2007 PLP 1661 (CLC)
ABDUS SHAKOOR — Petitioner Versus MUHAMMAD ZAFAR ULLAH KHAN and others — Respondents
| Citation | 2007 PLP 1661 (CLC) |
| Forum / Court | Peshawar |
| Bench Members | N/A |
| Parties | ABDUS SHAKOOR — Petitioner Versus MUHAMMAD ZAFAR ULLAH KHAN and others — Respondents |
Q1: What are the key laws and sections cited in 2007 PLP 1661 (CLC)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2007 PLP 1661 (CLC)?
The case was heard and decided by the Peshawar bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2007 PLP 1661 (CLC) (ABDUS SHAKOOR — Petitioner Versus MUHAMMAD ZAFAR ULLAH KHAN and others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- M.S.H. Qureshi for Petitioner.
- Mian Mohibullah Kakakhel for Respondents.
- At the conclusion of the trial, learned Civil Judge, Kohat, seized of the matter, discussed aforesaid issue in detail and found plaintiffs entitled to 62/108 shares and defendant No. 1 as owner of 46/108 shares, in suit house. Resultantly, vide judgment and decree, dated 13-3-1997, suit was allowed and a preliminary decree for possession through partition was granted in favour of the plaintiffs against the defendants. On 12-4-1997, an application was moved by the decree-holder for grant of final decree. Mr. Muhammad Idris, Advocate was appointed as Local Commission. He visited the spot and submitted his report. The report, having been objected to by both the parties, was set aside and Mr. Abdul Qayum, Advocate was appointed fresh commission. The learned Commissioner visited the spot in presence of the parties/their representatives and submitted his report (Exh.C.W.1/5) in Court. The report was confirmed, vide order, dated 24-4-2006. A Civil Revision (No.17 of 2004) was filed thereagainst, which did not succeed. The same was dismissed by learned Additional District Judge, by judgment, dated 8-7-2005.
- 4. I have heard at length Mr. M.S.H. Qureshi, Advocate for the petitioner and Mian Mohibullah Kakakhel, Advocate for the respondents, iii the light of the material on file.
- 5. It may be observed here that parties are closely related to each other. Abdul Shakoor, petitioner is real brother of Muhammad Zafarullah Khan, respondent No.1. They are litigating since 1992, in respect of partition of a small house situated in Mauza Jangal Khel, Kohat. As observed earlier, a preliminary decree has been passed in favour of the plaintiffs-respondents and for grant of final decree, a Local Commissioner has been appointed, who has submitted his report in Court. The report has been confirmed by order, dated 24-4-2006 for valid reasons, not open to legitimate exception. Under Order XXVI, rule 10(2) of the Code of Civil Procedure, the report of the Commissioner to whom the commission has been issued by the Court is to be treated as evidence in the suit, although it is not binding on the Court which may arrive at its own conclusion on the basis of the evidence on record. Needless to emphasize that it is not safe for a Court to act as an Expert and to override the elaborate report of a Commission whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report, and who had not blindly adopted the assertion of either party. In the instant case, I find that Mr. Abdul Qayyum, Advocate visited the spot in compliance with the order of the Court, in. presence of the parties/their representatives and submitted a detailed and comprehensive report, adverting to all the aspects of the case. The findings of the trial Court and affirmed by the revisional Court are unexceptionable and hardly call for interference of this Court. The mere assertion of learned counsel for the petitioner that suit house was not partitionable, that Courts below have not appreciated the evidence on record in its true perspective and a defective report commission was considered and made basis of the impugned judgments, without a positive attempt on his part, to substantiate the same, is of no consequence.
Headnotes / Summary
O. XXVI, R.10(2)
Partition Act (IV of 1893), S.2
Scope
Relying on report of Local Commissioner, Trial Court passed final decree, which was maintained by Appellate Court
Plea raised by petitioner in revision was that suit house was not partitionable, courts below did not appreciate evidence on record in its true perspective and a defective report of Local Commissioner was considered and made basis of their judgments
Report under O.XXVI, R.10(2) C.P.C. of Local Commissioner, to whom commission was issued by court was to be treated as evidence in the suit, although it was not binding on the court, which could arrive at its own conclusion on the basis of evidence on record
Report was confirmed for valid reasons, not open to legitimate exception and it was not safe for a court to act as an expert and to override elaborate report of a Commissioner whose integrity and carefulness were unquestioned, whose careful and laborious execution of task was proved by his report and who had not blindly adopted assertion of either party
Local Commissioner visited the spot in compliance with the order of court in presence of parties/their representatives and submitted a detailed and comprehensive report, adverting to all aspects of the case
Findings of Trial Court affirmed by Appellate Court were unexceptionable and did not call for interference of High Court.
Judgment & Decree
IJAZ-UL-HASSAN KHAN, J.
Shortly narrated the facts, leading to the filing of instant civil revision are, that Muhammad Zafarullah Khan and his wife Mst. Mumtaz Bibi, plaintiffs, filed suit on 22-1-1992, in the Court of Senior Civil Judge, Kohat, against Abdul Shakoor and his wife Mst. Amtari Jan (since dead), defendants, seeking possession through partition of suit house (detailed in the plaint), owned by their predecessor-in-interest Abdul Aziz. It was averred in the plaint that Abdul Aziz had transferred 1/3rd share in suit house in favour of Abdul Ghafoor and Mst. Amtari Jan, in his life time, through registered deed dated 10-12-1949 and the remaining was gifted to Amanullah Khan, Muhammad Nasrullah Khan and Muhammad Zafarullah Khan, and the parties were handed over the possession of their respective shares. It was also alleged that after the demise of Nasrullah Khan, share of Nasrullah Khan was devolved upon Abdul Ghafoor, Mst. Amtari Jan "and Mst. Imtiaz Bibi and inheritance mutation was attested in favour of the said legal heirs of late Nasrullah Khan, according to their Shari shares. Abdul Ghafoor gifted his whole share in favour of Zafarullah Khan through a registered deed, dated 25-2-1981 and possession was handed over accordingly.
2. The suit was resisted on all grounds, legal as well as factual and claim of the plaintiffs was repudiated. Necessary issues were framed and pro and contra evidence was recorded in support of the respective stances of the parties. The prime issue viz. Issue No.7 is reproduced below:-- "Whether the plaintiffs are entitled to the decree for possession of the suit house through partition of 62/108 shares?" At the conclusion of the trial, learned Civil Judge, Kohat, seized of the matter, discussed aforesaid issue in detail and found plaintiffs entitled to 62/108 shares and defendant No. 1 as owner of 46/108 shares, in suit house. Resultantly, vide judgment and decree, dated 13-3-1997, suit was allowed and a preliminary decree for possession through partition was granted in favour of the plaintiffs against the defendants. On 12-4-1997, an application was moved by the decree-holder for grant of final decree. Mr. Muhammad Idris, Advocate was appointed as Local Commission. He visited the spot and submitted his report. The report, having been objected to by both the parties, was set aside and Mr. Abdul Qayum, Advocate was appointed fresh commission. The learned Commissioner visited the spot in presence of the parties/their representatives and submitted his report (Exh.C.W.1/5) in Court. The report was confirmed, vide order, dated 24-4-2006. A Civil Revision (No.17 of 2004) was filed thereagainst, which did not succeed. The same was dismissed by learned Additional District Judge, by judgment, dated 8-7-2005.
4. I have heard at length Mr. M.S.H. Qureshi, Advocate for the petitioner and Mian Mohibullah Kakakhel, Advocate for the respondents, iii the light of the material on file.
5. It may be observed here that parties are closely related to each other. Abdul Shakoor, petitioner is real brother of Muhammad Zafarullah Khan, respondent No.1. They are litigating since 1992, in respect of partition of a small house situated in Mauza Jangal Khel, Kohat. As observed earlier, a preliminary decree has been passed in favour of the plaintiffs-respondents and for grant of final decree, a Local Commissioner has been appointed, who has submitted his report in Court. The report has been confirmed by order, dated 24-4-2006 for valid reasons, not open to legitimate exception. Under Order XXVI, rule 10(2) of the Code of Civil Procedure, the report of the Commissioner to whom the commission has been issued by the Court is to be treated as evidence in the suit, although it is not binding on the Court which may arrive at its own conclusion on the basis of the evidence on record. Needless to emphasize that it is not safe for a Court to act as an Expert and to override the elaborate report of a Commission whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report, and who had not blindly adopted the assertion of either party. In the instant case, I find that Mr. Abdul Qayyum, Advocate visited the spot in compliance with the order of the Court, in. presence of the parties/their representatives and submitted a detailed and comprehensive report, adverting to all the aspects of the case. The findings of the trial Court and affirmed by the revisional Court are unexceptionable and hardly call for interference of this Court. The mere assertion of learned counsel for the petitioner that suit house was not partitionable, that Courts below have not appreciated the evidence on record in its true perspective and a defective report commission was considered and made basis of the impugned judgments, without a positive attempt on his part, to substantiate the same, is of no consequence.
6. The civil revision having been found bereft of merit, is dismissed, with no order as to costs. M.H./147/P Revision dismissed.