1985 PLP 2613 (CLC)

MUHAMMAD AFZAL LONE, J.--In a suit for partition of the property in dispute, brought by Mst. Aziz Begum, respondent No. 1, against Mst. Sardar Begum and others, the learned trial Court, recorded the statement of the appellant, that of her attorney and the attorney for the defendants therein, on the basis whereof, by judgments and decree, dated 30-11-1981, held the property as indivisible, fixed the value of her 1/6th share, at Rs.66,666.68 and directed the defendants to pay her the same. The judgment and decree of the learned trial Court are under challenge in this R.F.A. preferred by the defendants.

2. We have heard the learned counsel for the parties and examined the record. From its perusal, we find, that as already observed in our order dated 22-12-1984, the proceedings conducted and the judgment and decree passed by the learned trial Court, suffer from the following illegalities: (i) In para. 2 of their written statement, respondents Nos. 1, and 4 to 13 raised a specific plea that the transfer price of the house in dispute, was deposited with the Settlement Department, by appellant No. 11 and two others, as Muhammad Din deceased, the father of respondent No. 1 and the transferee of the house is dispute, had agreed to alienate the same in their favour, after the issuance of the Y.T.D. but no issue reflecting this controversy has been framed. (ii) For fixing the market price of the house at Rs.4,00,000 the learned trial Court, relied upon the statement of one Ghulam Mustafa who appeared as attorney for respondent No. 1 but there is no deed of power-of-attorney, on the record, executed in his favour, by her. (iii) In the plaint, the appellants Nos. 7 and 8, namely, Razia Begum, alias Rani and Saleema alias Goga, have been shown as minors. There is an application dated 22-2-1979 of Mst. Aziz Begum respondent No. 1, on the trial Court's file, for appointment of Guardian ad litem for the two minors, but it does not appear to have been disposed of. Furthermore, the learned trial Court, did not record any order in terms of Order XXXII, rule 7, C.P.C., granting leave, for a compromise, in respect of the minors. (iv) There are two deeds of power-of-attorney on the trial Court's file executed by two sets of the defendants. Under one deed dated 15-12-1980. Amanat Ali appellant No. 3, and others appointed one Muhammad Saleern, as their attorney. Under the second deed dated 23-11-1980, one Sardar Muhammad has been appointed as attorney by Muhammad Boota respondent No. 4 and others. The proceedings dated 25-10-1981, demonstrate that statement of only one attorney was recorded who put his thumb mark thereon. He admitted that the market value of the house was Rs.4,00,

000. Obviously, the other attorney, was, not before the Court. Seemingly, the defendants not represented by the attorney who made the statement, were not bound by his aforesaid admission. (v) There is nothing on the record to suggest that after finding that the property is not capable of partition, why the learned trial Court did not proceed in accordance with the provisions of sections 2 and 3 of the Partition Act. When faced with these infirmities, with which the proceedings of the learned Court below, are, replete, the respondents' learned counsel, found it difficult to defend the impugned judgment and decree. Accordingly, this appeal is accepted, the judgment and decree of the learned trial Court are set aside and the case is remanded to it for its decision afresh in accordance with law. The parties are left to bear their own costs. M.Y.H.??????????????????????????????????????????????????????????????????????????????????????????????? Case remanded.