Stereo. H C J D A 38.

Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT

C.R.No.65290/2019

Mst. Zahida Begum VERSUS Ashfaq Ahmed and others

JUDGMENT

Date of Hearing 21.11.2019

Petitioner by: Mr. Ahmad Waheed Khan, Advocate
Respondents No.1 Chaudhary Muslim Abbas, Advocate
and 9 by:

Respondents No.5 Mian Mohsin Mahmood, Advocate

and 6 by:

Respondent No.7: In person

Respondent No.8 by: Mr. Mohammad Usman, Advocate

MAMOON RASHID SHEIKH, C.J. – Through this revision

petition filed under Section 115 of the CPC the petitioner has challenged

the order, dated 04.07.2019, passed by the learned Civil Judge, Ist Class,

Lahore, whereby respondents No.5 & 6’s application under Order VI,

Rule 15, of the CPC has been allowed.

2. The facts relevant for the present purposes are to the effect that, on

27.05.2016, the petitioner filed a suit for administration and partition of

the immovable assets left by the parties’ common ancestors, namely Haji

Ghias Muhammad and Ruqqia Khanum. It was maintained that besides

the property commonly known as 9-Lytton Road, Lahore, which

comprises of Plots No.9, 10, 11 and 10-A, there were other properties

and immovable assets left behind by the common ancestors of the

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parties, which required to be administered and to be partitioned. The

suit kept on pending due to filing of various miscellaneous applications.

Respondents No.5 and 6 instead of filing the written statement filed an

application under Order VI, Rule 15 of the CPC, for deletion of plot

No.10 from the list of the properties in question, on the ground that plot

No.10 had been gifted by Haji Ghias Muhammad, to his son, namely

Naeem Rashid (the predecessor-in-interest of respondents No.5 and 6)

through a registered gift deed, bearing document No.7716, bahi No.1,

Jild No.3761, registered with the Sub Registrar, Lahore on 10.07.1963.

The petitioner resisted the application by denying respondents No.5 and

6’s claim to the property and stating that Haji Ghias Muhammad had not

made any gift of plot No.10 in favour of Naeem Rashid nor did he divest

himself from the title of plot No.10 during his lifetime. It was further

maintained that Haji Ghias Muhammad had been in exclusive possession

of whole of the property commonly known as 9-Lytton Road, Lahore,

till he died on 20.03.1996. It was further maintained that neither Naeem

Rashid nor his legal heirs ever occupied plot No.10, therefore, the

application was liable to be dismissed. The learned trial Court, however,

through the impugned order, dated 04.07.2019, allowed the application

by inter alia holding that:-

“registered gift deed is neither challenged nor

cancelled by any competent forum, so, in view of above

said discussion, the petition mentioned at serial No.2 is

accepted, and plaintiff is directed to file amended plaint

after striking out property/plot No.10 from the plaint.”

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Mst. Zahida Begum vs. Ashfaq Ahmed and others

3. The learned counsel for the petitioner submits that the impugned

order is not sustainable in the eye of the law because it falls beyond the

scope of Rule 15 of Order VI of the CPC. Further submits that in

presence of the reply of the petitioner whereby she had denied the

factum of the gift and the existence of the gift deed, the passing of the

impugned order was the result of illegal exercise of jurisdiction

inasmuch as the acceptance of the application amounts to granting a

decree to respondents No.5 and 6 without any trial.

4. Further submits that the learned trial Court has committed a

jurisdictional error, in that, Section 8 of the Punjab Partition of

Immovable Property Act, 2012, has been violated. The said Section

makes it incumbent upon the Court to decide and determine the question

of title in the immovable property in question and such a decision is to

be deemed to be a decree in terms of the CPC.

5. Further submits that respondents No.5 and 6 have failed to file a

written statement despite the passage of three (3) years from the filing of

the suit. Contends that without filing a written statement and laying a

claim over plot No.10 by respondents No.5 and 6, no order in respect of

deletion of plot No.10 from the list of the properties in question could

have been passed.

6. The learned counsel for respondents No.5 and 6 supports the

impugned order. Submits that in absence of a challenge to the registered

gift deed, dated 10.07.1963, in favour of Waseem Rashid, the claim of

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Mst. Zahida Begum vs. Ashfaq Ahmed and others

the petitioner and others to the effect that plot No.10 was part of the

properties left by the ancestors of the parties was not maintainable.

7. Further submits that the denial by the petitioner in her reply to

respondents No.5 and 6’s application does not meet the requirement of

the law, in that, separate proceedings were required to be initiated to

challenge the registered gift deed.

8. Further submits that it is a suit for administration of property.

Contends that in such a suit the question of title to property claimed by

any heir in his own independent right could not be decided in an

administration suit.

9. Further submits that the petitioner is estopped from bringing the

instant petition as in pursuance of the impugned order the petitioner has

already filed the amended plaint by striking out plot No.10 from the list

of properties in question.

10. The learned counsel for respondent No.8 adopts the arguments of

learned counsel for respondents No.5 and 6.

11. Respondent No.7 also adopts the arguments of the learned counsel

for respondents No.5 and 6.

12. Relies on the judgments reported as “Mt. Shafi-ul-Nisa vs. Mt.

Fazal-ul-Nisa” (A.I.R. (37) 1950 (East) Punjab 276), “Syed Mehdi

Hussain Shah vs. Shadoo Bibi and others” (PLD 1962 Supreme Court

291), “Muhammad Sarwar and 2 others vs. Abdul Lateef and another”

(PLD 1978 Lahore 391), “Muhammad Younus Qureshi and 5 others vs.
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Mst. Zahida Begum vs. Ashfaq Ahmed and others

Mrs. Feroz Quraishi and 2 others” (1982 CLC 976), “Syed Mohsin Raza

Bukhari and 4 others vs. Syed Azra Zenab Bukhari” (1993 CLC 31),

“Mst. Ghazala Zakir vs. Muhammad Khurshid and 7 others” (1997

CLC 167), “Muhammad Amin vs. Muhammad Yasin and another

through Legal Heirs” (PLD 2001 Lahore 242) and “Mrs. Bilquis

Mohsin Butt and 3 others vs. Muhammad Mahmood Butt and 15 others”

(2015 CLC 1333).

13. The learned counsel for the petitioner reiterates his earlier

arguments and submits that there is no estoppel against law. Moreover,

the amended plaints filed by the petitioner have been rejected by the

learned trial Court on one ground or the other by maintaining that they

were not filed as per the impugned order, dated 04.07.2019.

14. Heard. Record perused.

15. It is observed that Rule 15, of Order VI of the CPC provides that

the Court may at any stage of the proceedings order to be struck out or

amended any matter in any pleading, which may be unnecessary or

scandalous or which may tend to prejudice, embarrass or delay the fair

trial of the suit. Respondents No.5 and 6 have tried to make use of this

provision of law for deletion of plot No.10 from the list of the properties

in question by maintaining that plot No.10 was transferred to Naeem

Rashid by way of a registered gift deed by Haji Ghias Muhammad, in

the year 1963. The petitioner on the other hand through her reply to

respondents No.5 and 6’s application not only denied the factum of gift

deed but also the existence of the gift deed. In such circumstances, I
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find that the learned trial Court erred in law in ordering deletion of plot

No.10 from the list of properties in question without framing of issues

and recording of evidence on this disputed question of fact.

16. Whilst making the above observation. I am mindful of the fact

that the learned counsel for respondents No.5 and 6 and the learned

counsel for respondent No.8 and respondent No.7 have maintained that

since it is a suit for administration of property, therefore, the question of

title of a property claimed by a legal heir cannot be determined within

these proceedings. I am, however, not in agreement with the said

argument for the simple reason that the petitioner’s suit is not a suit for

administration alone. It is also a suit for partition of property. The

petitioner in the title of the suit as also in the body of the plaint has time

and again prayed for partition of the properties in question. The Court

under the law has to examine the pleadings as a whole and not in

isolation. It is settled law that the Court can mold its relief according to

the contents of the plaint.

17. The law governing partition of immovable property is the Punjab

Partition of Immovable Property Act, 2012. Section 8 of the Act is

relevant for the present purposes. It provides as under:-

“(1) When there is a dispute as to the title or share in the

immovable property, the Court shall decide such question before

proceeding further in the suit under this Act.

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(2) The determination of a question of title or share of

the immovable property by the Court under subsection (1) shall be

deemed to be a decree in terms of the Code.”

18. In view of the above explicit provision of law, in presence of a

dispute as to the title in plot No.10, the learned trial Court was duty

bound to first decide the said dispute by framing of issues and recordal

of evidence, before proceeding further in the matter. The learned trial

Court has, therefore, exercised its jurisdiction illegally and with material

irregularity by ordering deletion of plot No.10 from the list of properties

in question without going through the above exercise mandated by law.

19. As to the objection of estoppel raised by the respondents, suffice it

to say that I am in agreement with the learned counsel for the petitioner

that there is no estoppel against law. Moreover, his contention as to the

rejection of the amended plaints by the learned trial Court is also borne

out from the record. The respondents have been unable to establish

otherwise. It is, therefore, held that the petitioner is within her rights to

bring the instant petition.

20. It is further observed that even though the suit was filed in the

year, 2016, respondents No.2 to 8 have not filed their written statements.

The non-filing of written statements by the said defendants/respondents

is such a lapse which can be taken note of in the exercise of the

supervisory jurisdiction of this Court with the result that the defence of

respondents No.2 to 8 can be struck of. However, in the best interest of

the parties and to meet the ends of justice such an action is not proposed.
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21. The impugned order, dated 04.07.2019, is accordingly set aside

and the application under Order VI, Rule 15, of the CPC filed by

respondents No.5 & 6 is hereby dismissed.

22. The parties are directed to appear before the learned trial Court on

17.04.2020, without further notice. Respondents No.2 to 8 shall be

given thirty (30) days’ time from the said date to file their written

statements raising therein all the legal and factual pleas which are

available to them.

23. The learned trial Court shall then proceed to decide the suit

expeditiously but no later than seven (7) months from the said date,

under intimation to the Deputy Registrar (Judl.) of this Court.

24. The record of the case, which was requisitioned on the last date of

hearing, be remitted forthwith to the learned trial Court.

There is no order as to costs.

(CHIEF JUSTICE)

Announced on _________

(CHIEF JUSTICE)

Approved for reporting.

Ishtiaq