2018 PLP 137 (YLRN)

MUHAMMAD ALAM, J.

Order dated 22-10-2015 passed in C.F.A. No.19/2015 of the District Judge Astore as well as order dated 31-03-2015 passed in Civil Suit No.63/2010, 17/2014 of the Civil Judge Astore, have been challenged through this civil revision petition.

2. Petitioner filed the suit in the trial court seeking declaration with possession of 16 kanals of suit land. In the plaint of the suit, petitioner/plaintiff averred that he is entitled to the possession of suit land as son of Mr. Peer Mohammad Baba. Petitioner/plaintiff has further averred in the plaint that he and defendants Nos. 2 to 5 are sons and daughters of said Peer Mohammad Baba, while the suit property is share of petitioner/plaintiff in the suit land. Petitioner/plaintiff has every right to inherit his share in the landed properties of his said father. Defendant No.1 contested the suit and filed written statement on 29-06-2011, wherein, specifically averred that father of the parties conducted partition of his properties among his three sons in equal shares and handed over share of each to all, plaintiff and defendants Nos.1 and

2. Since then, petitioner/plaintiff and defendants Nos.1 and 2 are in possession of their shares.

3. I have heard learned counsel for parties and have gone through the file. Admitted state of affairs in the case in hand are very important and are playing very important role in coming to the correct conclusion of the case. For example, the contesting parties to the case are petitioner/plaintiff and respondent No.1/defendant No.1. Respondents Nos.2 to 5 are real brothers and sisters of the contesting parties. Some of the said respondents have favored petitioner. Respondent No.7/ defendant No.7, i.e., the Provincial Government for Gilgit-Baltistan, is contesting the suit up to a part of the suit land. It is not disputed that a part of suit land is government land in the light of revenue record but was admittedly in possession of Mr. Peer Mohammad Baba, father of the parties. Respondent No.7/defendant No.7 neither conducted any proceeding for ejectment of the father of the parties nor has so far conducted any proceeding against any of the parties instead of concurrent findings of the two courts below in favour of respondent No.7/defendant No.7 regarding the said part of suit land. Moreover, defendant No.1 has taken a very important plea in para No.1 of parawise written statement wherein has averred that father of the parties conducted partition of his landed properties in his life time and, since then, they are in possession of their respective shares. Yet another plea taken by respondent No.1/defendant No.1 is that father of the parties contested a suit for his expenses from his sons that entailed to a decision in favour of father of parties.

4. In my opinion, based on the above described admitted state of affairs, respondent No.7 has the title to that part of suit and regarding which concurrent findings of the two courts below have come, but in the light of admitted state of affairs, father of the parties remained in possession of the same, therefore, the same piece of land is subject of distribution/partition among all the legal heirs of deceased, Peer Mohammad Baba. In my opinion, the concept of inheriting in properties of the deceased runs against all kinds of properties that remained in practical appropriation of the deceased at the time of his death. Respondent No.7 is free to take ejectment proceedings at any time but compulsorily against all legal heirs of deceased Peer Mohammad Baba. Any kind of selective ejectment proceedings by the respondent No.7 will be a foul play and must be discouraged.

5. Second question for determination is that whether plea of respondent No.1/defendant No.1 taken in para No.1 of parawise written statement shifted burden of proof to the respondent No.1/defendant No.1. I have noted that learned trial court did not frame any issue on this very specific plea of the respondent No.1/defendant No.1. I, therefore, frame the following issue:- Whether father of parties divided/ partitioned his landed properties among his three sons and handed over possession thereof to them about thirty years ago? If so, its legal effects in the light of sharie laws of the sect that parties belonged to? Learned trial court is bound to give findings on the question of proof of the above issues and then its legal effects in the light of sharie laws of the sect that parties belonged to.

6. It is not disputed that defendants Nos.1 to 5 are the sons and daughters of Mr. Peer Mohammad Baba. Respondent No.2/defendant No.2 is admittedly an insane person, therefore; parties have no right of any kind of appropriation of his properties or share etc. until he is living. All the legacy of Mr. Peer Mohammad Baba is subject to partition/distribution among all the legal heirs of said deceased (Peer Mohammad Baba). A rough calculation shows that the landed properties of the deceased are subject to distribution into 9 (nine) shares, 2 shares for each of petitioner/plaintiff, respondent No.1/defendant No.1 and respondent No.2/defendant No.2, while one share each for the respondents Nos.3 to

5. So, petitioner/plaintiff has filed the suit for a wrongly calculated share, therefore, the trial court is to calculate shares of all legal heirs of deceased. In these circumstances, I frame another issue which goes as under:-- Whether landed properties of the father of parties are still subject to partition/distribution among his legal heirs? If so what share each of the legal heirs of deceased Peer Mohammad Baba is entitled to?

7. The third question for determination is; what are the effects of previous litigation between father of parties and petitioner/plaintiff? In my opinion, decisions in the previous litigation have no effects, whatsoever on this suit, as subject matter of the previous litigation was demand of the father of parties for his monthly expenses from petitioner/plaintiff.

8. In the case in hand, I have noted that learned two courts below have not applied their mind in strict accordance with the sharie laws, applied to the questions of partition of the landed properties of any person, among his legal heirs. For example, it is averred that father of the parties distributed/ conducted partition of his landed properties among his three sons, excluding the daughters, and we find no mention of any share of daughters or even excluding them from any share by their father in the said averment of written statement of respondent No.1/ defendant No.1 . The question for determination is whether sharie laws empower any father for neglecting his-daughters from their sharie shares or for arguments sake, if the averment is accepted as correct, the father of parties did so blindly acting upon any tradition prevailing in the area? Courts are supposed to enforce rule of law and in the case in hand, courts are bound to give their opinion that whether the said act of the father of parties is correct or incorrect in the light of sharie laws of the sect that parties belonged to. It is an admitted fact that the Constitution of Pakistan does not allow any kind of legislation contrary to sharie tenets. Obviously, all traditions or customs contrary to the sharie tenets must not only be discouraged but must be done away by the courts of law.

9. Besides above described material irregularities in the orders/judgments of the two courts below, I am passing this order on the consensus of the parties, who jointly requested for remanding the case back to the trial court for a thorough decision on the above noted sharie aspects of the case. The learned trial court has, while giving findings on each and every issue, just referred evidence of the parties without taking up the same for discussion. Likewise, the first appellate court has neither given its findings on each issue nor has given its findings on the basis of points for determination. So, the findings of the two courts below are contrary to the provisions of Order XX and Order XLI, C.P.C. I, therefore, set aside both the judgments/orders of the two courts below and remand the case to the trial court with direction to give its findings afresh on all issues as well as on issues framed above. Petition allowed accordingly. This file be consigned to record. ZC/54/GB Case remanded.