In The Lahore High Court Lahore: Judgment Sheet

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Stereo. H C J Form HCJDA 38.

Judgment Sheet
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT.

C. R No. 2191/2012.
Muhammad Ashraf
Versus
Mst. Najma Begum alias Najma Sultana, etc

JUDGMENT

Date of Hearin Date of hearing 14.01.2021 .

Petitioner by: Malik Noor Muhammad Awan, Anwaar Hussain


Janjua and Mohsin Hanif, Advocates .
Respondents by: Rana Nasrullah Khan and Zubair Ahmad Virak
Advocates for respondents No.1 to 4.
Mr. Ihsan Ahmad Bhindar, Advocate for respondent
No.6.

Ch. Muhammad Masood Jahangir, J.-In fact, late Inayat

Ullah, predecessor-in-interest of the parties had contracted two marriages

and three daughters/plaintiffs were born from one wife, whereas out of

other wedlock, son Muhammad Asharf, present petitioner was born.

Undisputedly, Inayat Ullah, ascendant was owner of subject properties,

who died on 13.01.1981. The step sisters of petitioner in 1997 instituted

suit for separation of their respective shares in the suit properties left by

their father through partition. Their step brother/petitioner contested the

same asserting that it was orally gifted to him by Inayat Ullah (father of

the parties), who subsequently also executed document of

acknowledgement dated 18.12.1980 and that he had invested huge

amount for construction/renovation of subject properties. It is a hard fact

that the document (Ex:D1) scribed on a plain paper executed for

acknowledgement of oral gift was the basic foundation of defence of

petitioner, which having entailed future obligation could only be proved

as per yardstick laid down in Article 79 of the Qanoon-e-Shahadat Order,

1984, but despite availability, required number of witnesses for its proof
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C.R. No.2191 of 2012.

were not produced on behalf of petitioner/beneficiary, whereas, on the

other hand, by tendering copy of record of rights (Ex:P6), respondents/

plaintiffs fully established their shares in the joint properties. Thus,

preliminary decree was granted in their favour by the learned Trial Court

on 07.03.2011, which was further maintained by the learned Appellate

Court below through judgment dated 07.06.2012 and since then, petition

in hand is pending.

2. Today, Malik Noor Muhammad Awan, learned counsel for

petitioner being candid admitted that his client could not prove the

alleged transaction of oral gift as well as document (Ex:D1) scribed in this

regard, however, he emphasized that firstly improvements made by his

client were not considered by the learned two Courts below and secondly

Inayat Ullah had also left another property, but despite admission of said

fact by respondents/plaintiffs, the same was not considered, whereas law

is clear on the point that suit for partial partition is not maintainable.

3. On the other hand, Rana Nasrullah Khan, Advocate of rival party/

respondents argued that once it is admitted that there was no gift in

favour of present petitioner, then preliminary decree, whereby only shares

of parties were to be determined was perfectly passed. He further

submitted that plea with regard to improvements/expenditures, if any, is

yet to be determined at the time of passing of final decree. He emphasized

as well that third property is of agricultural nature and learned Civil

Court lacked jurisdiction to partition the same, rather such remedy could

be availed before the Revenue Hierarchy, therefore, for said reasons

neither any objection qua non-maintainability of suit with regard to partial

partition was raised before the learned two Courts below nor such issue

was pressed, thus no objection in this behalf could be raised for the first

time before this Court.


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C.R. No.2191 of 2012.

4. Arguments heard. Record perused.

5. Once it is admitted on behalf of learned counsel for petitioner that

alleged gift pleaded by his client was not proved, the Courts below

committed nothing wrong to determine the shares of the parties through

the impugned preliminary decree, which in this behalf now could not be

disputed. There is no cavil that preliminary decree is only meant for

determination of shares of the respective parties in common property,

whereas remaining questions could be raised/agitated and culminated at

the time of final conclusion of such suit. Thus, till this time, no material

irregularity or illegality was committed by the learned Courts below in

ignoring the other stance of petitioner that he had incurred heavy

amounts for construction/renovation of properties. If there would be any

evidence in this regard, then learned Trial Court before whom suit is still

pending will decide the same on its basis besides keeping in mind

continuous use of properties by the present petitioner alone.

6. As far as argument of Malik Noor Muhammad Awan, ASC that suit

for partial partition was not maintainable is concerned, suffice it to say

that this specific objection was never raised through written statement or

even pressed before the learned Courts below despite that the lis remained

pending there for almost one and half decades. It is well settled principle

of law that if a party does not claim some specific issue, then the plea, if

any, stands abandoned. In this regard reference may be made to the case

of “Atta Hussain Khan Vs. Muhammad Siddique Khan and others, (1979

SCMR 630). The proposition is established that, if an issue is not pressed

before the learned Courts below where trial & appeal proceeded, then the

objection to that effect cannot be raised at revisional stage. See “Kaura and

others Vs. Allah Ditta and others” (2000 CLC 1018). Moreover, to the effect of

under discussion objection the petitioner (DW1) neither deposed a single


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C.R. No.2191 of 2012.

word nor brought any document to the extent of any other joint property.

In addition thereto, it is admitted fact that remaining property not

included in the suit in hand is of agricultural nature and for partition

thereof, the remedy solely lies with the Revenue Hierarchy, whereas

learned Civil Court lacks jurisdiction in this behalf. Reliance can be placed

upon the judgments reported as ”Muqadar and others Vs. Mst. Roshan and

others” (2008 CLC 43), “Qamar Sultan and others Vs. Mst. Bibi Sufaidan and

others” (2012 SCMR 695) and “Muhammad Ayaz and others Vs. Malik Zareef

Khan and others”(PLD 2016 Peshawar 8).

7 For the foregoing reasons, learned Courts below were perfect in

passing the unanimous preliminary decree, which calls for no interference

by this Court and civil revision in hand having no merit is dismissed with

costs throughout.

(Ch. Muhammad Masood Jahangir)


Judge

Approved for reporting.

Judge
*A.H.Qamar*

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