Find a Lawyer

Civil First Appeal No.4 of 1980, decided on 9th October, 1986.

---Art.71--Oral evidence of a party to suit, on question of fact value of--Dispute relating to immovable and movable property left by deceased--Statement of a party to suit that deceased had left behind agricultural lands, garden, urban properties and cash, held would postulate that although deceased had a share in immovable property yet he had no share in movable property i.e. gold, silver etc.

---S.11--Res judicata, plea of--Prior suit disposed of as per compromise between parties--Plaintiffs were not party to such compromise- Effect--Judgment of previous suit not produced in evidence--In absence of judgment of previous suit, it could not be said with certainty that issues arising in present suit had been heard and finally decided by Court in that suit.

--- Plea of--Respondent, in previous suit had claimed share of plaintiff /appellants in property in lieu of service rendered by maintaining them--Such suit was subsequently withdrawn--Pleas taken by respondent in previous suit, held, would negate his pleas of adverse possession and bar of limitation in respect of same property in present suit.

---S.96--West Pakistan Land Revenue Act (XVII of 1967), Ss.135 & 172(2)(xviii)--Applicability of Ss.135 & 172--Sections 135 & 172, held, would come into operation only when title of land owner was not disputed--Although plaintiff in suit did not pray for declaration on the yet in view of pleas of limitation and adverse possession raised by defendants in written statement it could not be said that their title was not under dispute--Jurisdiction of civil Court, held, was ousted only when there was no dispute over title and suit was for partition simpliciter--Although there was dispute as to the title of plaintiffs on the ground that their claim was barred by res judicata and by limitation yet such questions being beyond the scope of powers of Revenue Court, dismissal of suit by Trial Court had left plaintiff/ appellants with no other remedy available as same could be dealt with only by civil Court--Finding of Court below being not sustainable was set aside by High Court in its appellate jurisdiction.

---Ss.9 & 96--Mesne profits, awarding of--Jurisdiction of civil Courts for awarding mesne profits, held, was not barred by provisions of Revenue Act--High Court in its appellate jurisdiction allowed mesns profits to plaintiffs/appellants for a period of three years prior to institution of suit by way of preliminary decree.

A.Q. Halepota for Appellants.

N.K. Jatoi for Respondent No.1.

Date of hearing: 5th October, 1986.

This First Appeal is directed against the judgment and decree passed by the learned III Additional District Judge, Sukkur, dated 22-10-1979 in Civil Suit No.160/1968.

2. The facts leading to this appeal in brief are, that the appellants are the legal heirs of deceased Ghulam Dastagir who died on 3-12-1941. At the time of his death the said Ghulam Dastagir alongwith his brothers respondent No.1 and one Abdul Wahid predecessor-in-title of respondent Nos.2 to 8 jointly owned certain immovable property shown in para No.4 of the plaint and some gold, silver, cash and business firm shown in para.5 of the plaint. This property was inherited by the three brothers and their Mother Mst. Basra from their father, Mst. Basra also died on 9-5-1960. Presently, the parties to this appeal are the surviving heirs interested in the property the appellants, who are widow and daughters of late Ghulam Dastagir were looked after by respondent No.1, who used to pay them and maintain them from the income of the joint property. However, about four years before institution of the suit, when the appellants demanded separate share of the property, the respondent No.1 refused and, therefore, the appellants filed the suit No.160/1968 which was disposed of by the impugned judgment.

3. Respondents Nos.l, 3, 4, 6, 7 and 8 filed written statements in the trial Court, while respondents Nos.2 and 5 did not file any written statement. However, only respondent No.1 contested the suit, led evidence and cross-examined the appellants' witnesses. In this Court also respondent No.1 is contesting the appeal. The other respondents were served by publication but they have not put any appearance in appeal. The respondents in their written statements admitted the property shown in para No.4 to be jointly owned by deceased Ghulam Dastagir but denied the joint ownership of the movable property shown in para 6 of the plaint. The Defendants/ respondents further raised the objection, that the suit was not maintainable according to law, that the Court had no jurisdiction, that the suit was barred by adverse possession and that the suit was also barred under section 47 C.P.C.

4. I have heard Mr. Halepota, counsel for the appellants and Mr. N.K. Jatoi, counsel for the respondent No.1, and have also gone through the R & Ps. of the suit.

5. In the trial Court, appellant No.1 had examined herself and in rebuttal one Shabbir Ahmad son of respondent No.1 had examined himself. The learned trial Court framed the following issues.

(1) Whether plaintiffs as heirs of deceased Ghulam Dastagir are entitled to any share in the disputed property movable and immovable

(2) What heirs were left by Mst. Basra after her death

(3) Who are the heirs of Mst. Muradan

(4) Whether the suit is time barred

(5) Whether the defendants are owners by adverse possession

(6) Whether the Court has jurisdiction

(7) Whether the suit issue not is maintainable according to law

(8) Whether the suit is barred by the principle of res judicata

(9) What should the decree be

The findings of the learned trial Court on issue Nos.l to 3 are neither challenged in this appeal nor in the memo of objection filed by the respondent No.1.

6. It is not disputed that the appellant No.1 is widow of late Ghulam Dastagir, while appellants Nos.2 and 3 are his daughters. As such there can be no dispute that they are his legal heirs. It appears, that one Ghulam Kadir son of Ghulam Dastagir also survived his father but he has not been made party to this suit, to which I will advert latter. The (earned trial Court, while discussing the issue No.1 has held, that the present appellants are entitled to get from such suit property, which is proved to be jointly owned by Ghulam Dastagir at the time of his death, shares to the following extent.

7. As already pointed this finding is not disputed in memo of objection filed by respondent nor it is challenged by the appellants in this appeal.

8. The learned trial Court has not given any finding as to which properties were jointly owned by Ghulam Dastagir (hereinafter called the deceased) at the time of his death. In para 4 of the plaint, details of immovable property both, urban and agricultural land are shown. The urban immovable property consists of one house at Therhi, one house at Khairpur, and one house at Sukkur. It also gives details of agricultural land in Deh Khairpur, Deh Phat Taluka Khairpur, Deh Therhi Taluka Khairpur, Deh Shah Ladhani Taluka Khairpur, Deh Walre Wadun, Deh Milani, Taluka Gambat. In the written statements filed by respondents they have admitted the joint ownership of deceased in this property at the time of this death.

9. In para 5 of the plaint it is averred, that the deceased also had joint share in the gold, silver and firm carrying on business in name of Jumani Brothers. These averments are denied by the respondents in their written statements. Appellant No.1, who examined herself in the Court, states, that her husband, at the time of death had left behind agricultural lands, gardens, urban properties and cash. She does not state about any gold, silver or any business. Therefore, it can safely be concluded that at the time of the death of deceased he had joint share in the immovable property shown in para 4 of the plaint, but had no share in the movable property shown in para 5 of the plaint.

10. The respondent No.1 has contended, that a suit was filed in 1942 bearing No.4/1942 in respect of the suit property which was compromised through Award by virtue of which Ghulam Kadir son of deceased Ghulam Dastagir got 20 acres and some ghuntas of land. It is, therefore, contended, that this suit is barred by principle of res judicata and further more that the respondent No.1 is in adverse possession of the properties since then.

11. It may also be pointed, that in 1966, respondent No.1 admittedly filed another suit in respect of the property which is subject-matter of the present suit against plaintiffs and respondents Nos.2 to 8 bearing No.9/1966. Admittedly, this suit was disposed of as per compromise between the respondents No.1 and 2 to 8 and the present plaintiffs were not party to the compromise. The copies of the judgment and decree in both suits Nos.9 of 1966 and 4/1942 have not been produced in evidence by parties either in trial Court or in this Court. However, a certified copy of the plaint in Suit No.9/1966 was filed by the appellants alongwith the plaint in the trial Court though it was not exhibited during the evidence of appellant No.1. The learned trial Court has however, looked into this plaint which was in the file of case while forming opinion as to the respective pleas of the parties.

12. In absence of the judgment of the suit No.4/1942 the learned trial Court has rightly held, that it cannot be said with certainty that issues arising in this suit have been heard and finally decided by the Court in Suit No.4/1942. Furthermore, if the claim of the appellants with regard to suit property had finally been disposed of in suit No.4/1942 they would have not been made party to the suit filed by respondent No.1 in 1966. Admittedly, in pursuance of suit B No.4/1942 Ghulam Kadir got his share of 20 acres and some ghuntas of land and, therefore, it appears that he was not made party to the suit filed in 1966. For the same reasons, appellants have not impleaded Ghulam Kadir in the suit filed by them, apparently, because Ghulam Kadir had no more any interest left in Vie suit property, therefore, I see no reason to disturb the findings of the learned trial Court on issue Nos.7 and 8.

13. With regard to Issues Nos.4 and 5 the respondent No.l, who claims adverse possession, has not examined himself, but only his son Shabbir Ahmad was examined. The learned trial Judge has mainly relied on the pleas of respondent No.1 raised by him in the plaint of suit No.9 of 1966 which was admittedly filed by respondent No.l. In this plaint in para No.2, respondent No.l has averred that the defendants No.8 to 10 (plaintiffs) were legal heirs of the deceased Ghulam Dastagir and after his death they were maintained and brought up by him (respondent) in lieu of their share in land. In para 19(1) of this plaint the respondent No.l also, therefore, claimed the share of defendants No.8 to 10 by the plaintiffs. However, this suit was admittedly withdrawn against plaintiffs. The learned trial Court, fee therefore, rightly held, that the pleas taken by respondent No.l in suit No.9/1966 negate his plea of adverse possession and that the suit is time barred by limitation. I accordingly, uphold the finding of trial Court on these issues.

14. Only ground on which the suit of the appellants was dismissed by the trial Court was, that the suit was barred under section 135 r/w clause (xviii) of subsection (2) of section 172 of the West Pakistan Land Revenue Act 1967 as adopted by Government of Sind (hereinafter called the Act). Section 135 of the Act, reads as under:

"Any joint owner of land may apply to a Revenue Officer for partition of his share in the land if:-

(a) at the date of the application the share is recorded under Chapter VI as belonging to him; or

(b) his right to the share has been established by a decree which is till subsisting at that date; or

(c) a written acknowledgement of that right has been executed by all persons interested in the admission or denial thereof."

Clause (xviii) of subsection (2) of section 172 of the Act may be reproduced as under:

S.172(2) "Without prejudice to the generality of the provisions of subsection (1), a Civil Court shall not exercise jurisdiction over any of the following matters namely:-

(xviii) Any claim for partition of an estate or holding, or any question connected with or arising out of, proceedings for partition, note being a question as to title in an of the property o which partition is sought."

The bare reading of these two provisions would show, that they would come into operation only when the title of the land-holder is not disputed.

15. No doubt, the appellants in their suit did not pray for declaration of the title but keeping in view the pleas raised by respondents, it cannot be said, that their title was not under dispute. Respondent No.l has raised the pleas of adverse possession and of limitation against the claim of the appellants with regard to land in the suit. Further more the suit was not for partition simplicitor but it was also for the mesne profits.

16. It is submitted by the learned counsel for the appellants, that the questions of adverse possession, limitation, res judicata as well as mesne profits could not be decided by a Revenue Court. He has relied upon two cases decided by this Court. In the case of Jaffar Khan v. Nanikaram & 3 others reported in P L D 1973 Karachi 689 the petitioners had filed a suit for partition and mesne profits with regard to certain lands in the Court of Civil Judge. The defendants in their written statements questioned the title of the plaintiffs over the land in dispute. During the pendency of the suit, West Pakistan Land Revenue Act, 1967 was promulgated and the plaint of the petitioners was rejected under Order 7 Rule 11 C.P.C. on the ground, that new law had taken away the jurisdiction of Civil Court with regard to subject-matter of the suit. The learned Single Judge of this court in Civil Revision examined the question of retrospective applicability of the said Act and also examined the question as to whether jurisdiction of the Civil Court was barred. It was held, that the cases pending in the Civil Court for partitioning of land and involving question of title were not hit on coming in force of West Pakistan Land Revenue Act, 1967.

17. In another case reported in P L D 1978 Karachi 267 (Deen Muhammad & others v. Mehar Ali Khan and others) a Single Judge of this Court set aside the order of the learned Civil Judge rejecting the plaint of the petitioner under Order 7 Rule 11 C.P.C. on the ground, that suit was barred in view of the provisions of section 172(2)(xviii) of the West Pakistan Land Revenue Act, 1967. It was observed by the learned Single Judge, that the prayer clause cannot be read in isolation W and divorced from the case set up by the plaintiffs/ applicants in the plaint. In the instant case the plaint has not been rejected by the Court below but a finding has been given after taking into consideration the evidence and pleadings of the parties, that the suit was barred under sections 135 and 172 of the Land Revenue Act, 1967. Therefore, while considering as to whether suit was so barred by the said provisions law, the Court has to take into consideration the pleadings raised by both the parties. On the plain reading of the pleadings of the parties as mentioned above, it will be clear, that the respondents have questioned the title of the appellants/ plaintiffs over the land in question. Though no declaration is sought by the plaintiffs with regard to their title on land but while granting them the relief of partition and possession, the Court has to take into consideration the evidence and pleadings of the parties and then decide as to whether appellants/ plaintiffs are entitled to get the partition and possession of the land, which in fact amounts to decision as to their title. The plain reading of clause (xviii) of section 172(2) of the Revenue Act would show, that the jurisdiction of the Civil Court is ousted only when there is no dispute over title and the suit is for partition simplicitor. It may be relevant to reproduce the observation of learned Single Judge in the case of Deen Muhammad and 6 others v. Mehar Ali Khan and 2 others as under:-

"Now this being a case of rejecting a plaint, it will be noticed that in the plaint itself, no claim for partition of estate or holding was made. On the other hand, clause (xviii) provides for the bar of jurisdiction of civil' Court to operate only in a case where questions connected with or arising, out of proceedings for partition, not being a question as to title in the property of which partition is sought is raised. Accordingly, even if it be assumed that respondent No.1 had filed an application before the Deputy. Commissioner for partition and this could be taken into consideration for the purpose of the jurisdictional bar even though it involved going beyond the plaint, it cannot be disputed that in the facts and circumstances of the case, a question of title in the land of which partition was sought by the respondent No.l was involved, so that, even on this assumption, the jurisdiction of the civil Court was not barred under the aforesaid clause (xviii) of subsection (2) of section 172 of the Act. The Courts below, do not, however, appear to have taken due notice of this exception provided in the clause. The Courts below were, therefore, wrong in holding that the jurisdiction of the civil Court was barred and acted in their jurisdiction with material irregularity by rejecting the plaint in the instant case. As to the various cases cited by the learned counsel for the respondents, none of them covers the facts of the instant case and are, therefore, not applicable."

18. The learned trial Judge has 'in fact decided all issues in favour of the appellants/ plaintiffs and has even calculated their shares in the property but has simply dismissed the suit on the ground, that it is barred under section 135 r/w section 172 of the Land Revenue Act, 1967. The relevant provisions of law have been reproduced above. They specifically excluded jurisdiction of Civil Court only when there is no dispute of title involved. After reading the evidence adduced by parties, the pleadings in the trial Court and grounds raised in memo of objection filed by respondent No.l, there will be no doubt that there is dispute as to the title of the plaintiffs with regard to the land in question on the grounds that their claim was barred by res judicata and by limitation as the respondent No.l claims to have acquired right over land by adverse possession. The questions of res judicata, adverse possession, limitation and even of mesne profits is beyond the scope of the powers of the Revenue Court. By dismissing the suit the trial Judge has left appellants with no other remedy available as these questions can be decided only by a Civil Court. This aspect of the matter does not appear to have been taken into consideration by the learned trial Court:

I, therefore, partly allow this appeal, set aside the impugned judgment and decree with costs the suit of the appellants/ plaintiffs for partition and possession of the immovable property shown in pars. 4 of the plaint only to the extent of appellants' shares as determined by the learned trial Judge. The suit of the appellants/plaintiffs for permanent injunction restraining the tenants /respondents from interfering with the possession of the said land of the plaintiffs is also decreed.

The appellants/ plaintiffs also claim mesne profits. The jurisdiction of Civil Court for awarding mesne profits is not barred by any provisions of the Revenue Act. The respondents do not allege to have paid any mesne profits, because the respondent No.l claims to have acquired right of ownership by adverse possession. In the plaint the appellants averred, that they have not received mesne profits since four years prior to the institution of the suit. However, they cannot claim mesne profits for more than three years, prior to the institution of the suit. The suit of the plaintiffs for mesne profits from the land mentioned in para 4 of plaint, from three years prior to institution of the suit is decreed by way of preliminary decree.

The appeal .was allowed by a short order, dated 9-10-1986, and the above are the reasons in support of the said order.

A. A./H-15/ K Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.