2021 PLP 612 (CLC)

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 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.

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 v. 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 and appeal proceeded, then the objection to that effect cannot be raised at revisional stage. See "Kaura and others v. Allah Ditta and others" (2000 CLC 1018). Moreover, to the effect of under discussion objection the petitioner (DW1) neither deposed a single 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 v. Mst. Roshan and others" (2008 CLC 43), "Qamar Sultan and others v. Mst. Bibi Sufaidan and others" (2012 SCMR 695) and "Muhammad Ayaz and others v. 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. KMZ/M-18/L Revision dismissed.