission made by Mr. A. K. Brohi, learned counsel for the appellant and I am inclined to hold that no exception can be taken to the Commission's report or the order passed in pursuance thereof by the D. C. on 22nd February, 1984.

10. Adverting to Mr. A. K. Brohi's submission that the estates of Nawab Noroz Khan and Sardar Yaqub Khan have been distributed in piecemeal without following the basic requirements, it may be observed that he has invited my attention to the above‑quoted direction of, the Honourable Division Bench in the above judgment of 1962, whereby it was, inter alia, ordered that the learned D. C. should appoint Local Commissioner for partitioning the property in dispute and that the afore said. officers after providing opportunity should submit a scheme for partition for the approval of the D. C. It has been, therefore, contended that the above directions of the Honourable erstwhile High Court of West Pakistan was not complied with, but on the contrary, the estates were distributed in piecemeal. It was further submitted that the distribution of the properties was made first before the approval of the same by the D. C. It is true that the D. C. had not strictly complied with the above directions as the distribution of the estates among the legal heirs of late Nawab Noroz Khan and late Sardar Yaqub Khan had been done in piece meal, first in 1972, thereafter, in 1982 and 1984. In this regard, it may be pointed out that the High Court in its. aforesaid judgment, dated 21st January, 1981, which judgment was upheld by the Honourable Supreme Court of Pakistan by its judgment, dated 30th May, 1982 referred to hereinabove, maintained the distribution of the properties done on 12th June, 1972. After the above judgment of the High Court, the Commission was appointed and thereafter some of the properties of the remaining estates were distributed on 13th February, 1982 and thereafter upon the ,passing of the above order by the learned D. C. on 22nd February, 1984.

I am inclined to hold that it is riot open to me to question the distribution of the estates made on 12th June, 1972 in view of the above judgments of the High Court and the Honourable Supreme Court. It may be observed that except few of the properties in respect of which the legal heir, had made divergent claims, the remaining estates of late Nawab Noroz Khan and late Sardar Yaqub Khan were distributed in February, 1982. The appellant had executed the receipt in respect of his share received by him reproduced hereinabove. Keeping in view the volume of the landed property. the number of legal heirs involved and the location of the properties at various places, in my view, it was not practical to distribute the entire estates at a time. In this regard, it may be pertinent to point out that in the Commission's report, it has been mentioned that a number of legal heirs, namely, Mir Muhammad lbraheem Khan, Mir Abd A Qudus, Mir Pir Dil Khan, Murad Bibi, Met run Nisa through Zafar Ali and Bibi Jannat Khatoon made a joint statement before the Commis sion that they had no claim in respect of Khashkai," and that factually it belonged to late Nawab Habibullah Khan. It has been further pointed out in the above report that some of the legal heirs of late Sardar Yaqub Khan who raised claim in respect of the above property failed to sub stantiate the same. The appellant has not placed any document on record of the Commission or of the D. C. or before me to indicate that factually the land in "Khashkan" belonged to the estates of the two deceased in question. Admittedly this property was not mentioned in the deed of 1883.

At regards the other property situated in "Sigh Tagzi", it may be pointed out that it is an admitted position that the same belonged to the estate of late Nawab Noroz Khan. The Commission had recommended that since the above property belonged to late Nawab Noroz Khan, the same should be distributed among his legal heirs including late Sardar Yaqub Khan,. The above finding cannot be assailed by the appellant. He could not have claimed the entire property of "Sigh Tagzi". ‑

11. I have given my serious thought to the question, whether in vie of the irregularities urged by A. K. Brohi, this Court should disturb the impugned order of the D. C., dated 22nd February, 1984. In my view, if I were to remand the case for de novo distribution of the estates from the stage of the High Court judgment, dated 21st January, 1981, it would bring more miseries to the legal heirs who have been under litigation fort the last about 33 years, than to benefit them.

12. The Commission and the D. C. have dealt with the remaining properties in derails. According to their finding, the properties situated in " Kandora Bent" and "Sehcharki" were given to Mst. Murad Bibi as her :hare from her father's estate in 1972, which has been maintained, whereas the land situated in "Mauza Sibi" and "Bunt Luddu" Tebsil Kharan excluding certain portion as per "Sanad", dated 12 Jamadius Sani, 1330, was given by Nawab Habibullah Khan to the legal heirs of Nasir Khan on or about 11th February, 1954 as "Khoon Baha" as the latter was also killed alongwith late Sardar Yaqub Khan and the claim of his legal heirs was settled by late Nawab Habibullah Khan from the estate of late Sardar Khan, who had received the entire property of Amir Khan. The remaining portion of the above property which was in possession of Mst. Bibi Gul Khatoon was ordered to be distributed among the legal heirs of Sardar Yaqub Khan.

13. It may further be pointed out that the property situated in "Mauza Noroz Kalat" was ordered to be distributed among the legal heirs of late Nawab Noroz Khan, and the property known as "Koshkan" and "Mashkail" were ordered to be kept in "Mianjikhana" in the name of heirs of Nawab Habibullah Khan. It may be observed that the learned counsel for the appellant or any other counsel or party has failed to point out that the above findings are contrary to the evidence on record.

14. Adverting to Mr. A. K. Brohi's contention that the appellant's personal properties have been included and distributed among the legal heirs, it may be observed that he in furtherance of his above submission, has referred to the decree passed by the learned Qazi, in which, reference to "Bakhsbish" has been made. It has been also pointed out by him that in the above suit, the appellant bad claimed certain properties as his individual properties and since the above suit was decreed. the aforesaid properties were liable to be excluded. He has further submitted that in terms of the judgment of the erstwhile High Court of West Pakistan, reported in P L D 1962 (W. P.) Quetta 28, the respondents in the appeal were obliged to produce evidence for excluding any property as their personal property and not the appellant. In this regard, it may be observed that the appellant in his objection, dated 15th February, 1984 which is at page 293 of the executing Court file marked "A", had claimed the following properties as his personal properties i.e. ; the lands situated in "Mebtab", "Sigh Tagzi", "Shikari Bunt" "Bungari (Luddo), "Aab Nakhlisat" and trees and the lands situated in "Mauza Nagar". It will

be advantageous to reproduce the contents of the plaint and the appellant's appeal, dated 18th September, 1953 and 25th July, 1959 respectively, which read as follows :‑

.

The Deputy Commissioner, Kharan. Subject : Distribution of ancestral and other immovable property. Sir,

Respectfully I submit that I have considerable immovable property, both ancestral and other situated in various Niabats of Kharan. This property is jointly owned by me with the Nawab of Kbaran, Mir Habibullah Khan. As there is likelihood of this joint possession resulting in unpleasantness between the family I request that the property may be officially distributed amongst us.

I will do the Nishandehi of the property when required.

Yours obediently,

18‑9‑1953 (Sd.)

Mir Shahbaz Khan Nausherwani."

"Appeal.

In the Court of Majlis‑e‑Shoora, Kalat Division, Kalat

Mir Shabbaz Khan son of Sardar Mir Muhammad Yaqub Khan‑Appellant versus Nawab Mir Ghulam Mutafa Khan and 18 others‑Respondents

Suit for the partition of movable and immovable property.

Appeal under section 24 Dasturul Amal (Civil) Kalat against the judgment passed by Kazi Kharan dated 28‑4‑1959 which was against Shariat and Law, whereby depriving the appellant and others heirs of their due share in the movable and immovable and gifted property.

"Sir.

The appellant submits as under :‑‑

(1) That this appellant and other heirs are entitled to shares according to Shariat in the property movable and immovable both left by the deceased. And no portion of the property can be kept away from the due division. But the Qazi Khaian has deprived this appellant and other heirs in a portion of the property on the ground that the disputed. property is Hibba one, which is altogether against law and Shariat.

(2) That this appellant and other heirs cannot be deprived of from their due share in the property left by the deceased, due to the fact that nobody has got any right to deprive the real heirs from the snares which they are legally entitled to get or can make Hibba of this property to somebody else. In the presence of this appellant and other heirs such gift is illegal and void.

(3) That the part of the judgment delivered .by Qazi Kharan in this matter depriving the appellant of a portion of the property and by declaring that portion as Hibba property, is against Shariat and law and liable to be set aside.

It is prayed that considering the above legal facts the appeal be accepted and cost be awarded.

25‑7‑1959

Appellant

Mir Shahbaz Khan Nausherwani son of Sardar Mir‑Muhammad Yaqub Khan."

15. A perusal of the above‑quoted plaint and the memo of appeal indicates that the appellant had not claimed any property as his personal pro perty out of the estates of late Nawab Noroz Khan and Sarlar Yaqub Khan. On the contrar ,, he admitted the factum that the above estates belonged to the legal heirs jointly. However, Mr. A. K. Brohi, learned counsel for the appellant has referred to a document which is on record of the suit .file and which reads as follows :‑

He has also referred to the statement of the appellant made before the Qazi on 13th April, 1959 particularly to the portion which reads as follows :‑

He has also referred to a portion of the decree, dated 28th April, 1959, which reads as follows :‑

Neither from the above‑quoted document, nor from the above portion of the statement of the appellant or of the decree, it is clear that the appellant had claimed the properties mentioned in the document as his personal properties. The above document was not filed alongwith the plaint nor it has been exhibited. As pointed out hereinabove, in his plaint and the memo of appeal quoted hereinabove, the case of tire appellant was that the subject‑matter of the suit was the joint properties. In the above document in para. 2, reference has been made to two Jeeps, one Car, two Buses and also to Rs. 12,35,000 cash and 500 gold coins (Ashrafi). There was no occasion for the appellant to have mentioned the above items if they were his personal properties. The other lists of properties also produced in the above suit indicate that the landed properties mentioned in the above‑quoted document are also included in the said lists showing the estates of late Nawab Khan and late Sardar Yaqub Khan. Further more, the suit which was filed by Mss. Gul Bibi also contains the lists of the landed properties which include the landed pro perties mentioned in the above‑quoted document. The above suit was also decreed.

In my view on the basis of the above judgment/decree of the Qazi, the appellant cannot claim any of the properties mentioned in the Settle ment Deed, dated 31st December, 1883 as his personal properties. His, personal properties were not in issue in the suit. Additionally, it was not. agitated before the erstwhile High Court of West Pakistan in the aforesaid second appeals that any of the properties mentioned in the Settlement Deed, dated 31st December, 1883 belonged to the appellant. (He was one of the appellants in the above second appeals). On the contrary, the respondents in the above appeals i.e. the legal heirs of late Nawab Habibullah Khan, particularly the heir apparent Mustafa Khan had contended that the properties which were in the hands of late Nawab Habibullah Khan were his personal properties. In that context, the High Court in the concluding para. quoted hereinabove observed that. "it will be open to the respondents to lead cvidence before the learned Deputy

Commissioner or the local Commissioner appointed by him to prove that the properties claimed by the plaintiffs in the above‑mentioned suits as belonging to Sardar Noroz Khan or Sardar Yaqub Khan or Sardar Amir Khan have either been gifted or given in lieu of the shares of the heirs of Sardar Noroz Khan or Sardar Yaqub Khan". The appeals before the erstwhile High Court of West Pakistan proceeded on the assumption that the properties mentioned in the above Settlement Deed, dated 31st December, 1883 belonged to the estates of late Nawab Noroz Khan and late Sardar Yaqub Khan.

I am inclined to hold that it was not open to the appellant in view of his own pleadings in the suit and the appeal referred to hereinabove, to have led any evidence before the Commission or before the learned D. C. to prove that any of the properties mentioned in the above Settlement Deed, dated 31st December, 1883 was his personal property. The erstwhile Hieh Court of West Pakistan has clearly identified the properties which were to be administered subject to toe exclusion of the property, if any, in terms of the aforesaid judgment of the erstwhile High Court of West Pakistan quoted hereinabove in para. 1, upon production of satisfactory proof by the respondents. The present appellant was one of the appellants in the aforesaid second appeals and not one of the respondents. I may also point out that the subject‑matter of the aforesaid suits were the estates of late Nawab Noroz Khan and late Sardar Yaqub Khan not the estate of late Nawab Habibullah Khan. The personal properties belogning to late Nawab Habibullah Khan could not have been the subject‑matter of the Commission's report or of the D. C's. order, dated 22nd February, 1984. They are to be administered by the Federal Government as pointed out hereinabove.

16: Before parting with the above discussion, I may observe that the respondent No. 39 Mir Zahir Khan had complained that he and the other respondents whom ht; was representing, were not given the physical possession of their shares as per distribution. I would, therefore, direct the learned D. C. to ensure that all the legal heirs receive their respective share as per distribution of 1972, 1982 and of 1984 referred to hereinabove, in case, any of them has not yet received the same.

With the above observation, the appeal is dismissed with no orders as to cost. .

M. H. A.

Appeal dismissed.

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