P (PLP)

3. Is it a suit for partial declaration and with what effect?

4. Is Court‑fee proper?

5. Is the suit not in proper form?

6. Relief. In deciding issue No. 1 reliance was placed by the trial Court on Jamala v. Muhammada (A. I. R. 1938 Lah. 2021, where a per son had instituted a suit in which he alleged that the entire estate left by his ancestor was joint, that no private partition had ever taken place, that he was entitled to a declaration to the effect that the land in question belonged to him and the co‑sharers jointly, and that he was entitled to have it partitioned. The suit was contested by the co‑sharers on the ground that plaintiff had no right to sue for the declaration prayed for on the ground that he never applied for partition to the revenue authorities, that he was not directed to bring a civil suit, that he was estopped from instituting the suit since lie had previously admitted that the land had already been partitioned. It was held in this case that the suit, being for a dec laration of title, was maintainable under section 117(1), Land Revenue Act. The plaintiff had claimed to be a joint owner of the entire property in snit: The contesting defendants had denied his title in the entire property and had stated that he was merely the owner of the fields that were in his possession and that those fields had fallen to his share at the time of a private partition that took place soon after the death of the parties predecessor‑in‑title. The title of the plaintiff to the fields which were in the possession of the contesting defendants had, therefore, been clearly denied and the suit was, therefore, for a declaration of title. A. I. R. 1932 Lahore 236 was relied on by the defendants but was distinguished by the trial Court on the ground that that was not a case of private par tition. The partition in that case had been effected by the Revenue Court and the objection taken by the plaintiff in the suit was that he had not been properly represented before the Revenue Court. As there was right of appeal and revision to the revenue authorities in This case, it was held to be inapplicable to the circumstances of the present suit. It was held that the defendants in the present suit were denying the title of the plaintiff to that portion of the land which was alleged to have fallen to their share and issue No. 1 was decided in favour of the plaintiff. Regarding issue No. 2 it was found from certificate P. 1 that a guardian of the plaintiff was appointed during his minority. Exhibit P. 2 showed that the plaintiff was born on 5th December 1925 and was under the age of 21 years when the private partition was effected by him on 25th May 1945. Exhibit P.3 showed that the guardian appointed by the court had died on the 15th January 1945. It was not disputed by anyone that a guardian of the minor having been appointed by Court the minor aid not attain the age of majori ty until 21 years. The partition was held to have been effected Y the plaintiff when he was not legally competent to do so and was, therefore, void and not binding upon the plaintiff: Regarding issue No. 3 it was held that even if the plaintiff had not included all the khasra numbers in the suit, it, was the plaintiff who would suffer because he would be able to claim joint owner ship in respect of only those kasra numbers which were specifically mentioned in the plaint. This did not invalidate the suit and the issue was decided accordingly. The Court‑fee required was held to have been duly paid and the suit was held to be in a proper form, with the result that it was decreed with costs. From this decree dated the 27th November 1946 the defendants filed an appeal and in the judgment of the Appellate Court, it is said that the only point argued in appeal, was whether the suit was merely to challenge the mode of‑ partition and, as such, was not cognizable by a Civil Court. The case relied upon by the trial Court in decreeing the suit of the plaintiff was sought to be disting uished in appeal on the ground that in that case the plaintiff had alleged that he was the joint owner of tile property 'in suit. The Appellate Court observed that the present suit was also for a declaration to the effect that "mudai araxi pail men mushtarka malik tva qabt hai". The finding of the trial Court was upheld in appeal and the present suit was held not to be merely to challenge the mode of partition but a title suit and, as such, cognizable by a Civil Court. The concluding portion of the judgment states that no other point was argued in appeal and the appeal was dismissed with costs. The defendants have now come up .in second appeal on the following grounds:‑

1. That the lower Appellate Court has erred in holding that the suit is cognizable by a Civil Court.

2. That the lower appellate Court has erred in not giving its own findings on the other issues decided by the original Court

3. That the lower Appellate Court's judgment and decree are against law and facts. The learned counsel for the appellant relies on section 158 clause (17), Punjab Land Revenue Act, which says that a Civil Court shall not exercise jurisdiction over any claim for partition of an estate holding or tenancy, or any question connected with or arising out of proceedings four partition; not being a question as to title in any of the property of which partition is sought. This does not take the appellant's case any further than, it was in the original Court where it was held that the plaintiff's claim did involve a question of title. This finding was concurred in by the first Court of appeal and I accept this concurrent finding was correct. The second point urged is that the lower Appellate Court should have given its own findings on all the issues decided by the trial Court I have no doubt that the Appellate Court would have done so if any of the points involved in those issues had been pressed in appeal. In Hans Ray v. Karam Chand (A I R 1933 Lahore 570) it wasp held that where a Judge mentions specifically certain points which, were argued before him and the judgment is silent on other points taken in the memorandum of appeal, it may be presumed that such points have been abandoned. In Muhammad Aslam v. Mehr Singh, etc.) (102 I C 841) the same view was taken and it was added, that the presumption of the unargued grounds of appeal having been abandoned was all the more necessary in the absence of an affidavit to the contrary by the counsel who appeared in the Appellate Court. It was further held in this case that the grounds of appeal abandoned in the lower appellate Court cannot be taken in second appeal. There is no affidavit of any counsel who appeared in the lower Appellate Court that the grounds of appeal not disposed of by the Appellate Court were in fact, not abandoned; and there is a clear statement in. the judgment of the Appellate Court that no point, other than, that of jurisdiction was urged in appeal. It frequently happens that many grounds, which have no force at, all, are, entered in the memorandum of appeal. If the appellant or his counsel realising the weakness of such grounds, abandons them the hearing of the appeal it is not, necessary for the Court to waste time in dealing with futilities." The grounds, other than that relating to jurisdiction, in the memo random of appeal filed in the lower Appellate Court are that the partition was binding on the plaintiff and that the suit was for partial declaration. So, far as the suit being for partial declaration is concerned, the matter was clinched by the trial Court with the finding that if, that is so it will be the plaintiff who will suffer and not the defendants. The effect of the partition on the plaintiff was also considered by the rower Appellate Court and it was held that the private partition was effected and subsequently affirmed on 25th May 1945 by mutation No. 2598 when the plaintiff, having been born on 5th December 1925, was below 21 years of age. A guardian of his person and property, the lower Appellate Court observed, was appointed on 15th November 1941 and the guardian died on 15th January 1945: There is no evidence that any other guardian was appointed and the case of the appellant is that the plaintiff acted on his own behalf in the matter of the partition long before he became a major. The respondents contention in the first Court of appeal was that even for a declaration that the partition effected by the plaintiff during minority was void recourse should have been had to a Revenue and not a Civil Court. This contention was repelled by the Court of appeal and it covered the second ground of appeal. In Sukhdeo Singh v. Mathra Singh (A I R 1933 Lahore 412), it was held by a Division Bench of this Court that by disputing the plaintiffs' title to a part of the lands held under a common title the defendants had in fact disputed the title of the plaintiffs to all the lands held jointly and a suit for declaration was competent. It was further held in this case that where jurisdiction is given to the Revenue Court, the jurisdiction of the ordinary Courts is not necessarily ousted and section 117, Punjab Land Revenue Act, does not expressly deprive the ordinary Courts of jurisdiction to decide a declaratory suit. For the reasons given above I see no force in this appeal and dismiss it with costs. A. H. Appeal dismissed.