Suit for declaration and partition

2024 CLC 311 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 8 & 42Suit for declaration and partitionGift/hibaRelinquishment of shareProofFather of the respondent No. 1 and applicants was owner of land measuring 92 acres (suit land), who passed away

Respondent No. 1 had claimed that applicants 1 and 2 were in possession of suit land, cultivating and enjoying the yield from the suit land, without paying respondent No. 1 his rightful share

Suit was decreed by the Trial Court in favour of respondent No. 1

Applicants filed appeal against the judgment and decree passed by the trial Court but same was also dismissed

Validity

Record showed that the findings of the appellate Court were based on the oral evidence of Revenue Officials and produced documentary evidence viz: mutation entries in the record of rights of respective Dehs

Applicants were unable to point out any illegality committed by the appellate Court in exercising its jurisdiction vested under the law

Only contention was that respondent No. 1 had already received his due Shariah share from the estate of deceased by way of Hiba/Gift during his lifetime, thus he was not entitled to any share as claimed in the suit

In that regard, the applicants had failed to produce pictorial evidence to show that the respondent No. 1/plaintiff relinquished his Shariah share in the suit land through Gift/Hiba in the residual estate left by the deceased

Diversely, scanning of the documentary evidence i.e. mutation entries did not reflect that respondent No. 1 had abdicated his share in suit land on the basis of said Gift/Hiba

In absence of a valid gift or relinquishment of lawful share in an inheritance under Muslim Personal Law, it could not be said whether the respondent No. 1/plaintiff relinquished his share in subject property

Suit of the respondent No. 1 was rightly decreed

Revision petition was accordingly dismissed.

2019 CLC 1291 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S. 42Suit for declaration and partitionShamilat DehEffectLand in question was Shamilat DehNothing was on record with regard to names or shares of the sharers of suit landCivil Court had limited jurisdiction with regard to Shamilat Deh land

No specific share could be declared to be in possession of any land owner unless Shamilat Deh land was partitioned by metes and bounds by revenue authorities

Shamilat Deh land whenever divided was to be divided in accordance with ancestral shares of the proprietors amongst them

Other residents of the village, occupants of land or tenant at will or even the owner of land who acquired ownership right as Malik-Qabza would not be entitled to any share in the common property of village Shamilat

Trial Court had passed decree against law in favour of plaintiffs

Impugned judgments and decrees passed by the Court below were not sustainable which were set aside

Revision was disposed of accordingly.

2018 CLC 87 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S.32 & O. XVI, R.10(3)Specific Relief Act (I of 1877), S.42Suit for declaration and partition

Plaintiffs moved application to summon private witnesses through the court as said witnesses did not turn up despite receiving notices

Application was dismissed by the Trial Court

Powers and discretion of Court to summon witnesses

Scope

Petitioners contended that the witnesses in question were material witnesses which were necessary to resolve the controversy

Respondents contended that Court had discretion to summon the private witnesses if it was satisfied

Validity

Order XVI, R.10, C.P.C.. stipulated that in case of failure of a witness and or to ensure his/her appearance, the court might issue a warrant, with or without bail, for the arrest of such person, and make an order for the attachment of his/her property to such amount as it thought fit

In the present case, no order was passed by the trial court under sub-Rule (3) of R.10 of O.XVI or S.32, C.P.C.

High Court observed that Court of law was not a silent spectator and was supposed to act vigilantly in order to unearth the truth with the subject to resolve the controversy between the parties once for all

Trial Court, in the present case, had failed to realize that conferment of jurisdiction over it was not to rubber stamp the contention of the respondent

Legislature in its wisdom had inserted the provisions and bestowed the court with power to save the litigants from unnecessary hardship, expenditure and multiplicity of litigation

Casual or perfunctory exercise of jurisdiction, or refusal to exercise the vested jurisdiction would tend to defeat the purpose of conferment of jurisdiction upon the court, which would ultimately lead to injustice

Record showed that initially the names of purported witnesses were mentioned in the list of witnesses and summonses/ notices were also served upon them and after their refusal to appear before the court, the Trial Court was not only empowered to issue warrants of said witnesses with or without bail (surety bond) but was also empowered to pass orders for attachment of their moveable and/or immoveable properties in order to enforce their appearance

Impugned order passed by the Trial Court was set aside and the application filed by the petitioners under O.XVI, R.10(3), C.P.C. was accepted

High Court directed the Trial Court to issue warrants of arrest of the purported witnesses without any further loss of time

Trial Court was directed to proceed with the matter on weekly basis and no unnecessary adjournment would be granted to either side and High Court desired that the litigation between the parties would finally be decided preferably within six months after receipt of present judgment

Revision was accepted accordingly.