2016 PLP 1 (YLRN)

AMIN-UN-DIN KHAN, J.

Through this Civil Revision, petitioner has challenged the judgment and decree dated 10.11.2004 passed by the learned Addl. District Judge, Kot Addu, whereby appeal filed by the respondents/plaintiffs was accepted and judgment and decree dated 31.3.2003 passed by Civil Judge Kot Addu dismissing the suit was reversed.

2. Brief facts of the case are that respondents/plaintiffs on 27.3.1997 filed a suit for declaration that they are owner in possession of the suit property measuring 57 Kanals 3 Marlas fully described in the head note of the plaint on the basis of family partition and by filing amended plaint challenged mutation No.1094 attested on 4-11-1007. Written statement was filed and suit was contested, parties were directed to produce their oral as well as documentary evidence. Learned trial court was pleased to dismiss the suit vide judgment and decree dated 31 3.2003. The appeal was preferred, learned first appellate court was pleased to accept the appeal and decree the suit vide judgment and decree dated 10.11.2004. Hence, this civil revision.

2. Learned counsel for the petitioner argues that plaintiffs/respondents are the nephews of the petitioner states that when petitioner filed a petition for partition of the suit property before the revenue hierarchy, dishonestly the suit in hand was filed by the plaintiffs/respondents. States that all the documents produced by the plaintiffs/respondents i.e. khasra gardawri Ex.P1 negates the claim of the plaintiffs/respondents as name of the petitioner is available as cultivator as a share holder and further Ex.P2 copy of register haqdaran zameen for the year 1993-94 shows that along with plaintiffs not only the defendant/petitioner is joint share holder but mother of the plaintiffs as well as their three sisters are also share holders in the joint khata, without impleading them the suit was not competent. States that learned trial court through its well reasoned judgment has dismissed the suit. The findings of learned trial court are in accordance with law and further that on the application of the petitioner before the revenue hierarchy, the separate wanda of the joint owners were prepared and the mutation No. 1094 was attested in accordance with law and there is no defect in the attestation of the said mutation whereby separate wanda of parties have been confirmed and implemented in the revenue record and further that through Ex.DI, the rapt roznamcha No. 434 dated 28.7.2000, the partition was implemented at the spot. Further that even two sisters of the plaintiffs also filed application for partition of the joint property before revenue hierarchy which is subject matter of the suit in hand, copy of which has been produced as Ex.D

4. Further that the learned first appellate Court has not only disregarded the evidence available on the file but also based its findings upon an award without complying the provision of law and ignoring the objections raised by the petitioner upon that award and even learned counsel for the petitioner has levelled allegations against the learned Additional District Judge who passed the judgment and decree. In the interim order sheet, which has been placed on the file of this Court, it is visible that the judgment and decree has been passed by violating the legal provision of law and even the case was fixed for decision of objection on the award but without deciding the objections, the appeal has been allowed.

3. On the other hand learned counsel for the respondent argues that in accordance with section 89-A of the C.P.C. through alternate dispute resolution the appellate court has decided the matter and no illegality has been committed, therefore, prays for dismissal of the revision petition.

4. I have heard the learned counsel for the parties at length, gone through the record, the findings recorded by both the courts below.

5. The suit for declaration was admittedly filed by the respondents/ plaintiffs against the sole defendant i.e. the petitioner on the ground that through family partition they are owner in possession of the suit property, specific property in the joint khata whereas plaintiff produced Ex.P2 register haqdaran zameen, for the year 1993-1994 with regard to the suit property. According to Ex.P2 along with the plaintiff and defendant No.1 three sisters of the plaintiff as well as their mother are also the co-sharers in the khata and plaintiffs pray that they be declared owner in possession of specific khasra numbers without impleading all the co-sharers. Without impleading the co-sharers, the suit was not competent. I am clear in my mind that when a party comes with the prayer of declaration through his suit filed under section 42 of the Specific Relief Act, 1877; it is incumbent upon that party to prove their existing right and the court can declare only the pre-existing right and cannot create or confer a new right through declaration issued under section 42 of the Specific Relief Act 1877. In this case admittedly, the plaintiffs are joint owners of the suit property along with defendant as well as their three sisters and their mother. The total land in the khata is 113 Kanals-14 Marlas to which plaintiffs want that they be declared exclusive owner of specific khasra number of the property mentioned in the head note of the plaint measuring 57 Kanals and 3 marlas. Further, the present suit has been filed on 27.3.1997 whereas application for partition of the joint khata was filed on 20.1.1997 by the present petitioner, copy of which has been produced as Ex.D1, whereas other application which was filed on 22.5.1996 by Shameem Akhtar and Anees Akhtar sisters of the plaintiffs/respondents, copy of which has been produced as Ex.D4, when during the pendency of the suit upon the valid proceedings a partition was ordered and a mutation No. 1094 was attested on 4.11.1997 without impleading the revenue officials who have passed the same and without impleading all the co-sharers the suit was not competent.

6. So far as proceeding during the pendency of appeal upon the arbitration award or under section 89-A of the C.P.C.' are concerned, have gone through the copy of the reference to the arbitrator which has been annexed with this civil revision. Learned counsel for the petitioner states that there is a cutting whereby the word " " have been subsequently cut dishonestly by the respondents. The counsel has levelled allegations upon the presiding officer of the court to say that interim order shows that the matter was referred to the arbitrator and after submission of award the objections were invited and petitioner submitted the objections and on 23.10.2004 next date was fixed for 28.10.2004 for. reply of the objection by the present respondent and on. the said date i.e. 28.10.2004, the presiding officer was on leave and next date was fixed for 10.11.2004, when without touching the objections raised by the petitioner, the appeal has been allowed ignoring all the legal defects in it. I have taken light from the referred judgment of August Supreme Court of Pakistan reported as "1999 SCMR 2702 Inayatullah Khan v. Obaidullah Khan and others". When there are glaring jurisdictional defect in the judgment, the award will be invalid and void. When there is a cutting in the reference and through cutting that agreement becomes worthless as the matter was with regard to partition of the suit property and by that cutting the reference becomes meaningless and further in the light of "PLD 2000 Lahore 314 "(Punjab Province through Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and another v. Messrs Chauhan and Company through Managing Partner)" the court was bound to decide the objections raised upon the award. So far as leveling allegations upon the presiding officer by the learned counsel for the petitioner are concerned, there is substance when the presiding officer has adopted the procedure which was prejudicial to the rights of the petitioner and has ignored their objections and without deciding their objections upon the award has passed the judgment by allowing the appeal filed by the respondent on the basis of award the same is not sustainable under the law. Petitioner is at liberty to move before the appropriate forum against the learned presiding officer of lower appellate court.

7. In the light of what has been discussed above, the judgment and decree passed by learned First Appellate Court are absolutely against the law and without jurisdiction, same are set aside. This civil revision is allowed. The result would be, the suit filed by the plaintiffs/respondents stand dismissed. ZC/K-27/L Revision allowed.