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Second Appeal No. 162 of 1977, decided on 12th February,1986.

‑‑‑S. 6(c) [as amended by Mussalman Wakf (Sind Amendment) Act (XVIII of 1935)1‑‑Civil Procedure Code (V of 1908), S. 100 & 0. XX, R. 18‑‑Partition suit‑‑Status of property, whether Wakf or privately owned‑‑Determination of‑‑Concurrent finding of Courts below‑‑Effect in second appeal‑‑Order based on documentary evidence in enquiry under S.6(c) of Mussalman Wakf Act, 1935 and order of City Survey Officer showed that disputed properties were not Wakf properties, but were privately owned and as such were inherited by heirs of original owner through succession‑‑Concurrent findings of two Courts below holding such properties as privately owned and not as Wakf, neither were based on any misreading of evidence nor upon perverse appreciation of evidence on record‑‑Such findings, held, could not be challenged in second appeal.

‑‑‑S. 11‑‑Res judicata, plea of‑‑Defendants in partition suit neither raised any objection in written statement about existence of any earlier decree of partition in respect of such property nor led any evidence before Trial Court to show that parties and subject‑matter of earlier suit were same‑‑Defendants also failing to show that decree passed in earlier suit was relating to partition of properties involved in present suit‑‑ Declaratory decree in earlier suit merely declaring extent of ownership of parties, held, could not affect maintainability of suit by other co‑accused in which prayer was made for dividing property ,by meets and bound.

Pir Syed Abdul Jabbar v . Pir Syed Ahmed Shah A I R 1946 Sind 158 ref.

Jhamat Jethanand for Appellants.

I.I. Suleman for Respondents Nos. 1 to 3.

Suleman Habibullah for Respondents Nos. 8(c) to 8(m).

Date of hearing: 12th February, 1986.

This second appeal under section 100, C . P . C . is filed against the judgment and decree of learned IIIrd Additional District Judge, Sukkur, whereby he confirmed the decree of trial Court for partition and accounts and dismissed the appeal of the appellants. The following facts are not disputed by the parties.

2. Respondents 1 to 5 instituted Civil Suit No. 39 of 1969 before Civil Judge, Rohri for partition and accounts in respect of three properties bearing C.S. No. 3. Sukkur and C.S. Nos. 36/10 and 36/12, situated in Shikarpur. The trial Court after recording evidence of the parties came to the conclusion that in so far property bearing C . S . No‑3, Sukkur is concerned it is a Waqf property dedicated to charitable and religious purposes and as such the question of its partition between the parties does not arise. However, in respect of property bearing C.S. Nos. 36/10 and 36/12 situated in Shikarpur, the learned trial Court came to the conclusion that these properties were privately owned by Pir Ali Bux Shah from whom the parties inherited the same jointly. The suit was accordingly decreed by the trial Court for partition of properties situated in Shikarpur and as these properties were also found in possession of appellant, they were directed to render account in respect of the same. The appellants challenged the judgment and decree of the trial Court in appeal in which respondents 1 to 5‑filed cross‑objection challenging the findings of the trial Court in respect of property bearing C.S. No.3 at Sukkur. The learned first appellate Court maintained the decree of the trial Court in respect of C.S. Nos. 36/10 and 36/12 situated at Shikarpur and dismissed the cross‑objections filed by respondents 1 to 5 against the findings of the trial Court in respect of C.S. No.3 at Sukkur. The appellants have challenged the judgment and decree of the first appellate Court in this IInd appeal.

3. Learned counsel for the appellants has raised two‑fold contention before me. It is firstly contended that the judgment and decree of the two Courts below is based only on the extract from property register and the order of District Judge, Sukkur, dated 10‑4‑1943 passed in an enquiry under section 6(c) of the Musslman Waqf Act, 1935 which according to the learned counsel did not establish that the two properties at Shikarpur were privately owned properties of Pir Ali Bux Shah and as such their partition between the parties was wrong. It is next contended by the learned counsel that the suit instituted by respondents 1 to 5 was barred on the principles of res judicata as in the year 1955 a similar suit was instituted by some of the parties who are plaintiffs or respondents in this appeal claiming parties who are plaintiffs or respondents in this appeal claiming partition of these very properties before the Civil Judge at Hyderabad and that the suit was decreed and as such a subsequent suit on the same cause of action was not maintainable. After hearing the learned counsel for the parties at length I find that none of the above contentions have any merit. Before the trial Court, respondents 1 to 5 who were plaintiffs, in support of their contention that the above noted two properties at Shikarpur were privately owned properties of Pir Ali Bux Shah produced extracts from the property register. The extracts relating to property bearing C.S. Nos. 36/10 and 36/12 show that on 12‑12‑1933 Pir Shah Dino Shah son of Pir Ali Bux Shah inherited these properties by succession and a statement to that effect was recorded on 12‑12‑1933. The second entry in these extracts which is dated 15‑12‑1956 show that in pursuance of order of District Judge, Sukkur, dated 10‑4‑1943, and the order of the City Survey Officer, dated 23‑8‑1956 the land was mutated in favour of all the heirs of Pir Ali Bukhsh Shah and then the appellants' names were entered as heirs of Pir Bachal Shah. In remarks column which is relied by the appellants in support of their contention that these properties are 'Waqf' and not privately owned properties. The entries read as follows:‑

"Appertaining to No. 11 Masjid private as per District Judge, Sukkur order, dated 10‑4‑1943."

Learned counsel for the appellants contends that in view of the above entry‑ in the extract showing the properties as appertaining to C.S. yo. 11 Masjid these properties could not be declared or treated as private property. The contention of the learned counsel for the appellants is based on a misconception with regard to the above entry. The above-mentioned entry in remarks column of extracts was made according to the order of District Judge, dated 10‑4‑1943 which clearly held these two properties as privately owned properties of Pir Ali Bukhsh Shah. Prior to this entry, the entries, dated 12‑12‑1933 in the extracts clearly shows that Pir Shah Allah Dino Shah son of Pir Ali Bukhsh I Shah," inherited this property through succession and the mutation had taken place on the basis of the statement recorded on 12‑12‑1933. Therefore, the findings of the two Courts below holding the two l properties at Shikarpur as privately owned properties of Pir Ali Bukhsh .5hah is neither based on any misreading of evidence nor upon perverse 3ppreciatlor of evidence on record. On the contrary it is quite in accord with the evidence on record. Learned counsel for the appellants also contended that the order, dated 10‑4‑1943 passed by the District Judge, Sukkur holding these properties as private properties of Pir Ali Bukhsh Shah was not binding in the civil suit which related to determination of title of the parties, as the order passed by the learned District Judge Sukkur in 1943 was in relation to an enquiry under section 6(c) of the Musalman Waqf Act, 1935. This argument is also misconceived. A reading of the order, dated 10‑4‑1943 passed by the District Judge, Sukkur will bear out that during the course of enquiry in respect of property bearing C.S. Nos. 36/10 and 36/12, Shikarpur, a Sanad was produced before the learned District Judge, by Pir All Bakhsh Shah who is predecessor‑in‑interest of the present appellants which showed that the property was private property of Pir Ali Bukhsh Shah. It is further noted in the order of the learned District Judge. dated 10‑4‑1943 that the parties who were present before him and through whom the present parties claim admitted the facts mentioned in the order of learned District Judge, Sukkur, dated 10‑4‑1943. Apart from it learned counsel for the appellants himself relied on the copy of the judgment of the civil Court at Hyderabad in a civil suit instituted' in 1955 which shows that the above properties were held to be private properties. In view of the above overwhelming documentary evidence on record the Courts below rightly held the two properties situated in Shikarpur as the privately owned properties of Pir Ali Bukhsh Shah.

4. The next contention of the learned counsel for the appellants is that the resent suit is barred on the principle of res judicata as in the earlier suit which was brought by the defendants 4 to 7 a decree for partition was passed and, therefore, a second suit for partition at the instance of other co‑owners was not maintainable on the principle of res judicata. In support of his contention the learned counsel relied on the case of Pir Syed Abdul Jabbar v. Pir Syed Ahmed Shah A I ft 1946 Sind 158. No doubt the case cited by the learned counsel fully supports his contention but it is distinguishable on facts. In the present case firstly the appellants did not raise any objection in their written statement about the existence of any earlier decree of partition in respect of the same properties. No evidence was led by the present appellants before .the trial Court to show that the parties and the subject‑matter of the earlier suit was same and that the decree passed by the Court in the suit instituted in 1955 related to partition of the above properties. The decree in the suit instituted in the year 1955 was produced in evidence by the plaintiffs/ respondents 1 to 5 and after going through the decree it cannot be said that the decree related ax to partition of these properties. Learned counsel for the appellants admits that at no stage of proceedings neither the judgment nor the copies of pleadings in that suit were produced before the Court. After reading the decree which is produced as Exh.20/F the only conclusion which can be arrived at is that a decree was passed in that case in favour of defendants 1 to 5 declaring them to be the owners to the extent of only 2.4 anna in the aforesaid properties. This declaratory decree passed by the Court in 1955 could not effect the maintainability of suit by the other co‑owners in which a prayer was made for dividing the property by meets and bounds.

5. As a result of the above discussion this appeal fails. However, in the circumstances of the case I will make no order as to costs.

H.B.T./5019/K Appeal dismissed

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