1994 PLP 1371 (CLC)

This revision petition arises out of a suit for partition filed by respondent No. 1 on 27‑9‑1973 in the Court of the Civil Judge, Faisalabad. The suit was resisted by the petitioner as well as respondents Nos. 2 to 8 who filed their written statement in the Court. However, on 17‑7‑1976, learned counsel for the defendants made a statement that the defendants had accepted the shares as claimed in the suit. Accordingly a preliminary decree was passed on the same day i.e. 17‑7‑1976. Ghulam Rasool filed an application on 22‑9‑1976 stating therein that he had never instructed his counsel to make the statement admitting the shares mentioned in the plaint to be correct. However, subsequently, the Court took proceedings for the purposes of passing a final decree and appointed a Local Commissioner (Ghulam Mohy‑ud‑Din, Advocate), who submitted his report in the Court. Objections against the said report were invited and the petitioners filed their objections. After considering the objections the report was struck down and another Local Commissioner (Gut Muhammad, Advocate) was appointed who submitted his report on 7‑3‑1979. Again objections to the report were invited whereupon Ghulam Rasool petitioner filed his objection. After considering the same the trial Court passed a final decree on 29‑5‑1979. The petitioner filed an appeal against the final decree which was dismissed by the learned Additional District Judge vide his judgment and decree dated 2‑7‑1983. It may be mentioned here that the appeal was shown to have been filed by the petitioner as well as respondents Nos. 2 to 8 but respondents Nos. 2 to 8 filed an application stating thcrein that they had never filed the appeal.

2. The respondent's learned counsel raised the following two preliminary objections:‑‑ (i) The preliminary decree was never challenged by any party and had attained finality. Therefore, the same cannot be attacked by virtue of the provisions of section 97 of the C.P.C. while challenging the final decree. (ii) Four persons namely Ghulam Muhammad, Abdul Aziz and Natha sons of Rehmat and Mst. Nathi daughter of Rchmat have not been impleaded as respondents in the petition. He points out that Natha was not impleaded as a respondent even in the appeal before the learned Additional District Judge.

3. Meeting the objections the petitioners' learned counsel urged that the preliminary decree was void, ab initio as it was passed by the Civil Court without jurisdiction. He explains that the disputed property was evacuee and was transferred to Muhammad Ramzan, Munshi and Rehmat. Muhammad Izhar, respondent No. 1 had purchased the share of Muhammad Ramzan. Placing reliance on the case of Dr. Munawar Ali Khan v. Chief Settlement Commissioner (1976 SCMR 54), he submits that the determination of shares by the Settlement Authority cannot be interfered with by the Civil Court. He also places reliance on the case of Harz Mujtaba Ahmad v. Mst. Aziz Fatima (PLD 1981 Lah. '583). As regards non‑impleadment of the parties he submits that the persons left out from the array of the respondents had made a statement before the learned Additional District Judge that they were not interested to challenge the order of the trial Court. For that reason they were not impleaded as respondents herein.

4. After hearing the learned counsel for the parties, I find that the petitioner had never challenged the preliminary decree and his counsel (as well as counsel for respondents Nos. 2 to 8) had made statement on 17‑7‑1976 that the shares as mentioned in the plaint were correct and that he ,had no objection if a preliminary decree was passed accordingly. 1 have also seen the Permanent Transfer Deed (Exh. P. 1), in respect of transfer of the house No. P‑34/B in favour of Muhammad Ramzan. It clearly shows that 1/3rd of house, P‑34/B, Ward No. 7 was transferred to Muhammad Ramzan. His share was purchased by Muhammad Izhar, respondent No.

1. Therefore, the trial Court had rightly passed the preliminary decree. The Civil Court had not disturbed the shares as fixed by the Settlement Authorities. Therefore, the Court had rightly passed preliminary decree which attained finality as it was not challenged by the petitioner or the other respondents. Thereafter the trial Court took further steps in accordance with the law for passing the final decree according to the admitted shares of the parties. Moreover, this revision petition was not properly constituted because necessary parties (as mentioned by the learned counsel that respondent No. 1) were not impleaded. Admittedly Natha was a defendant in the suit but he was neither impleaded in the present revision petition nor before the learned District Judge. Similarly, Ghulam Muhammad, Abdul Aziz sons of Rehmat and Mst. Nathi daughter of Rehmat have not been impleaded in the revision petition. The petitioner had attacked the preliminary as well as the final decree and ought to have impleaded all the persons as respondents who could be adversely affected in case of acceptance of the revision petition. The above view finds support from the cases of Mst. Maqbool Begum etc. v. Ghulam and others (PLD 1982 SC 46) and Muhammad Suleman 8 v. Abdul Rashid and 13 others (PLD 1987 Lah. 387).

5. I do not find any material irregularity or illegality in the impugned judgments and decrees of the Courts below so as to justify interference in the exercise of revisional jurisdiction. Resultantly, the revision petition fails and is dismissed leaving the parties to bear their own costs. H.B.T./G‑204/L Revision dismissed.