2015 PLP 878 (MLD)

IBAD-UR-REHMAN LODHI, J.

This appeal as also RFA No.556 of 2006 are to be disposed of together, as judgment and decree dated 19-7-2006 (the date "21-9-2006" was signed by the learned trial Judge in the decree-sheet), has been challenged in both the appeals.

2. A suit for partition was filed by respondent No.1 on 19-6-1999, seeking partition of joint properties, detail hereunder:-- (i). House Nos. 156, 157, 158, 159, situated in Block-C, Gulshan-e-Ravi, Lahore. (ii) Shop No.386, situated at Pakistan Cloth Market, Lahore. (iii) House No.F-2397, situated in Chuna Mandi, Lahore. (iv) Shop No.49, Pakistan Cloth Market, Lahore (3/4 share). (v) 1/6th Commercial and residential share of Chamber Lane Road, Lahore. claiming that Sheikh Iqbal Hussain, who at the time of his death, left the suit properties as his estate was survived through the parties to the partition suit, being legal heirs of deceased, who were entitled to their shares i.e. 1/6th to each son of Sheikh Iqbal Hussain, whereas, 1/12th to each daughter of said Sheikh Iqbal Hussain.

3. A Punchayat was also referred as has been held with regard to the partition of the estate of Sheikh Iqbal Hussain amongst the parties to the suit and a writing arrived at by that Punchayat was also placed on record, whereby, rights of all the legal heirs of deceased Sheikh Iqbal Hussain were accepted by each of them.

4. Defendants Nos. 1, 4 and 5 contested the suit by filing their written statement and also pleaded collusion of the plaintiff with defendants Nos.2, 3, 6 and

7. Regarding House Nos.157 and 159, situated in Gulshan-e-Ravi, Lahore, defendants Nos.1 and 4 claimed to have purchased by their own capital and, as such, according to their version, these houses were out of the joint pool of the estate left by Sheikh Iqbal Hussain. Regarding other properties, only possession of some defendants was pleaded, but without any exclusive title thereof.

5. The learned trial court, after trial, passed a preliminary decree on 19-7-2006, whereby the respective shares of the parties to the suit were determined and joint properties were identified by exclusion of the property noted as against 2(iv) in the plaint and a local commission was appointed to give a report, after inspection of the suit properties, subject-matter of the partition, not only with regard to their market value but also their partability or otherwise.

6. Defendants Nos.1, 4 and 5, who contested the suit, challenged the preliminary decree as was passed by the learned trial court by means of the present appeals.

7. The plaintiff or other defendants, however, neither has filed any separate appeal or cross-objection challenging the exclusion of property mentioned at serial No.2(iv) in the plaint from the effect of preliminary decree passed by the learned trial court.

8. In support of the appeals, the learned counsel for the appellants has reiterated his version as was taken in the written statement, whereas, the preliminary decree has been defended by the respondents.

9. Ex.P.1 is a document, which was admittedly written by the elder of the family, namely, Haji Abdul Ghafoor, wherein all the joint properties, left by Sheikh Iqbal Hussain, were subject-matter of the considerations and deliberations made by the said Punchayat, wherein, it has specifically been noted that all the five brothers have consented to the partition of the properties mentioned therein. This document contains signatures of all the legal heirs of deceased Sheikh Iqbal Hussain, including the contesting defendants; however, they have tried to wriggle out from their signatures over the said document by stating that their signatures were obtained on a blank paper, whereas, neither, from any other evidence nor from perusal of Exh.P.1, such stance of the said defendants got any support.

10. PW.1-Saeed Ahmad, when appeared in the witness box, was cross-examined by the contesting defendants and during that process, on a question put by the cross-examiner, said witness made a statement that for purchase of the suit properties, father of the parties to the suit i.e. Sheikh Iqbal Hussain, provided all finances. Such stance brought on record during process of cross-examination is meaningful and depicts the case of the defendants; therefore, it would be deemed as an admission by the defendants in regard to each property, subject-matter of the suit. It was Sheikh Iqbal Hussain, predecessor-in-interest of the parties to the suit, who invested and, thus, after his death, same became a part of the joint pool of the properties, to be partitioned amongst the parties to the suit according to their respective shares.

11. Mohammad Mahmood-defendant No.1 appeared as DW.4 and in acceptance of Exh.P.1, findings of the Punchayat, deposed as under:--

12. Sheikh Shabbir Ahmad, defendant No.3, although filed a conceding written statement, but subsequently by resiling from the said concession, appeared in the witness box as DW.5 and made a statement completely in negation to his version taken in the written statement. According to the principles of pleadings and evidence, his such stance, which is violative to his own pleadings, cannot be looked into, even after resiling from his stance taken in the written statement, when he appeared as DW.5 has made some disclosures, which are relevant. He admitted that the elders, who assembled as a Punchayat got the signatures of the parties on a blank paper and Ex.P.1 was admitted as that of such blank paper. He further stated that the members of said Punchayat reduced their decision on some other paper, which will be produced later on (however it is a fact that no other paper was produced by any of the defendants). With regard to the commercial property, this witness admitted in clear terms that the same was still in the name of his father.

13. From the evidence available on record, it is thus clear that properties mentioned at serial No.2(i), 2(ii), 2(iii), and 2(v) are joint in nature in between the parties to the suit and the preliminary decree passed by the learned trial court determining the shares of the parties and identifying the joint properties, has been passed in accordance with law and the appeals filed thereagainst have no merits. The same are, therefore, dismissed by maintaining the preliminary decree.

14. The learned trial court is directed to proceed with the matter from the stage, when it was stopped and a local commission be directed to proceed with the directions, as were noted in the impugned judgment.

15. We are going to modify the reference noted at serial No.2, whereby the local commission was directed to report as to whether the properties, which were held as joint properties amongst the parties to the suit, were liable to be partitioned or not. The learned trial court has, itself, held that the said properties were liable to be partitioned and it was not the job of the local commission to determine the liability of the properties to be partitioned. The local commission is to see the partability or otherwise of the joint properties according to their respective shares; therefore, such reference is modified and would be read as under:- "Whether the properties mentioned-above are partable or otherwise and if partbale, the mode of partition be also suggested along with the plan according to shares of the parties".

16. With these observations, both the appeals stand dismissed. AG/M-328/L Order accordingly.