Partition of inherited property

2013 CLC 148 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

S. 42West Pakistan Land Revenue Act (XVII of 1967), Ss.53, 135 & 147Suit for declarationPartition of inherited propertyPlaintiffs prayed for declaratory decree on the basis of the claimed private partition

Both the Trial Court and Appellate Court below concurrently dismissed the suit, but High Court in second appeal decreed the same

Validity

Both the Trial Court and Appellate Court below discussed evidence produced by the parties in detail and recorded findings issuewise after due appreciation of the record and taking into consideration documents

High Court passed an ambiguous order merely on the basis of two documents, without appreciating and considering their contents

One of the two documents was neither a partition deed nor it operated among all the co-sharers or their total holdings in the different villages

Even if said document was treated as a deed of private partition, even then it did not attain finality or created any right because under S.147 of West Pakistan Land Revenue Act, 1967 all the partitions privately effected, were subject to affirmation by the competent Revenue Officer according to prescribed procedure

Second document was agreement to sell which would not create any right unless in furtherance of it, further agreed and required steps were taken and completed by the concerned parties

High Court had merely ordered that a decree as prayed in the original suit was granted and there was no mention of the subject-matter or the nature and type of the decree granted

Such ambiguous judgment and decree, according to the codal provisions, did not fulfil the legal requirement and could not sustain

Trial Court as well as Appellate Court below had recorded their findings after cumulative appreciation of all the available material

Judgments of both courts below were well reasoned and consistent with the principles of law, whereas High Court had not discussed whole evidence available on record

Impugned judgment of High Court, was set aside, that of both courts below, stood restored, in circumstances.