P L D 1962 (VV (PLP)

WAHIDUDDIN AHMED, J.

This judgment will dispose of Second Appeals Nos. 1, 2, 3, 4, 5, 8, 9, 10, 11 and 14 of 1960 and Revision No. 17 of 1959, in which common questions of law and facts are involved. The ancestor of the parties in all the appeals is one Sardar Nawab Azad Khan, who died in the year 1906. He was survived by his three sons Sardar Nawab Nauroze Khan, Sardar Azam Khan and Sardar Amir Khan. The dispute between the parties in the above-mentioned appeals and revision is in respect of the landed property left by Sardar Nauroze Khan and Sardar Yakoob Khan. Sardar Azad Khan by a document dated the 31st of August 1883 settled most of his landed property on his three sons men tioned above. Sardar Nauroze Khan died in the year 1909 and was succeeded by his son Sardar Yakoob Khan as heir apparent. Sardar Yakoob Khan was, however, murdered by his uncle Sardar Amir Khan in the year 1911. The dispute arising out of the murder of Sardar Yakoob Khan was referred to the Shahi Jirga in the year 1912, who by an award delivered in the same year, gave all the property of Sardar Amir Khan inherited or obtained from his father Sardar Azad Khan, to the heirs of Sardar Yakoob Khan. On the death of Sardar Yakoob Khan, Nawab Khan Habibullah Khan succeeded him as heir apparent in the year 1911. The relationship of the parties is shown in the pedigree table reproduced below:

All the above-mentioned Sardars and Nawabs belong to an area known as Kharan in Baluchistan. This State came into existence in the year 1940. It merged with the Baluchistan States Union in the year 1952 and became part and parcel of the Baluchistan States Union. The Baluchistan States Union merged in the Province of West Pakistan in the year 1955 under the West Pakistan Establishment Act, 1955. The vast landed property left by Sardar Nauroze Khan and Sardar Yakoob Khan remained in the possession of Nawab Habibullah Khan, the Ruler of Kharan State. Bibi Lai Bibl, daughter of Sardar Nauroze Khan, the appellant in Appeal No. 1 of 1960, on the 8th of October 1953 filed a suit in the Court of the Deputy Commissioner, Kharan, against her nephew Nawab Habibullah Khan for partition of the movable and immovable property left by Sardar Nauroze Khan. This suit was dismissed on the 9th of August 1958 by the Kazi of Kharan on the ground that the claim made in the suit was vague. Bibi Lai Bibi filed an appeal against the judgment of the Kazi before the Majlis-i-Shura of Kharan. During the pendency of this appeal Sardar Habibullah Khan died on the 9th of October 1958. On his death his heirs were impleaded as parties to the appeal. On the 17th of February 1959 the Majlis-e-Shura remanded the case to the Kazi for decision on merits. The Kazi, after issuing notices to the parties, interested in the property left by Sardar Nauroze Khan, on the 18th of April 1959 passed a decree for the partition of the immovable property but dismissed the suit for the partition of the movable property. During the pendency of the above-mentioned suit, Mir Ibrahim Khan and Sarfaraz Khan sons of Mehrab Khan and grandsons of Sardar Nauroze Khan on the 2nd of April 1953 filed a suit for partition against Sardar Habibullah Khan in respect of the movable and immovable property left by Sardar Nauroze Khan. This suit also met the same fate as that of Bibi Lai Bibi. The Kazi in the first instance dismissed the suit on the ground that the claim was vague. The matter was taken before the Majlis-e-Shura and it was remanded again for decision on merits. The Kazi of Kharan in this case also passed a decree in favour of Mir Ibrahim Khan and his brother on the 18th of April 1959 for partition of the immovable property of Sardar Nauroze Khan. Two other suits were filed : one by Jam Mir Khan and Jam Changez Khan, sons of Shah Bibi and grandsons of Sardar Nauroze Khan on the 17th of November 1958 against Surdar Habibullah Khan for partition of the property left by Sardar Nauroze Khan ; and the other was filed by Aisha Bibi daughter of Sardar Nauroze Khan against Sardar Habibullah Klan in respect of Nauroze Khan's property on the 4th December 1958. On the 18th of April 1959 and 8th of April 1959 the Kazi passed decrees in the above-mentioned suits for partition of immovable property against the heirs of Sardar Habibullah Khan. The decrees passed by the Kazi, Kharan, against the heirs of Sardar Habibullah Khan were challenged by Mir Muhammad Tahir Khan on behalf of himself and his brothers and sisters namely, Mir Ali Ahmed Khan, Mir Ghous Bux Khan, Mir Balueh Khan, Bibi Mahal and Bibi, Rahm Bibi and mother Bibi Gulatoon in four appeals before the Majlis-e-Shura. Neither Nawab Mir Mustafa Khan, the present Nawab of Kharan, filed any appeal against the judgment of the Kazi nor did the other group represented by Mir Sher Ali Khan and his brother. Mir Tahir Khan and his group contended before the Majlis-e Shura that the property in dispute had nothing to do with Sardar Nauroze Khan and that it solely belonged to Sardar Habibullah Khan and the finding of the learned Kazi in the above mentioned four suits was not based on any evidence worth the name. They also contended that the property in dispute was in the possession of the "Mianji Kh3na" that is to say under the Management of the Receiver appointed by the State, and as long as the dispute between the heirs of Sardar Habibullah Khan was not finally decided, the Kazi had no jurisdiction to award any partition decree in favour of the plaintiffs in the above-mentioned suits. The Majlis-i-Shura by judgment dated the 7th of December 1959 upheld the contention of these appellants that the judgment of the Kazi is not based on sufficient evidence and remanded the case to him for deciding the dispute between the parties after recording their evidence in full. The finding of the Majlis-e-Shura in remanding the case to the Kazi is challenged by the above-mentioned plaintiffs in Appeals Nos. 1, 5, 8 and 11 of 1960. It will be noticed that the property in dispute in these appeals is alleged to have been left by Sardar Nauroze Khan. The appellants in these appeals contend that there was sufficient documentary and oral evidence before the Kazi and that the decree of the Kazi dated the t 8th of April 1959 is based on reliable evidence and could not be set aside. The second set of appeals namely, Appeals Nos. 2, 3, 4, 9, 10 and 14 of 1960 pertain to the property inherited by Sardar Yakoob Khan from Sardar Nauroze Khan and the property of Sardar Muhammad Amir Khan given by the Shahi Jirga in the year 1912 under an award as blood compensation or blood money to the heirs of Sardar Yakoob Khan. In respect of the property left by Sardar Yakoob Khan or given to the heirs of Sardar Yakoob Khan as blood money, six suits were filed by his heirs against Sardar Habibullah Khan. On the 4th of November 1952 Bibi Mah Bibi daughter of Sardar Yakoob Khan filed a suit for partition in respect of the property of Sardar Yakoob Khan against Sardar Habibullah Khan. This suit is the subject-matter of Second Appeal No. 4/1960. On the 2nd of April 1953 Mir Muhammad Rafiq son of Mir Durra Khan and grandson of Yakoob Khan filed another suit against Sardar Habibullah Khan in respect of Sardar Yakoob Khan's property. This suit is the subject-matter of Second Appeal No. 14/1960. Similarly, on the 10th of September 1953 Mir Shahbaz Khan son of Mir Yakoob Khan filed a suit for the partition of the property left or given to the heirs of Sardar Yakoob Khan against his brother Sardar Habibullah Khan. This suit is the subject-matter of Second Appeal No. 10/1960. On the 3rd of July 1958 Mst. Rabia BIN daughter of Sardar Yakoob Khan also filed a suit in respect of Sardar Yakoob Khan's property against Sardar Habibullah Khan. This is the subject-matter of Second Appeal No. 2/1960. Similarly, Mir Rahim Khan and Hamidullah Khan sons of Bibi Lal Bibi, daughter of Sardar Yakoob Khan, also filed a suit in respect of Sardar Yakoob Khan's property against Sardar Habibullah Khan. This is the subject-matter of Second Appeal No 9/1960. On the 5th of August 1958, Bibi Naz Jan daughter of Sardar Yakoob Khan also filed a suit against Sardar Habibullah Khan in respect of the property of Sardar Yakoob Khan. This is the subject-matter of Second Appeal No. 3/1960. These suits were forwarded by the Deputy Commissioner, Kharan, to the Kazi of Kharan for decision according to the Sharia Anwar. In these suits, however, the position is a little different. Out of the above-mentioned suits those filed in the years 1952 and 1953 the Kazi dismissed them in the first instance on the ground that the claim was vague. The plaintiff thereupon filed appeals against this judgment before the Majlis-i-Shura and as in other cases these suits were remanded by the Majlis-i-Shura for disposal on merits. These suits on remand were considered with the other suits and were finally decreed in favour of the plaintiffs on the 28th of April 1959. Mir Muhammad Tahir Khan on behalf of himself and his brothers, sisters and mother challenged the validity of the decree passed in the above-mentioned suits before the Majlis-e Shura on the ground that the decrees passed by the learned Kazi were not based on sufficient evidence and are liable to be set aside. They further contended that the property in dispute is under the management of the " Mianji Khana " namely, the Receiver, and as the dispute between the heirs of Sardar Habibullah Khan had been settled, the suits filed by the plaintiffs are liable to be dismissed. The plaintiffs also filed appeals before the Majlis-e-Shura in respect of the dis missal of their claim of movable property. The Majlis-e-Shura on consideration of the appeals and cross-appeals set aside the order of the learned Kazi, dated the 28th of April 1959 in all the above-mentioned matters on the ground that the Kazi's judgment was vague on the question of gifts. The appellants in the cross-appeals were contending that the property in dispute did not belong to Sardar Yakoob Khan but was the personal property of Sardar Habibullah Khan. According to the learned Majlis-i-Shura it was, therefore, incumbent on the Kazi to decide the disputed points after recording evidence. The Majlis-e-Shura finally held that the Kazi's decree was based on insufficient evidence. Accordingly the case was remanded for evidence and decision to the learned Kazi by judgment, dated the 7th of December 1959. All the plaintiffs in the above-mentioned suits have challenged the validity of the order of the Majlis-i-Shura in these appeals. They contend that the Majlis-i-Shura has erred in stating that there was no evidence on the record to support the Kazi's judgment It is alleged that there was weighty documentary evidence namely the settlement deed executed by the late Nawab Sir Azad Klan and attested by Sir Robert Sandeman of 1883 and other documentary evidence. They further allege that the respondents did not contest the plaintiff's' claim and wanted the suit to be dismissed merely on the ground that the dispute between the heirs of Sardar Habibullah Khan was not decided and the property in dispute was under the management of the "Mlanji Khana" and therefore the Majlis-e-Shura could not allow the appeals on these grounds. At this stage, before we consider the appeals on merits, it would be proper to dispose of some of the objections raised on behalf of Nawab Mir Mustafa Khan, the present Nawab of Kharan, under an application dated the 12th of October 1961. It Is alleged on behalf of Nawab Mir Mustafa Khan that the original suits in Appeals Nos. 1, 2, 3,. 4, 8, 9, 10 and 14 were instituted in the life-time of his late father Nawab Habibullah Khan. Suits in Appeals Nos. 5 and 11 were instituted after the life-time of his late father. His late father Nawab Habibullah Khan of Kharan did not attend the Kazi's Court because under section 86 of the Interim Constitution of Baluchistan States Union of 1952 approved by the Governor-General of Pakistan, no civil suit could be entertained against any Ruler in Kalat State. His father died on the 9th of October 1958. His name could not be substituted in place of his late father more than four months after the death of his father because under the Civil Procedure Code of Kalat there is no provision for impleading legal representatives of a deceased party to the suit. He further contends that as he was recognised as the Nawab of Kharan in succession to his late father Nawab Habibullah Khan Nausherwan by the President of Pakistan on the 25th of May 1.959 in accordance with the merger agreement of January 1955, and under the provisions of the Rulers (Recognition of Successors) Order No. 15 of 1960, and since the Pakistan Civil Procedure Code of 1908 has been extended to Kharan, the appellants were not entitled to file any appeal against him in any Court except with the consent of the Central Government as laid down in section 86 of the C. P. C. and Ordinance No. XXII of 1960 whereby the benefits of the aforesaid provisions of law have been extended to the Rulers of the acceding and merged States. It is further con tended on behalf of this respondent that the Government of Pakistan by its Order No. D-67-Sec-V/60 of 9-2-1960 has recog nised the property in dispute as the personal property of his late father under the Acceding State (Property) Order No. 12 of 1961 with effect from the 15th of August 1947. Therefore under the provisions of the last mentioned Order the Central Government alone is empowered to decide disputes in respect of the properties in dispute claimed by the present Ruler as belonging to an ex-Ruler of Kharan State. It is further con tended that the jurisdiction of this Court has been ousted on the following grounds :- (1) That the privileges enjoyed by the respondent before the Merger Agreement 1955 were guaranteed to him in the Agreement and section 86 of the Interim Constitution of Baluchistan States Union, 1952 is one of it. (Sic). (2) That the provisions of section 86 C. P, C., and Ordinance No. XXII of 1960 have not been complied with by the appellants. (3) That the AccedinState (Property) Order No. 12 of 1961 bars the jurisdiction-of all the Courts. (4) That the substitution of the respondent more than four months after his father's death was illegal as well as against the provisions of "Dastur-ul-Amal Diwani, Kalat." (5) That the inclusion of the respondent was beyond time and as such the appeal was barred by limitation. (6) That in the original suits all the heirs of the respondents' father were not impleaded and the suit was bad for non-joinder of necessary parties. We will take up these objections separately. As regards the first objection that no suit could be filed against the Ruler of a State under section 86 of the Interim Constitution of the Baluchistan States Union, 1952, it would be noticed that most of the suits were filed against Sardar Habibullah Khan, the Nawab of Kharan. He succeeded his father Sardar Yakoob Khan in the year 1911. In 1940 Kharan State came into existence and in 1952 this State joined the Baluchistan States Union. The question of the applicability of this Constitution will be presently dealt with. Section 86 of the Interim Constitution of the Baluchistan States Union, 1952 is in the following terms :- "No proceedings whatsoever shall lie in, and no process whatsoever shall issue from, any Court in the Union against the Council of Ruler or Its members or against the consorts of (sic) Heir-apparents of its members whether in a personal capacity or otherwise, and except with the sanction of the Governor-General no proceedings whatsoever shall lie in, and no process whatsoever shall issue from any Court in the Union against the Wazir-I-Azam whether in a personal capacity or in respect of anything done or omitted to by done during the term of office in performance of purported performance of the duties thereof: Provided that nothing in this section shall be construed as restricting the right of any person to bring against the Union such proceedings as are permissible under any law for the time being in force." There is no doubt that under the provisions of this section no proceedings whatsoever could lie and no process whatsoever could issue from any Court in the Union against the Couacil of Rulers or its members. But in spite of this no objection was raised on behalf of Sardar Habibullah Khan about the jurisdiction of the Court of the Kazi to bear the suit against him in respect of the property in dispute. It will be noticed that A only four suits were filed in the year 1952-53. In all the suits the late Sardar Habibullah Khan appeared before the Kaza and asked for the adjournment of the case on the ground that the case of his Jagir is before the Baluchistan States Union. In the suit of Mst. Mah Bibi (subject-matter of Second Appeal No. 4 of 1960) he admitted the claim of his sister but asked for the adjournment of the case on the ground stated above. It will thus be noticed that in fact he acquiesced to the juris diction of the Kazi's Court. This attitude, in our opinion, was due to the fact that till the integration of West Pakistan the Baluchistan States Union (Interim Constitution) Act, 1952 had not been finalised. Ibis is apparent from the reply of the Assistant Secretary of the Ministry of States and Frontier Regions Division reproduced at page 109 in the case of Madad Khan v. Province of West Pakistan (P L D 1960 Kar. 160). It is therefore quite obvious that section 86 of the said Interim Constitution could not be considered to be a bar to the suits filed against Sardar Habibullah Khan. It further appears to us that this objection has no force because these suits were dismissed against Sardar Habibullah Khan in 1958, at a time when the Interim Constitution was no longer in force having been repealed by the West Pakistan Establishment Act, 1955. As already stated these suits were dismissed by the Kazi on the ground that the claim was vague. Of course appeal against the decision of the Kazi was tiled against Sardar Habibullah Khan. But he died during the pendency of the appeal. His heirs were brought on the record b and ultimately the Majlis-i-Shura remanded these suits on 17-2-1959. In these circumstances this objection has no relevancy to the decree which was ultimately passed in favour of the plaintiff in April 1959. Admittedly the rest of the suits were filed in the year 1958, and section 86 of the Interim Consti tution of 1952 has no relevancy and effect on these suits. This objection therefore has no force. In 1955 the Baluchistan States Union was merged into the Province of West Pakistan. Kazi Muhammad Issa, the learned counsel for Nawab Mir Mustafa Khan, has urged that under the Merger Agreement of 1955 the privileges enjoyed by the Rulers of the various States comprising the Baluchistan States Union were guaranteed and under it no civil suit could be filed against the Rulers of the four States which comprised the Baluchistan States Union. The learned counsel has not placed before us the Merger Agreement. On the other hand, even if the Baluchistan States Union Interim Constitution, 1952 is taken as a valid piece of constitutional legislation, it was repealed under section 3 of the West Pakistan (Adaptation of Laws) Order, 1955 issued by the Governor-General of Pakistan, and the provision in question did not at all remain in operation. As no vested right was acquired under the Baluchistan States Union Interim Constitution of 1952 and section 86 was only of a procedural nature, this section cannot be held applicable after 1955. In these cir cumstances the objection that the judgment and decree of the Kazi passed on the 18th of April 1959 and 28th of April are without jurisdiction has no force. It appears to us that the Baluchistan States Union (Interim Constitution) was not a valid piece of legislation and even if it was, after the repeal of the Baluchistan States Union Interim Constitution, 1952, in 1955, suits could be continued and filed against a Ruler of the State comprising the Baluchistan States Union and the Kazi was fully competent to pass the decrees In question against the heirs of Sardar Habibullah Khan In respect of the property in, dispute. The next objection raised on behalf of Nawab Mir Mustafa Khan is that the appeals are liable to be dismissed against him as the permission to file the appeals against him had not been obtained under section 86 of the Pakistan Civil Procedure Code read with Ordinance Nn. XXII of 19.0. Nawab Mir Mustafa Khan was recognized as the Nawab of Kharan under a letter dated the 25th of May 1959 issued under the autho rity of the President of Pakistan. The material portion of the letter is reproduced below :- " I am desired to say that the President of Pakistan has been pleased to recognise you as the Nawab of Kharan in succession to your late father, Nawab Habibullah Khan Nausherwani, in accordance with the Merger Agreement of January 1955, with the same privy purse, personal rights, privileges and dignities as guaranteed therein." In order to appreciate the argument of the learned counsel of Nawab Ghulam Mustafa Khan, it may be pointed out that the Civil Procedure Code of 1908 along with other enactments under section 3 of Ordinance No. XXI of 1960 was made applic able to the whole of Pakistan. By section 2 of this Ordinance the Kalat Civil Procedure Code was not repealed and this special legislation still exists on the Statute Book. This Ordinance was promulgated on 9-6-1960 and was given retrospective effect from 14-10-1955. On 16-6-1960 another Ordinance called Ordinance No. XXII of 1960 came into force by which certain provisions of the Civil Procedure Code were amended. Amongst these provisions we find the provisions of sections 85 to 87 of the C. P. C. These provisions on their terms applied to the Rulers of Foreign States. But under this Ordinance a new section 87-A was introduced. This is for the benefit of the Rulers of the Acceding States or of Merged States. Under the new section the provisions of sections 85 and 86 have also been applied to the Rulers of the above-mentioned States. The new section 87-A is in the following terms :- "87-A. Application of sections 85 and 86 to Rulers of Acceding States, etc.-(I) in this section- (a) "Merged State" means a State which being immediately before the fourteenth day of October 1955, an Acceding State, was on that day incorporated into the Province of West Pakistan ; and (b) "Ruler of an Acceding State or of a Merged State" means the person who for the time being is recognised by the President as the Ruler of an Acceding State, or who, immediately before the fourteenth day of October 1955, was the duly recognised Ruler of an Acceding State. (2) The provisions of sections 85 and 86 shall apply in relation to the Ruler of an Acceding State or of a Merged State as they apply in relation to the Ruler of a foreign State," The provisions of this section have got retrospective effect from the 14th day of October 1955. The definition of "Merged State" says that it means a State which being immediately before the 14th day of October 1955, an Acceding State, was on that day incorporated in the Province of West Pakistan. Further, the definition of "Ruler of an Acceding State or of a Merged State" means the person who for the time being is recognised by the President as the Ruler of an Acceding State, or who, immediately before the 14th day of October 1955, was the duly recognised Ruler of an Acceding State. Subsection (2) of section 87-A says that the provisions of sections 85 and 86 shall apply to the Ruler of an Acceding State or of a Merged State as they apply to the Ruler of a foreign State. Now, in the present case, the Nawab of Kharan is not the Ruler of any Merged State. The position of Kharan State in the Baluchistan Agency before 1947 was that of the territory of the Government of India. It acknowledged the sovereignty of the British Government. On August 15, 1947, after the Inde pendence Act of 1947 came into force, this State became indepen dent. In March 1948 this State along with other Baluchistan States entered into treaties with the Government of Pakistan and acceded to Pakistan. In 1952 a covenant was signed by the Rulers of the four Baluchistan Union States to form themselves into a Baluchistan States Union. With this end in view a covenant was signed by the Rulers of these States on the 11th of April 1952, in which they authorised the Council of Rulers composed of the four Rulers, to frame the Interim Constitution of the Union with the approval of the Central Government. It was further agreed that till a properly constituted Legislative Assembly came into existence, the Council of Rulers were to make and promulgate laws and act as a Legislature. On the 2nd of November 1952 these Rulers executed fresh instruments of accession on behalf of the Union of Baluchistan States through the Khan of Kalat, their President, and authorised him and his successors-in-office to make all future Instruments on their behalf and on behalf of their successors. It would thus be seen that from that time the Kharan State merged itself into the Baluchistan States Union and had no individual entity. In the light of the above facts it is quite clear to us that Kharan State has no individual entity and is not headed by any Ruler. It is for this reason that the President of Pakistan has not recognised Nawab Mir Mustafa Khan as the Ruler of Kharan State but only as Nawab of Kharan. In our opinion section 87-A of the C. P. C. does not apply to this respondent as he cannot be considered to be a Ruler of an Acceding State. Nawab Habibullah Khan's case might have stood on a different footing but this provision of law has no application to Nawab Mir Mustafa Khan. In the first place Kharan State is not a Merged State within the meaning of the said Ordinance, which merged into West Pakistan. Secondly, Nawab Mir Mustafa Khan cannot be considered to be a recognised Ruler of an Acced ing State. Apart from this, the Kalat Civil Procedure Code being a special legislation is still in force and it is doubtful that the Civil Procedure Code of 1908 applies to the Baluchistan States E Union area. Assuming that section 87-A applies to this respon dent, even then the objection of this respondent in this behalf is not of much consequence. Nawab Mir Mustafa Khan was already a party to the original suit much before the enactment of the above-mentioned legislation and his recognition as Nawab of Kharan. In that capacity he was also joined as party to the appeal. It will be further noticed that section 86, C. P. C., talks of instituting a suit and not an appeal In Hansraj Gupta and others v. Dehra Dun-Mussorie Electric Tramway Co., Ltd. (1) their Lordships of the Privy Council observed that "the word `suit' ordinarily means and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of plaint". It seems to us that in the context of section 86 C. P. C. that is the only meaning which can be given to the word "suit". We are not inclined to include the word "appeal" within the word "suit" in the context of the above provision of law. We therefore over-rule this objection. The third objection raised on behalf of Nawab Mir Mustufa Khan is that this Court cannot consider the appeal in respect' of the property in dispute which Nawab Mir Mustafa Khan, the present Ruler of Kharan State, claims as his own and through his father Sardar Habibullah Khan. This objection is based on the provisions of President's Order No. 12 of 1961 called the Acceding State (Property) Order, 1961. Section 3 of this Order reads as under:-- "Where any question arises directly or indirectly between persons claiming to be the heirs and successors of the Ruler of a State or claiming to succeed to the State, concerning the devolution and distribution of any property of that State or of the Ruler, the question shall be decided by an order of the Central Government." Kazi Muhammad Issa, the learned counsel for Nawab Mir Mustafa Khan, contended that as the property in dispute belonged to the Ruler of Kharan State the jurisdiction to settle such pro perty vests in the Central Government and not in the Civil Courts. This contention also has no substance because there is no dispute in the present case between the heirs and successors of the Acceding State nor there is any dispute in this case as to who should succeed to the State property. In fact there is no dispute in this case concerning the devolution and distribution of any property of the State or of the Ruler. The dispute in the present case is of the property of Sardar Nauroze Khan and Sardar Yakoob Khan who cannot be described as the Rulers of the State within the meaning of the above-mentioned Order. Under the provisions of subsection (A I R 1933 P C63) of section 2 any order of the Central Government could only be given effect to not earlier than the 15th day of August 1947. Sardar Nauroze Khan died in the year 1906 and Sardar Yakoob Khan died in the year 1911 and therefore the Central Government under this Order could not pass any order about the devolution or distribution of the property of the above two mentioned Rulers of Kharan State. This objection therefore must fail. It was next urged that under the Dastur-i-Amal Diwani Kalat, on the death of the Ruler his heirs cannot be impleaded as parties to any pending proceedings. It is true that there is no provision to this effect, but in the absence of any bar in the H Dastur-ul-Amal Diwani, Kalat, on the ordinary principles of the administration of justice this procedure must be considered to be inherent in any proceedings before a Civil Court. This objection also has no force. Lastly it was urged on behalf of Nawab Mir Mustafa Khan that he was impleaded as a party in some appeals much beyond time. The provisions of section 27 of the Dastur-i-Amal Diwani Kalat only say that an appeal should be filed against any order or decree within 30 days. The appeal in this case was filed within the time stipulated. Nawab Mir Mustafa Khan and some other persons were not originally impleaded as parties to the appeals and revision applications, but later on the objection of the other party, were impleaded as respondents. Under the practice and procedure prevalent in Pakistan, any person can be impleaded as party to any proceedings at any time. But ordinarily no person is joined as a party if the claim against him is barred by time. It is not alleged before us that the claim against Nawab Mir Mustafa Khan has become barred by limitation.) This objection therefore must fail. Another objection that all the heirs of the respondent's father were not impleaded as parties to the suit and therefore the suit was bad for non joinder of parties has also no force. This is a partition suit and in a partition suit what is necessary is f that the estate of a deceased must be sufficiently represented. All the sons and daughters of Sardar Habibullah Khan are represented in these proceedings and we do not think that the non joinder of the widows of Sardar Habibullah Khan has in any way prejudiced his estate. We therefore over-rule all they objections raised by Nawab Mir Mustafa Khan. Mr. Riazul Hassan, the learned counsel for some of the respondents in this case, also urged before us that an ad valorem court-fee should have been paid on the appeals filed in this Court. The learned counsel for these respondents contended that the appellants are out of possession of the property in dispute and an ad valorem court-fee should have been paid on the value of the property in dispute. It was admitted at the bar that the property in dispute is in the possession' of Mianji Khana, that is under the management of the Government. Besides, the docu ments produced on the record show that the appellants were considered throughout being in joint possession of the property left by Sardar Nauroze Khan and Sardar Yakoob Khan. Sardar Habibullah Khan wrote separate letters to the heirs of these persons in the year 1957 about the recognition of their rights and offered them property in lieu of their shares. It is therefore quite clear to us that the appellants are in joint possession of the property and the claim before us being in the nature of the parti tion of joint property, it is not possible for us to hold that the court-fee paid on the appeals is insufficient. It is a well settled principle of law that if the parties are in joint possession of the property in dispute, a court-fee stamp of Rs. 10 is sufficient in partition suits. Accordingly we hold that the court-fee paid on the appeals is sufficient and the appeals on the ground of Insuffi ciency of court-fee cannot be thrown out. Now we shall consider the dispute between the parties on merits. The litigation between the parties has a chequered history. It will be noticed that four suits were filed by Bibi Mah Bibi, Mir Ibrahim Khan, Mir Muhammad Rafique and Mir Shahbaz Khan in the year 1952-53. Out of these suits Mir Shabbaz Khan's suit related to the property inherited from Sardar Nauroze Khan and Sardar Yakoob Khan and the other suits related only to the property inherited from Sardar Nauroze Khan. These suits were dismissed on the 9th of August 1958 by the Kazi of Kharan on two grounds : (1) that the claim for partition of property against Sardar Habibullah Khan was vague because there were no details of the property required to be partitioned and (2) according to the principles of Shariat the case could not be decided in the absence of the defendants. The findings of the Kazi in this respect were challenged before the Majlis-i-Shura, Kalat Division. On the 17th of February 1959 the Majlls-i-Shura remanded the above-mentioned cases for decision on merits holding that the Kazi should call upon the plaintiffs to amend the plaint for the removal of the vagueness and that both under the Shariat law and Dastur-ul-Amal Diwani, Kalat, in case the defendant was absent the Kawas competent to take ex parte proceedings against the absenting parties. They set aside the order of the learned Kazi and directed him to decide the matter in the light of the directions given in their order. On remand the above-mentioned suit again came up for decision before the Kazi of Kharan. The plaintiffs in most of the suits furnished details of the property required to be parti tioned. They also filed along with their plaint certified copies of the settlement deed of 1883 executed by Sardar Azad Khan in favour of his three sons, a letter written by Sardar Habibullah Khan to the plaintiffs concerned expressing his readiness to give a portion of the ancestral property in lieu of his or her share. It may be noted that Sardar Habibullah Khan had died during the pendency of the above-mentioned appeals and his legal representatives had already been brought on the record. Before the Kazi, out of the legal representatives of deceased Sardar Habibullah Khan, Mir Muhammad Tabir Khan only appeared on behalf of himself, his brothers and sisters. The other legal representatives did not appear to contest the proceedings before the Kazi. Mir Muhammad Tahir Khan did not file any written statement and took up the position before the Kazi that since the property in dispute was under the manage ment of the "Mianji Khana;" that the property left by Sardar Habibullah Khan had not been ascertained and the dispute between his heirs had not been settled, the proceedings in the above suits should be dismissed. They further contended that the property in dispute did not belong to Sardar Azad Khan or Sardar Nauroze Khan, but were the properties of the late Sardar Habibullah Khan. They however refused to give any further statement or assistance in respect of the claim before the Kazi and expressed their inability to lead any evidence in the above-mentioned matters. The learned Kazi, in these circum stances, took ex parte proceedings against the legal representatives of the late Sardar Habibullah Khan. The Kazi in the suits of Bibi Mah Bibi, Mir Ibrahim. Khan and Mir Muhammad Rafique examined on the 14th of April 1959 Amir Muhammad Khan, Mir Ibrahim Khan and Nawab zada Shahbaz Khan respectively as witnesses on behalf of the plaintiffs. Mir Shahbaz Khan was also examined as a witness in his own case. These witnesses in their statements relied on the settlement deed of 1883, the letter of deceased Sardar Habib ullah Khan dated the 24th of November 1957 and the list fur nished by them in support of the plaintiffs' claim. They also stated that they had been receiving during the life-time of Sardar Yakoob Khan, maintenance allowances in lieu of their share in the property in dispute and that it should be partitioned between them. The Kazi, on consideration of these statements and the documents produced before him, accepted the plaintiffs' claim in the above-mentioned suits and passed a partition decree in respect of the property in dispute against the legal representatives of Sardar Habibullah Khan. In his order the Kazi determined the shares of the plaintiffs in the property in dispute. He further safe-guarded the interests of the opponents who rendered no assistance to him in any way by providing in the decree that the properties which have been gifted by Sardar Nauroze Khan or Sardar Yakoob Khan or had been given by Sardar Habibullah Khan to some of the heirs of Sardar Nauroze Khan and Sardar Yakoob Khan in lieu of their share will not be partitioned between the parties. As already stated, two more suits were filed by the heirs of Sardar Nauroze Khan in the year 1.958. Out of them one was filed by Jam Mir Khan and Changez Khan on the 27th of November 1958 and the second suit was filed by Alsha Bibi on the 4th of December 1958. In the year 1958 three more suits were filed by Mst. Rabid. Bibl, Bibi Naz Jan and Mir Rahim Khan and Hameedullah Khan, heirs of the late Sardar Yakoob Khan, against Sardar Habibullah Khan. In these cases also only Mir Muhammad Tahir Khan appeared on behalf of himself, his brothers and his sisters as the legal represen tatives of Sardar Habibullah Khan. None of the other heirs, in spite of service, appeared before the Kazi, who proceeded against them ex parse. Mir Muhammad Tahir Khan in these cases also took up the position that the partition suits did not lie as the property in dispute was under the management of the "Mianji Khana", that the property of Sardar Habibullah Khan had not been ascertained and the dispute between the heirs of Sardar Habibullah Khan had not been settled. He also pleaded that the property in dispute in these suits solely belonged to Sardar Habibullah Khan and had nothing to do with Sardar Nauroze Khan or Sardar Yakoob Khan. In these cases, also he gave no assistance to the Kazi in respect of the objections raised by him and expressed his inability to lead any evidence in support of them. The Kazi of Kharan, therfore, in these suits also took ex parte proceedings. In the suits filed by Mir Jam Khan and Mst. Aisha Bibi the Kazi examined Mir Abdul Kadir and Mir Pir Dil Khan as witnes ses respectively, and in the suits of Bibi Rabia, Bibi Naz Jan and Mir Rahim Khan and Hameedullah Khan he examined Muhammad Anwar Khan, Mir Rahim Khan and Mir Abdul Kadir respectively as witnesses. These witnesses in their statements, as in the ether cases, relied on the settlement deed of 1883, the list of the property furnished by them and the letter of Sardar Habibullah Khan of the year 1957 offering them some property in lieu of their share in the property left by Sardar Nauroze Khan and Sardar Yakoob Khan. The learned Kazi of Kharan in these cases also, on the oral evidence produced before him and the documentary evidence referred to above, gave a decree in favour of the plaintiff's on the 28th of April 1959. The decrees passed in all the above-mentioned suits were challenged before the Majlis-i-Shura only by Mir Muhammad Tahir Khan, his brothers and sisters in appeals solely on the ground that no partition decree could be passed in respect of the property which was not in possession of the appellants. The other heirs of Sardar Habibullah Khan, namely, Mustafa Khan and Mir Sher Ali group did not file any appeal against the judg ment and decree of the Kazi passed against them in the above mentioned suits. It may be noted that some of the plaintiff's filed appeals against the judgment of the Kazi in respect of the dismissal of their claim about the movable property on the ground that the Kazi should have given them an opportunity to lead evid ence about the movable property left by Sardar Nauroze Khan and Sardar Yakoob Khan. The Majlis-i-Shura on appeal considered the objections raised before them by the parties and set aside the judgments of the learned Kazi dated the 18th of April 1959 and 28th of April 1959 in the above-mentioned suits and remanded the suits for disposal to the Kazi of Kharan on the following grounds :- (1) That the learned Kazi was not justified in making any mention about the alleged properties gifted by Sardar Nauroze Khan and Sardar Yakoob Khan and also in respect of the properties which were given by Sardar Habibullah Khan to some of the heirs of Sardar Nauroze Khan and Sardar Yakoob Khan in lieu of their shares in the absence of any material on the record to support it. (2) That the learned Kazi in view of the denial of the defen dants that the property in dispute did not belong to Sardar Nauroze Khan and Sardar Yakoob Khan but belonged to their father Nawab Abdullah Khan, in the absence of any evidence on the record should not have treated it as belonging to Sardar Nauroze Khan and Sardar Yakoob Khan and sub jected to partition. (3) If some of the defendants or all the defendants were absent on the day of hearing, then it was incumbent on the Kazi to call upon the plaintiff's to prove their claim according to the principles of Shariat and he should not have decided the matter in the absence of such proof. (4) That the Kazi had decided the matter against the principles of Shariat without investigation which could not be maintained both under the Shariat and ordinary law. Reference in this connection was made to Radul Mukhtar page 470-471 Kitab-ul-Kaza. The Majlis-i-Shura rejected the plea of the plaintiffs that the judgment of the Kazi in respect of the immovable property should be maintained and the case should only be remanded for affording them an opportunity to establish their claim in the movable property left by Sardar Nauroze Khan and Sardar Yakoob Khan on the ground that the Kazi had decided the claim in respect of the immovable property without any proof and secondly, on the ground that it was not known which of the properties out of the immovable pro perties had been the subject-matter of gifts by the ancestors of the parties. The Majlis-i-Shura remanded the above-mentioned case to the Kazi for decision after affording further opportunities to the parties to lead evidence to prove their case. The finding of the learned Majlis-i-Shura in the above-men tioned case has been challenged before us in these appeals. It is urged on behalf of the applicants that there was sufficient oral and documentary evidence before the Kazi of Kharan on which he decided the matter in respect of the immovable properties in their favour. Their learned counsel have referred us to the statements of the parties or their attorneys who were examined by the Kazi in support of their claim. They have also referred us to the copy of the settlement deed of 1883 endorsed by Sir Robert Sandeman on the settlement of the property by Sardar Nauroze Khan on his three sons. Reference was also made to us to the list of properties filed by the parties in which the details of the property left by Sardar Nauroze Khan and Sardar Yakoob Khan and the properties given as blood money by Sardar Amir Khan on the murder of Sardar Yakoob Khan were given. The learned counsel contended before us that the proceedings before the learned Kazi were in the nature of ex parte proceedings and as Mir Muhammad Tahir Khan and his brothers and sisters did not furnish any proof in support of their objections, the learned Kazi was perfectly justified in decreeing the appellants' claim in respect of immovable property. On the other hand Syed Riazul Hassan and Mirza Muhammad Ahmad, the learned Advocates for the respondents, have contended before us that the documents filed by the appellants were inadmissible in evidence as they were not proved according to the law of evidence prevalent in the Baluchistan States Union. They further contended that the evidence of the parties was not recorded on oath and the list produced before the learned Kazi was also not authentic and was not supported by any independent and reliable evidence. Mirza Muhammad Ahmad, the learned counsel for some of the respondents, strongly urged before us that the learned Majlls-i-Shura was perfectly justified in setting aside the judgments of the Kazi in the above-mentioned suits as they were not based on any evidence. After hearing the learned counsel for the parties and going through the record, it is quite obvious to us that the proceedings before the Kazi in all the above-mentioned suits were in the nature r, of ex parte proceedings. Mir Muhammad Tahir Khan only raised certain objections before the learned Kazi about the maintain ability of the suits and the learned counsel for the respondents has not been able to satisfy us that the suits in question could be dismissed or thrown out on those objections. It seems to us that merely because the property in dispute was under the management of the "Mianji Khana" or that the property of Sardar Habibullah Khan had not been ascertained or the dispute between the heirs of Sardar Habibullah had not been settled, the plaintiffs' claim could not be defeated and the suit for the partition of the property left by Sardar Nauroze Khan or Sardar Yakoob Khan could not be dismissed on such flimsy grounds. Mir Muhammad Tabir Khan took an objection before the learned Kazi that the property in dispute did not belong to Sardar Nauroze Khan or to Sardar Yakoob Khan, but was not prepared to lead any evidence in support of this objection. He stated in un ambiguous terms before the learned Kazi that he or his brothers or sisters were not prepared to lead evidence on this objection as long as the dispute between the heirs of Sardar Habibullah Khan was not settled. In our opinion, in these circumstances, the learned Kazi was fully justified to proceed in the suits before him ex parte against the respondents before us. Now the evidence before the learned Kazi of Kharan con sisted of the statements of the parties, the certified copy of the settlement deed of 1883, the copies of the letters written in the year 1957 by Sardar Habibullah Khan and the list of the proper ties furnished by the appellants. The learned Kazi also had before him the statement of Sardar Habibullah Khan in the suit filed by Mir Muhammad Rafiq. In this statement he admitted the claim of Mir Muhammad Rafiq and expressed his readiness and willingness to partition the property between the parties in accordance with the Shariat Anwer, but only asked for time on the ground that the Central Government had not settled the dispute of the parties concerning the property in dispute and that it may be stayed till such a decision is taken. Another circum stance before the Kazi was that apart from Mir Muhammad Tahir Khan, no other legal representative of Sardar Habibullah Khan came forward to contest the claim of the appellants before him in the above-mentioned suits. The contention of the learned counsel for the appellants that the above-mentioned piece of evidence and the circumstances were sufficient material before the learned Kazi to arrive at an ex parte conclusion that the property in dispute belonged to Sardar Nauroze Khan or Sardar Yakoob Khan is not without force. In our opinion the learned Majlis-i Shura's observation that the learned Kazi of Kharan in the above mentioned suits had decided the matter without any proof or sufficient evidence is not correct and borne out by the record. The learned Majiis-i-Shura in this connection has referred to the commentary of Radul Mukhtar Kitab page 470-471. We have gone through this reference with the aid of the Urdu translation of Dur-ul-Mukhtar published in 1925 by Munshi Navalkishore. The relevant reference appears in Volume IV of the translation at page 240-41. There is nothing in this reference which supports the contention of Majlis-i-Shura. The learned author of Dur ul-Mukhtar has only observed that if any defendant is absent in spite of service, then it is the duty of the Kazi to appoint a representative of the absenting defendant before he decides the matter against him. This observation cannot be applied to the facts of this case because in the Dastur-ul-Amal Diwani, Kalat, applicable to this case, in section 6 it is stated that if the defendant fails to appear then ex pane proceedings could be taken against him. It will be interesting to mention here that the learned Majlis-i-Shura in their order dated 17th of February 1959 upset the decision of the Kazi of Kharan dated the 9th of August 1958 and took a different view on this question. While dealing with the question what should be done if the defendant had failed to appear the learned Majlis-i-Shura observed as under :- "So far as the question raised by the Kazi about the absence of the defendants, it is wrong, because the Kazi himself has admitted that the Majlis-i-Shura has already directed him that according to the Shariat Law it is open to the Kazi to proceed in the matter if the defendant had been served and failed to appear and pass an ex parte decree, but the learned Kazi has adhered to his old view and has not attached any importance to the views of Majlis-i-Shura." (Translation is ours). In these circumstances, the view of the learned Majlis-i-Shura that the Kazi of Kharan was not justified to pass an ex parte decree in these cases cannot be upheld. Mirza Muhammad Ahmad, the learned counsel for some of the respondents, argued that the settlement deed should not have been admitted in evidence because the original document was not produced before the Kazi. The document is of a public nature. It is even referred to in the report submitted by R. D. Sandeman, the Governer-General's Agent, dated the 21st of June 1884 in M Appendix L printed by the late Government of India. The copies produced before the Kazi were certified and were obtained from the office of the Tehsildar. In these circumstances we are satisfied that the certified copy of the settlement deed of 1883 being in the nature of a public document was rightly admitted in evidence by the learned Kazi of Kharan. It was also urged by Mirza Muhammad Ahmad that the details of the property given in this document are not sufficient to identify the property left by Sardar Nauroze Khan and Sardar Yakoob Khan or Sardar Mir Khan which ultimately fell to the heirs of Sardar Yakoob Khan as blood money. This contention has no substance. It is admitted by the parties that Sardar Azad Khan in the year 1883 settled most of his landed property on his three sons Sardar Nauroze Khan, Sardar Azeem Khan and Sardar Amir Khan. The property of Sardar Nauroze Khan devolved on Sardar Yakoob Khan. Sardar Yakoob Khan was murdered by his uncle Sardar Mir Khan and his landed property was given to the heirs of Sardar Yakoob Khan by the Shahi Jirga as blood money. Thus it is quite obvious to us that from the list of the properties mentioned in the settlement deed of 1883 given to the three sons of Sardar Azad Khan it can easily be ascertained what property came to the share of Sardar Nauroze Khan and his heirs and to Sardar Yakoob Khan's heirs as blood money. There can be no confusion so far as these properties are concerned. It is not the case of the parties or of the plaintiffs that they are claiming any other property except these properties. In our opinion the learned Kazi of Kharan in these cases has acted in a very cautious manner. He has very properly safe-guarded the interests of the absenting parties before him by making a provision that such property which had been gifted either by Sardar Nauroze Khan or Sardar Yakoob Khan will no be partitioned between the parties or will not form part of the subject-matter of partition. In these circumstances we are satisfied that the judgment and decree passed by the learned Kazi of Kharan in the above-mentioned suit were based on sufficient and reliable evidence placed before him and the learned Majlis-i-Shura on the facts of the present case was not justified in upsetting the decision of the Kazi in the above-mentioned suits. We would also like to dispose of another objection of Mirza Muhammad Ahmad that the statement recorded in the above mentioned suit before the learned Kazi was not taken on oath and could not be relied upon for decreeing the suits of the plaintiffs. In our opinion as the Kazi was to decide the case according to the Shariat Anwer it was not obligatory on hinl to give oath to the witnesses who appeared before him. The parties are Hanafi Muslims and under the Hanafi School it is not necessary to give an oath to a witness because the word "testimony" implies an oath. This question has been discussed in Falsafat Al-Tashri Fi-AI-Islam, translated by Farhat J., Zaideh, published in the year 1961 at page

185. The learned author under the heading of "Administering the oath to the witness" observed as under: "There are two views in the shariah concerning the administer ing of oath to a witness. The first maintains that no oath need be required because the word testimony (shahadah) implies an oath. This is the opinion of the hanafi school." The learned author has later on discussed the views of the other schools, and as the parties in this case are Hanafis it is not necessary to advert further on this question. In our opinion this, objection also has no force. We have carefully considered the judgment of the Majlis-I- Shura attacked before us in these appeals. In our opinion the learned Kazi of Kharan has not departed from the accepted Judicial principles in deciding the matters ex parte. Even in ordinary Civil Courts in Pakistan under the Code of Civil Procedure of 1908, the principles on which ex parte proceedings are taken and ex parte judgments are given, are the same on which the 0 learned Kazi of Kharan decided the cases before him. In the case of F. Kanematsu & Co. Ltd. v. S. Nazir Hussain Puri (P L D 1957 Kar. 832), the question and principles on which ex parte decrees are passed was considered by one of us. It was held in that case that before passing an ex parte decree the Court must at least hold that the case has been prima facie proved by some evidence. It was further held in that case that it is the duty of the Court when ex parte proceedings are taken, to consider the absence of the defendant and the record should bear some indication that the matter was properly considered and the Court applied its mind to the facts of the case. We are not prepared to place the standard of proof in ex parte proceedings before the Kazi on a higher footing than what is considered sufficient in the ordinary Civil Courts in Pakistan. In our opinion therefore, the learned Majlis-i-Shura was not justified in setting aside the decree of the learned Kazi in the above-mentioned suits. Apart from this the learned counsel for the respondents have not satisfied us about the justification of remanding the suits for re-trial before the Kazi. It is not disputed before us that the several plaintiffs in the above-mentioned suits are the heirs of Sardar Nauroze Khan or Sardar Yakoob Khan. There is also no dispute between the parties about the shares of the various plaintiffs determined by the Kazi. The only dispute is about the property left by Sardar Nauroze Khan or claimed by the heirs of Sardar Yakoob Khan. There is no difficulty on this question. This property is described in a reliable document namely the settlement deed of Sardar Azad Khan dated 31-12-1883, and this will only be subject to partition. The Kazi had already safeguarded the interest of the respondents in this respect. The decree passed by the Kazi is in the nature of a preliminary decree. The parties before us have already been subjected to prolonged litigation and it seems to us that if the suits are remanded for re-trial, it will result in the further harassment of the appellants. So far as the respondents are concerned, their counsel have not been able to satisfy us that their interest has seriously been prejudiced by the decision of the Kazi in the above-mentioned suit. Accordingly we restore the decree of the Kazi of Kharan in the above-mentioned suits and set aside the order of the Majlis-i-Shura in the above-mentioned appeals. Now we will consider the points raised in Revision No. 17 of 1959 filed on behalf of Mst. Aisha Bibi and others. In this revision the petitioners have challenged the validity of the partition proceedings pending before the learned Deputy Com missioner in execution of the decree passed by the Kazi of Kharan in the above-mentioned suits. The learned Deputy Commissioner during the partition proceedings had appointed five arbitrators to partition the property between the parties. Mr. Muhammad Nawaz Khan, the learned counsel for the petitioners, has contended before us that the learned Deputy Commissioner is not competent to appoint any arbitrator on behalf of the parties to partition the property in dispute between them. This objection appears to us to be well founded. The procedure adopted by the learned Deputy Commissioner in the partition proceedings bas not been supported by any of the parties appearing before us. Accordingly we set aside the partition proceedings held up till now in respect of the property in dispute by the learned Deputy Commissioner. But we consider it desirable that some directions should be given to the executing Court namely the Deputy Commissioner Kharan, for partitioning the property in dispute between the various parties according to their shares as determined by tee Kazi In his judgment in the above-mentioned suits. It must be clearly stated that the immovable properties to be partitioned between the parties are those which are detailed and described in the settlement deed of Sardar Azad Khan dated 31-12-1883. Properties which were settled on Sardar Nauroze Khan under this deed are to be partitioned between the parties, who claim their right from him. Properties of Sardar Amir Khan were awarded by the Shahi Jirga to the heirs of Sardar Yakoob Khan and therefore these properties will also be in cluded for partitioning between the parties, who claim their right through Sardar Yakoob Khan. It will be further noticed that the learned Kazi has observed in his judgment that those properties which bad been gifted by Sardar Nauroze Khan or Sardar Yakoob Khan will not form the subject-matter of the partition decree. In these circumstances it will be open to the respondent to lead evidence before the learned Deputy Commissioner or the local Commissioner appointed by him to prove that the properties claimed by the plaintiffs in the above-mentioned suits as belong ing to Sardar Nauroze Khan or Sardar Yakoob Khan or Sardar Amir Khan have either been gifted or given in lieu of the shares of the heirs of Sardar Nauroze Khan or Sardar Yakoob Khan. If the respondents are able to satisfactorily prove this fact in respect of any property, it will be excluded from partition. We further direct that the learned Deputy Commissioner should appoint local Commissioners for partitioning the property in dispute. These officers, after giving notice and affording opportunities to the parties, should submit a scheme for partition for the approval of the Deputy Commissioner. The learned Deputy Commissioner, after inviting objections of the parties, should thereafter finally decide the question about the manner in which the property should be partitioned In accordance with their shares between the various parties. The learned counsel for the opponents in the revision petition has urged before us that three-fourths of the property has already been partitioned and they are enjoying the benefits of the property. This partition can no longer stand and all such properties which are in the possession of any of the parties should be taken over by the Deputy Commissioner and should be managed by him through his own officers till partition is effected between the parties. But in partitioning the property care should be taken that those properties which have been developed by any party should be allotted to him or her and if possible should be given to them fn lieu of his or her share. In the meanwhile ft will be open to the learned Deputy Commissioner to allow maintenance allowances to the parties concerned out of the income of the property in dispute in proportion to their shares. In the result the appeals and revision are allowed with costs. A. H. Appeals allowed.