Form No. HCJDC/-121
ORDER SHEET
IN THE LAHORE HIGH COURT, RAWALPINDI BENCH
JUDICIAL DEPARTMENT.
C.R No. 337-D-2012.
Karam Elahi versus Mst. Zaitoon Bibi etc.
S.No. of order/ Proceeding
Date of order/ Proceeding
Order with signatures of Judge, and that of parties or counsel, where necessary.
23.04.2012 Mr. Khalid Mahmood Shahzaib Awan, Advocate learned counsel for the petitioner.
The petitioner has assailed the vires of judgment and decree dated 15.03.2012 passed by the learned ADJ, Attock, whereby an appeal filed by him against the final judgment and decree for partition dated 29.03.2011 passed by the learned Civil Judge, Attock, was dismissed.
2. The facts in brief as emerge on perusal of the record are that respondents No.1 and 2 filed a suit for partition of the property fully described in the head-note of the plaint. The preliminary decree was passed on 13.10.2010. Thereafter, Irfan Ullah Malik, Advocate, Attock was appointed as local commission before whom the parties entered into a compromise and on the basis of his report, the final judgment and decree were passed.The petitioner assailed the final judgment and decree before the learned District Court but his appeal was dismissed. It is urged that the learned local commission had not performed his duties in accordance with order dated 13.10.2010 of the learned trial court and had wrongly recorded the so called compromise between the parties;
C.R No.337-D-12 2
that the petitioner had not given any consent and infact if the judgment of the learned trial court is acted upon, the house of the petitioner would be demolished; that the disputed property has already been partitioned between 1965-70 and the judgments of both the courts below are not sustainable and that the inquiry should have been conducted as to whether the petitioner had infact made the statement about the mode of partition proposed in the report of local commission.
3. The contention that the property had already been partitioned and as such the impugned judgments & decrees are not sustainable, cannot be agitated in view of the fact that the petitioner had not assailed the preliminary decree. If the party to the suit for partition does not assail the preliminary decree then he cannot contend that the property was not divisible or the shares as determined in the preliminary decrees were not correct or the private partition had already taken place in view of the provisions of section 97 CPC. The next contention raised to the effect that the petitioner had not given consent before the local commission about the proposed partition is also against the record. The petitioner had not agitated at any stage that he was not present at the time of the proceedings conducted by the local commission. He had agreed to the proposed partition where-under 07-feet wide passage from the Havali of petitioner and others to the plot of the plaintiffs/respondents No.1 & 2 would be given and in lieu thereof the plaintiffs/respondents No.1 &
C.R No.337-D-12 3
2 would give 07-feet wide passage from the Northern side of their plot to the Western corner of the plot of the petitioner. All the parties in attendance including the petitioner had put their signatures or thumb impressions. The petitioner and others had agreed to give passage in exchange of the passage. This mode was not assailed by any one except the petitioner. The parties are litigating against each other for the last 16 years. The mode of partition, as approved by the learned trial court and upheld by the learned appellate court is equitable. For the above mentioned reasons, the concurrent findings recorded by two courts of competent jurisdiction do not call for any interference in exercise of revisional jurisdiction. The petition is without merits and the same is hereby dismissed in limine.
(RAUF AHMAD SHEIKH)
JUDGE
Approved for reporting.
Judge
Tariq
C.R No.337-D-12 4
ORDER SHEET
IN THE LAHORE HIGH COURT, RAWALPINDI BENCH
JUDICIAL DEPARTMENT.
C.R No. 337-D-2012.
Karam Elahi versus Mst. Zaitoon Bibi etc.
S.No. of order/ Proceeding
Date of order/ Proceeding
Order with signatures of Judge, and that of parties or counsel, where necessary.
23.04.2012 Mr. Khalid Mahmood Shahzaib Awan, Advocate learned counsel for the petitioner.
The petitioner has assailed the vires of judgment and decree dated 15.03.2012 passed by the learned ADJ, Attock, whereby an appeal filed by him against the final judgment and decree for partition dated 29.03.2011 passed by the learned Civil Judge, Attock, was dismissed.
2. The facts in brief as emerge on perusal of the record are that respondents No.1 and 2 filed a suit for partition of the property fully described in the head-note of the plaint. The preliminary decree was passed on 13.10.2010. Thereafter, Irfan Ullah Malik, Advocate, Attock was appointed as local commission before whom the parties entered into a compromise and on the basis of his report, the final judgment and decree were passed.The petitioner assailed the final judgment and decree before the learned District Court but his appeal was dismissed. It is urged that the learned local commission had not performed his duties in accordance with order dated 13.10.2010 of the learned trial court and had wrongly recorded the so called compromise between the parties;
C.R No.337-D-12 2
that the petitioner had not given any consent and infact if the judgment of the learned trial court is acted upon, the house of the petitioner would be demolished; that the disputed property has already been partitioned between 1965-70 and the judgments of both the courts below are not sustainable and that the inquiry should have been conducted as to whether the petitioner had infact made the statement about the mode of partition proposed in the report of local commission.
3. The contention that the property had already been partitioned and as such the impugned judgments & decrees are not sustainable, cannot be agitated in view of the fact that the petitioner had not assailed the preliminary decree. If the party to the suit for partition does not assail the preliminary decree then he cannot contend that the property was not divisible or the shares as determined in the preliminary decrees were not correct or the private partition had already taken place in view of the provisions of section 97 CPC. The next contention raised to the effect that the petitioner had not given consent before the local commission about the proposed partition is also against the record. The petitioner had not agitated at any stage that he was not present at the time of the proceedings conducted by the local commission. He had agreed to the proposed partition where-under 07-feet wide passage from the Havali of petitioner and others to the plot of the plaintiffs/respondents No.1 & 2 would be given and in lieu thereof the plaintiffs/respondents No.1 &
C.R No.337-D-12 3
2 would give 07-feet wide passage from the Northern side of their plot to the Western corner of the plot of the petitioner. All the parties in attendance including the petitioner had put their signatures or thumb impressions. The petitioner and others had agreed to give passage in exchange of the passage. This mode was not assailed by any one except the petitioner. The parties are litigating against each other for the last 16 years. The mode of partition, as approved by the learned trial court and upheld by the learned appellate court is equitable. For the above mentioned reasons, the concurrent findings recorded by two courts of competent jurisdiction do not call for any interference in exercise of revisional jurisdiction. The petition is without merits and the same is hereby dismissed in limine.
(RAUF AHMAD SHEIKH)
JUDGE
Approved for reporting.
Judge
Tariq
C.R No.337-D-12 4
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