Partition suit dismissed due to procedure mistakes.
بے شک! یہاں کیس کا ایک مختصر خلاصہ ہے:
### کیس کا خلاصہ
**جماعتیں شامل ہیں:**
- **درخواست گزار:** مبشر علی شاہ
- **جواب دہندگان:** محمد شریف اور دیگر
** پراپرٹی:**
- موضع حجرہ شاہ مقیم میں دو پارسل:
1. کھیوٹ نمبر 303/308: رہائشی زمین (7 کنال 3 مرلہ)
2. کھیوٹ نمبر 304/309: تجارتی زمین (2-کنال 2-مرلہ)
**پس منظر:**
- مبشر علی شاہ نے دونوں پارسلز میں حصوں کی ملکیت کا دعویٰ کرتے ہوئے تقسیم کا مقدمہ دائر کیا۔
**قانونی کارروائی:**
- ابتدائی مقدمہ 2013 میں خارج کر دیا گیا۔
- نئے پراپرٹی قوانین کی وجہ سے 2015 میں ریمانڈ کی اپیل۔
- ٹرائل کورٹ نے 2018 میں دوبارہ مقدمہ خارج کر دیا۔
- نظرثانی کی درخواست 2021 میں دائر کی گئی، 2024 میں خارج کر دی گئی۔
**برخاستگی کی وجوہات:**
- تمام شریک مالکان کو مدعا علیہ کے طور پر شامل کرنے میں ناکامی۔
- درخواست گزار کی طرف سے قبضے کی کمی۔
- ناکافی اور ناقابل اعتماد ثبوت پیش کیے گئے ہیں۔
- درخواست گزار نے ذاتی طور پر گواہی نہیں دی۔
- نئے پراپرٹی قوانین کے تحت قانونی طریقہ کار کی عدم تعمیل۔
**نتیجہ:**
- لاہور ہائی کورٹ نے ٹھوس شواہد کی کمی اور طریقہ کار کی غلطیوں کی وجہ سے نچلی عدالتوں کے فیصلوں کو برقرار رکھا۔
- جائیداد کی تقسیم کے لیے درخواست گزار کے دعوے خارج کر دیے گئے۔
یہ مقدمہ جائیداد کے تنازعات میں قانونی تعمیل اور ٹھوس شواہد کی اہمیت کو اجاگر کرتا ہے۔
موضع حجرہ شاہ مقیم میں رہائشی اور کمرشل اراضی کی تقسیم کے لیے مبشر علی شاہ کی درخواست کو لاہور ہائی کورٹ نے پنجاب پارٹیشن آف ایمو ایبل پراپرٹی ایکٹ 2012 کے تحت طریقہ کار کی غلطیوں، خاطر خواہ شواہد کی کمی اور قانونی تقاضوں کی عدم کی بنا پر خارج کر دیا۔ .
Stereo. HCJDA 38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Civil Revision No.58370 of 2021
Mubashar Ali Shah
VERSUS
Muhammad Sharif and others
JUDGMENT
Date of Hearing: 13.05.2024
Petitioner(s):
M/s Manzoor Hussain Dogar, Imran
A. Mian and Haroon Dogar,
Advocates
Respondent(s):
Mian Qamar Ul Islam and Janaan
Gull, Advocates for respondents
No.1 to 5, 7, 8(A) to 8(G), 10 to 13-
B1 to 13-B6, 13-C to 13-F, 13-H,
13-J, 13-K, 14 to 19, 21-A to 21-E,
22-A to 22-G, 24, 25 and 39
Ex parte against respondents No.9-
A, 9-B(i), 9-B(iii), 9-C, 13-G, 20, 28
to 37 vide order dated 21.11.2022
SHAHID BILAL HASSAN-J: Facts in concision are
as such that Mubashar Ali Shah, the petitioner,
instituted a suit for partition of the land falling in
Khewat No.303/308, Khasra Nos.2/25/86 and 197/1
measuring 7-Kanals 3-Marlas (Residential) and Khewat
No.304/309 comprising Khasra Nos.5/3/98, 4/1,
measuring 2-Kanals 2-Marlas (Commercial), situated in
Mauza Hujra Shah Muqeem, as per Register Haqdaran
Zameen for the year 2002-03. It was asserted that the
C.R.No.58370 of 2021
2
petitioner/plaintiff has his share measuring 04-Kanals
01-Marla out of 7-Kanals 3-Marlas in the first
mentioned Khewat No.303/308, while he is owner to
the extent of 01-Kanals 04-Marlas in the second
Khewat No.304/309 out of 02-Kanals 02-Marlas,
therefore, the partition decree may be passed in his
favour. The suit was contested by the defendants No.1
to 5, 7, 8-A to 8-G, 10 to 12, 13-A to 13-K, 14 to 19,
21, 22, 24, 25 and 39 by submitting a joint written
statement whereas the defendant No.23 filed a separate
written statement; defendants No.25-A to 25-I
submitted separate written statement and resisted the
suit. The defendants No.6, 9, 13-G, 13-I and 20 were
proceeded against ex parte on 23.01.2008. The
divergence in pleadings of the parties was summed up
into issues and evidence of the parties in pro and contra
was recorded. The suit was dismissed vide judgment
and decree dated 06.03.2013.
The petitioner/plaintiff preferred an appeal,
which was accepted on 31.08.2015 and case was
ordered to be remanded for decision afresh in view of
promulgation of Punjab Partition of Immovable
Property Act, 2012 as the same had overriding effect.
A revision petition bearing No.2034 of 2015 was
filed before this Court, which was decided on
C.R.No.58370 of 2021
3
08.05.0217 on the statements of the learned counsel for
the parties and matter was remanded to the learned trial
Court for decision afresh.
The learned trial Court without taking steps
afresh in accordance with the provisions of the Punjab
Partition of Immovable Property Act, 2012 proceeded
to fix the case for final arguments and vide impugned
judgment and decree dated 05.03.2018 dismissed the
suit of the petitioner. The petitioner being aggrieved
preferred an appeal but the same was also dismissed
vide impugned judgment and decree dated 10.07.2021
by the learned appellate Court; hence, the instant
revision petition.
2.
Heard.
3.
Record goes to divulge that the revision
petition bearing No.2034 of 2015, filed against
judgments and decrees dated 31.08.2015 and
06.03.2013, was allowed with concurrence of the
learned counsel for the parties and case was remanded
to the learned trial Court with the direction to decide the
same afresh strictly in accordance with law by
providing fair opportunity of hearing to all the parties.
Post remand, the learned counsel for the parties
submitted and conceded before the learned trial Court
that they have no objection if the suit is decided in
C.R.No.58370 of 2021
4
accordance with provisions of the Punjab Partition of
Immovable Property Act, 2012 and they did not want to
lead further evidence and relied upon the already
recorded evidence. When the position was as such, the
learned trial Court after hearing arguments of the
learned counsel for the parties proceeded with the
matter and passed the impugned judgment and decree.
Section 4 of the Act, 2012 ibid provides that, ‘an owner
of immovable property may file a suit for partition of
the property, giving details of the property, citing all
other co-owners as defendants and attaching all the
relevant documents in his reach or possession.’
However, the petitioner/plaintiff did not implead all the
co-owners in the suit, therefore, the suit was not
maintainable and competent. Moreover, the possession
also did not remain with the petitioner as has been
admitted by P.W.1. Passing of preliminary decree in
partition suit under Punjab Partition of Immovable
Property Act, 2012 is not provided; therefore, without
claiming mesne profit under the Act, the suit was not
competent. Furthermore, the deposition of P.W.1 was
based on hearsay and this witness admitted that father
of the petitioner sold out 105-Kanals out of his
ownership and only 01-Kanals land is left, which means
the claim of the petitioner in the suit as to 05-Kanals
C.R.No.58370 of 2021
5
05-Marlas is not established rather the same has been
negated by the P.W.1. Non-appearance of the petitioner
himself in the witness box and making deposition on
oath also goes against him. In judgment reported as
Mrs. Zakia Hussain and another v. Syed Farooq
Hussain (PLD 2020 Supreme Court 401) it has been
candidly held by Supreme Court of Pakistan that:-
‘Initially, it is the party itself to depose
about the first hand and direct evidence of
material facts of the transaction or the
dispute and its attorney having no such
information cannot be termed as a
competent witness within the meaning of
Order III, Rules 1 and 2 of C.P.C. Yes!
The attorney can step-in as a witness if he
possess the first hand and direct
information of the material facts of the
case or the party had acted through the
attorney from the very inception till the
accrual of cause of action. Deposition of
such an attorney under the law would be
as good as that of the principal itself. Nonappearance of the party as a witness in
such a situation would not be fatal. If facts
and circumstances of the case reflect that a
party intentionally did not appear before
the court to depose in person just to avoid
the test of cross examination or with an
intention to suppress some material facts
from the court, then it will be open for the
court to presume adversely against said
C.R.No.58370 of 2021
6
party as provided in Article 129(g) of
Qanun-e-Shahadat Order 1984 (QSO,
1984).’
Evidence of the P.W.2 is also based on hearsay, which
has also rightly been disbelieved by the learned Courts
below. Property of the D.W.1 is situated in different
Khewat as is evident from the record that he purchased
the land measuring 1 ½ marlas from Khewat No.264,
whereas the claim of the petitioner is with regards to
Khewat Nos.308, 309 and 311, so the same has no
nexus with the disputed property; therefore, it can
safely be concluded that the petitioner could not lead
confidence inspiring and convincing evidence in order
to substantiate his claim.
4.
Pursuant to the above, the learned Courts
below have rightly appreciated and evaluated evidence
of the parties and have reached to a just conclusion,
concurrently, that the petitioners have failed to prove
their case by leading cogent, confidence inspiring and
trustworthy evidence. As such, the concurrent findings
on record cannot be disturbed in exercise of revisional
jurisdiction under section 115 of Code of Civil
Procedure, 1908. Reliance is placed on judgments
reported as Mst. Zaitoon Begum v. Nazar Hussain and
another (2014 SCMR 1469), CANTONMENT BOARD
through Executive Officer, Cantt. Board Rawalpindi v.
C.R.No.58370 of 2021
7
IKHLAQ AHMED and others (2014 SCMR 161),
Muhammad Farid Khan v. Muhammad Ibrahim, etc.
(2017 SCMR 679), Muhammad Sarwar and others v.
Hashmal Khan and others (PLD 2022 Supreme Court
13) and Mst. Zarsheda v. Nobat Khan (PLD 2022
Supreme Court 21) wherein it has been held that :-
‘There is a difference between the
misreading, non-reading and
misappreciation of the evidence therefore,
the scope of the appellate and revisional
jurisdiction must not be confused and care
must be taken for interference in revisional
jurisdiction only in the cases in which the
order passed or a judgment rendered by a
subordinate Court is found perverse or
suffering from a jurisdictional error or the
defect of misreading or non-reading of
evidence and the conclusion drawn is
contrary to law. This court in the case of
Sultan Muhammad and another v.
Muhammad Qasim and others (2010
SCMR 1630) held that the concurrent
findings of three courts below on a
question of fact, if not based on misreading
or non-reading of evidence and not
suffering from any illegality or material
irregularity effecting the merits of the case
are not open to question at the revisional
stage.
C.R.No.58370 of 2021
8
Further in judgment reported as Salamat Ali and others
v. Muhammad Din and others (PLJ 2023 SC 8), it has
invariably been held that:-
‘Needless to mention that a revisional
Court cannot upset a finding of fact of the
Court(s) below unless that finding is the
result of misreading, non-reading, or
perverse or absurd appraisal of some
material evidence. The revisional Court
cannot substitute the finding of the
Court(s) below with its own merely for the
reason that it finds its own finding more
plausible than that of the Court(s) below.’
In this regard, safer reliance can also be placed on
judgment reported as Mst. Farzana Zia and others v.
Mst. Saadia Andaleeb (2024 SCMR 916) wherein it
has invariably been held that:-
‘13. We are sanguine that the High
Court has the powers to reevaluate the
concurrent findings of fact arrived at by
the lower courts in appropriate cases but
cannot upset such crystalized findings if
the same are based on relevant evidence or
without any misreading or non-reading of
evidence. The first appellate court also
expansively re-evaluated and re-examined
the entire evidence on record. If the facts
have been justly tried by two courts and
the same conclusion has been reached by
both the courts concurrently then it would
C.R.No.58370 of 2021
9
not be judicious to revisit it for drawing
some other conclusion or interpretation of
evidence in a second appeal under section
100 or under revisional jurisdiction under
section 115, C.P.C., because any such
attempt would also be against the doctrine
of finality……………………………… The
High Court cannot substitute its own
findings unless it is found that the
conclusion drawn by the lower courts were
flawed or deviant to the erroneous
proposition of law or caused serious
miscarriage of justice and must also avoid
independent re-assessment of the evidence
to supplant its own conclusion.’
5.
For the foregoing reasons, the revision
petition in hand comes to naught and the same stands
dismissed. No order as to the costs.
SHAHID BILAL HASSAN
Judge
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