2006 PLP 2440 (YLR)

JAWWAD S. KHAWAJA, J.

The L.Rs. of Sadiq Ali deceased (respondent No.1) were ordered to be served. The process serving agency has reported that service has been effected. None, however, has appeared on behalf of the said L.Rs. despite service. They are, therefore, proceeded against ex parte.

2. The respondents Nos.2 and 3 have also been served, but none has appeared on their behalf despite service. They are also, therefore, proceeded against ex parte.

3. Respondents Nos.4 and 5 have already been proceeded against ex parte vide order dated 2-6-2005.

4. The Province, impleaded through respondents Nos.6, 7 and 8, is represented.

5. The two petitioners, namely, Ghulam Haider and his wife Mst. Munni impuged the concurrent decrees of the learned trial Court dated 18-1-1996 and of the learned appellate Court dated 11-10-2000, whereby a declaratory suit filed by the respondents/plaintiffs was partially decreed.

6. The property, which is subject-matter of the present dispute is agricultural land measuring 93 Kanals and 11 Marlas situated in Mauza Rambree, Tehsil Shakargarh. The parties are refugees from J and K. The suit-land was allotted to the family, whose head was Ibrahim. A Fard Taqseem was made out. However, it has not been formally exhibited on record. The respondents Nos.6 to 8, namely, the Province and its functionaries were arrayed as defendants Nos. 1 to 3 in the suit. In their written statement, the persons, mentioned in the Fard Taqseem, were set out and a copy Fard Taqseem itself was filed with the written statement.

7. Both parties are in agreement that the suit-land was actually allotted by way of Fard Taqseem. Their dispute, however, is as to the persons who were comprised in the family headed by Ibrahim. According to the petitioners, Mst. Munni (petitioner No.2), who is the wife of Ghulam Haider, was one of the members of the family. This fact is disputed by the respondents/ plaintiffs.

8. On the other hand, it is the case of the petitioners/defendants that Mst. Nasim Bibi daughter of Ibrahim (respondent No.2), Mst. Nooran Bibi sister of Ibrahim (respondent No.4) and Mst. Rani another sister of Ibrahim (respondent No.5) were not members of the family. Both Courts below have held that Mst. Nooran Bibi sister of Ibrahim (respondent No.4) was a member of the family, but Mst. Munni (petitioner No.2), Mst. Nasim Bibi (respondent No.2) and Mst. Rani (respondent No.5) were not members of the family.

9. The petitioners contend that although the findings of the two Courts below are concurrent they have not taken into account the Fard Taqseem, which was filed along with the written statement of the Province. It is also submitted that the petitioners in their appeal before the learned appellate Court had filed an application praying that the Fard Taqseem be formally exhibited on record. The learned Appellate Court, however, did not decide the said application while dismissing the appeal filed by the petitioners.

10. The contention of the petitioners that they were members of the family is supported by the written statement submitted on behalf of the Province. The appellate Court itself could have taken this circumstance into account and should have done so, particularly when the Fard Taqseem had been produced from the custody of the functionary responsible for maintaining the record. The failure of the learned appellate Court to do so has resulted in a failure to exercise jurisdiction vested in the said Court.

11. Considering the above circum stances, I am not in any doubt that the Fard Taqseem filed by the Province with its written statement was the authentic document setting out the names of the members of the family. None has appeared on behalf of the private respondents to dispute the contents of the aforesaid Fard Taqseem. Only the Province has chosen to be represented and it supports the contents of the Fard Taqseem filed by it.

12. In the above circumstances, the concurrent decrees of the learned trial Court dated 18-1-1996 and of the learned appellate Court dated 11-10-2000 are set aside. The petitioners are, therefore, granted the declaration of title prayed for by them. F.B./G-173/L Petition allowed.