1990 PLP 1306 (CLC)

This Civil Revision arises from the judgment/decree dated the 16th of February, 1987, of the learned Additional District Judge, Lahore, whereby he accepted the appeal, rejected the plaint under Order VII, Rule 11, C.P.C. and directed the plaintiff to approach the Revenue Court for partition of the land in dispute. The land in question measuring 25 Kanals 10 Marlas was stated to have been given by the Central Government to Nawab Din deceased who left behind the plaintiff and defendant No.l as da‑fihters with their mother Mst. Fatima Bibi. The latter two allegedly appointed defendant No.2 as their attorney who sold there from specific Khasra Numbers measuring 12 Kanals 10 Marlas to defendant No.3, who in turn sold it further to defendants Nos.4 and

5. Since they had inherited as co‑sharers from the same propositus, the petitioner‑plaintiff felt aggrieved of those sales, in that a specific Khasra Number or for that matter a plot could not have been sold by a co‑sharer without partition Likewise, she was further aggrieved of a sale of a specific area made by her mother and sister in, favour of defendant No.6. She challenged those sales in the present suit to be ineffective against her interest, especially stating that the power of attorney in favour of defendant No.2 was fake, forged, based upon misrepresentation and concealment of facts, so that the attorney had no authority to pass on title on behalf of defendant No.l and her mother, to defendant No.3 and so on. She made a prayer for partition of the entire joint holding by declaring that all those alienations were of no effect against her interest in every inch of the joint property as co‑owner.

3. Respondents Nos.l, 6 and 7 were proceeded against ex parte whereas respondents Nos. 2 to 5 contested the suit by making an application under Order VII, Rule 11, C.P.C. praying that since the subject‑matter thereof was agricultural land, the Civil Court had no authority to entertain it for its partition and that the plaint may be rejected. They further pleaded that M.L.R. 64 was also attracted, in that the land sought to be partitioned being less than a subsistence holding was impartible.

4. In the meantime the petitioner prayed for temporary injunction which the trial Court granted holding that the objection to the maintainability of the suit shall be decided in due course after recording evidence. The respondents preferred an appeal primarily against the temporary injunction. The lower appellate Court accepted the same, meaning thereby that the temporary injunction was set aside, hut additionally it rejected the plaint also.

5. Reliance was placed on Chowmuhani College and another v. M.D. Ismail Hossain and others (1971 D.L.C. 640) as also Order XLI, rule 33 read with Order XLIII, rule 2, C.P.C. to claim that it was open to the appellate Court to reject the plaint as a similar order ought to have been passed by the trial Court. I am afraid, the rule enunciated by this Court in Shahdev v. Lehri Khan and others (P L D 1983 Lahore 46) seems to be more akin to the facts of the present case. The trial Court decided the limited question of temporary injunction, which, of course, Could he assailed in an appeal. Conversely it deferred decision on the objection as to the maintainability of the Suit to a further date. This part of the order of the trial Court obviously could not be assailed in appeal as it neither accepted the objection nor turned it down. The appellate Court evidently had enough power to the pass any order that the trial Court ought to have passed, but it essentially related only to the matter which was decided upon by the trial Court. It cannot be extended to cover those aspects which have been left for decision to a future date. The law insists that there should be a decision in the first instance by the trial Court law he that when the Court addressed itself to the objection, it might have I accepted the respondents' contention and rejected the plaint. In fact the law does not intend to pre‑empt the powers of the trial Court at a higher level and there take the opposite party by a surprise. This is the genesis kept in view in the Shahdev's case and there was no reasons to differ with it. The order which ought to have been passed in terms of rule 33 of Order XLI, C.P.C. would be deemed to be relating to the subject‑matter over which the trial Court expresses its opinion, and not to those questions which might be considered in due course.

6. As a result the revision petition is allowed, the impugned order is set aside and the case is remanded back to the learned District Judge, Lahore, fo r redecision of the limited question of the temporary injunction in complete isolation of the contention whether the plaint merited rejection. The latter question has to be decided first by the trial Court. Parties shall appear before the learned District Judge, Lahore on 16‑12‑1989. It would be open to him to decide it either himself or entrust it to any Additional District Judge. H.B.T./K‑244/L Case remanded