2017 CLC 152 Gilgit Bbaltistan Chief Court
2017 C L C 152
[Gilgit-Bbaltistan Chief Court]
Before Muhammad Alam, J
SHER SALAM through L.Rs. and another----Petitioners
Versus
SHER ALAM and 8 others----Respondents
Civil Revision No.54 of 2014, decided on 11th April, 2016.
Civil Procedure Code (V of 1908)---
----O. I, R.3--- Non-impleadment of necessary party---Effect---Forefathers of the parties were co-shares in the suit property but they had not impleaded other legal heirs in the suit who were necessary party---Both the courts below had not applied judicious mind to the circumstances of the present case---Present suit had been decided summarily---Impugned judgments and decrees were result of mis-reading of evidence---Judgments and decrees passed by both the courts below were set aside and case was remanded to the Trial Court with the direction to implead other legal heirs of the parties and decide the same on merits---Revision was allowed accordingly.
ORDER
Raja Shakeel Ahmed for Petitioners.
Mohammad Jan and Rehmat Karim for Respondents.
Date of hearing:11th April, 2016.
MUHAMMAD ALAM, J.--- This is a civil revision petition against judgment/decree dated 12-4-2014 passed by the learned District Judge Ghizer, whereby, the said first appellate court accepted appeal (CFA No.85/2013) and set aside the judgment/order dated 13-11-2013 passed by the learned Civil Judge Punial/Ishkoman in Civil Suit No.109/2013.
2.Through Civil Suit No.109/2013, respondents/plaintiffs prayed for a decree to the effect that suit land described in the plaint be declared as ownership of the respondents and also sought possession of the same. Learned trial court completed all trial proceedings and dismissed the suit through order dated 13-11-2013. Feeling aggrieved from the same, respondents filed CFA No.85/13 in the first appellate court of District Judge Ghizer, who passed the following order/decree:--
"In view of my findings on issues Nos.1 to 6 and what has been discussed above, this appeal is accepted. Consequently, the impugned judgment dated 13-11-2013 passed by the learned Civil Judge 1st Class Punial/lshkoman is set aside and the suit of the appellants/plaintiffs is decreed as prayed for. Record and proceedings of trial court along with certified true copy of this judgment be returned to the trial court forthwith. File after necessary completion be consigned to record."
3.I have heard learned counsel for parties and have gone through the material available on file. In the
1 of 22/22/2018, 12:56 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017G201
case in hand, admitted state of affairs between the parties operates very important role. Relationship between the parties is not disputed. In para No.2 of the plaint, respondents have set out their bases of the suit. It is not disputed that initially forefathers of the parties were co-sharers of the lands described in the plaint and out of which respondents are entitled to one-fourth (1/4th), if other co-sharers, who are the real aunts of parties to the case are excluded from any share. Respondents did not implead three real aunts of the parties to the case as they were deprived of any share in the property described in the plaint, per the then prevailed customary laws. Respondents also did not implead one Mayoon, who was admittedly step-brother of petitioners Nos.1 and 2, to the case as he handed over the lands of the respondents to them without any dispute etc. From plain perusal of contents of paras Nos.1 to 3 of the plaint and parawise replies thereto, it is evident that parties are not at dispute about the said contents. Contents of paras Nos.1 to 3 contained the real and important questions of dispute between the parties. Para No.4 of the parawise written statement contains the defense of petitioners. In para No.4 of parawise written statement, petitioners have averred that father of respondents had forgone from his right in the suit property and migrated from his native village in Ishkoman.
4.So, title of father of respondents in the suit land as co-sharer of the father of petitioners is admitted but at the same time, petitioners have averred that the said person had forgone from his title to the suit land and migrated from his native village. In my opinion, in the said very peculiar and special circumstances of the case, burden of proof shifted to petitioners, and petitioners were bound to prove that respondents' father had forgone from his right in the suit land. So, the main question for determination is proof or otherwise of the forgoing of respondents' father from his right in the suit land. In this connection, I have found statements of two DWs, namely, Mr. Umar Yar (DW-1) and Mr. Nafas Ali Khan (DW-2), as evidence in proof of the above mentioned version of petitioners. I have gone through the statements of said two DWs and it is clear that the said statements are hearsay and not admissible in evidence.
5.Yet another important aspect of the case is that learned trial court did not decree the suit against defendant No.3, who has submitted written statement admitting all the contents of plaint as correct. It is also important to note that learned trial court did not pass any decree against defendants Nos.5 to 10, who did not produce any evidence except getting their statements recorded in the trial court. Defendants Nos.5 to 10 are the vendors of suit land and rest of the defendants/petitioners were bound to establish their title to the suit land and then only could sell out the same to defendants Nos.5 to 10. Learned first appellate court has passed impugned order after discussing only 6 (six) issues out of the 12 (twelve) issues while courts are bound to give their findings on all issues.
6.In the sequel of above circumstances, I am of the opinion that the learned two courts below have not applied their judicious mind to all the circumstances of the case and instead have summarily decided the case. I, therefore, hold that the impugned judgments/decrees of the two courts below are result of misreading of evidence and incorrect application of relevant laws. Petition accepted partly and both the orders of first appellate court as well the trial court are set aside. Petition is allowed accordingly and case is remanded to the trial court with direction to implead the aunts or their legal heirs of the parties and legal heirs of Mr. Mayoon. Trial court is further directed to conclude the trial of the case afresh within the shortest possible time. This file be consigned to record.
ZC/73/GBCase remanded.
[Gilgit-Bbaltistan Chief Court]
Before Muhammad Alam, J
SHER SALAM through L.Rs. and another----Petitioners
Versus
SHER ALAM and 8 others----Respondents
Civil Revision No.54 of 2014, decided on 11th April, 2016.
Civil Procedure Code (V of 1908)---
----O. I, R.3--- Non-impleadment of necessary party---Effect---Forefathers of the parties were co-shares in the suit property but they had not impleaded other legal heirs in the suit who were necessary party---Both the courts below had not applied judicious mind to the circumstances of the present case---Present suit had been decided summarily---Impugned judgments and decrees were result of mis-reading of evidence---Judgments and decrees passed by both the courts below were set aside and case was remanded to the Trial Court with the direction to implead other legal heirs of the parties and decide the same on merits---Revision was allowed accordingly.
ORDER
Raja Shakeel Ahmed for Petitioners.
Mohammad Jan and Rehmat Karim for Respondents.
Date of hearing:11th April, 2016.
MUHAMMAD ALAM, J.--- This is a civil revision petition against judgment/decree dated 12-4-2014 passed by the learned District Judge Ghizer, whereby, the said first appellate court accepted appeal (CFA No.85/2013) and set aside the judgment/order dated 13-11-2013 passed by the learned Civil Judge Punial/Ishkoman in Civil Suit No.109/2013.
2.Through Civil Suit No.109/2013, respondents/plaintiffs prayed for a decree to the effect that suit land described in the plaint be declared as ownership of the respondents and also sought possession of the same. Learned trial court completed all trial proceedings and dismissed the suit through order dated 13-11-2013. Feeling aggrieved from the same, respondents filed CFA No.85/13 in the first appellate court of District Judge Ghizer, who passed the following order/decree:--
"In view of my findings on issues Nos.1 to 6 and what has been discussed above, this appeal is accepted. Consequently, the impugned judgment dated 13-11-2013 passed by the learned Civil Judge 1st Class Punial/lshkoman is set aside and the suit of the appellants/plaintiffs is decreed as prayed for. Record and proceedings of trial court along with certified true copy of this judgment be returned to the trial court forthwith. File after necessary completion be consigned to record."
3.I have heard learned counsel for parties and have gone through the material available on file. In the
1 of 22/22/2018, 12:56 PM
Case Judgementhttp://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=2017G201
case in hand, admitted state of affairs between the parties operates very important role. Relationship between the parties is not disputed. In para No.2 of the plaint, respondents have set out their bases of the suit. It is not disputed that initially forefathers of the parties were co-sharers of the lands described in the plaint and out of which respondents are entitled to one-fourth (1/4th), if other co-sharers, who are the real aunts of parties to the case are excluded from any share. Respondents did not implead three real aunts of the parties to the case as they were deprived of any share in the property described in the plaint, per the then prevailed customary laws. Respondents also did not implead one Mayoon, who was admittedly step-brother of petitioners Nos.1 and 2, to the case as he handed over the lands of the respondents to them without any dispute etc. From plain perusal of contents of paras Nos.1 to 3 of the plaint and parawise replies thereto, it is evident that parties are not at dispute about the said contents. Contents of paras Nos.1 to 3 contained the real and important questions of dispute between the parties. Para No.4 of the parawise written statement contains the defense of petitioners. In para No.4 of parawise written statement, petitioners have averred that father of respondents had forgone from his right in the suit property and migrated from his native village in Ishkoman.
4.So, title of father of respondents in the suit land as co-sharer of the father of petitioners is admitted but at the same time, petitioners have averred that the said person had forgone from his title to the suit land and migrated from his native village. In my opinion, in the said very peculiar and special circumstances of the case, burden of proof shifted to petitioners, and petitioners were bound to prove that respondents' father had forgone from his right in the suit land. So, the main question for determination is proof or otherwise of the forgoing of respondents' father from his right in the suit land. In this connection, I have found statements of two DWs, namely, Mr. Umar Yar (DW-1) and Mr. Nafas Ali Khan (DW-2), as evidence in proof of the above mentioned version of petitioners. I have gone through the statements of said two DWs and it is clear that the said statements are hearsay and not admissible in evidence.
5.Yet another important aspect of the case is that learned trial court did not decree the suit against defendant No.3, who has submitted written statement admitting all the contents of plaint as correct. It is also important to note that learned trial court did not pass any decree against defendants Nos.5 to 10, who did not produce any evidence except getting their statements recorded in the trial court. Defendants Nos.5 to 10 are the vendors of suit land and rest of the defendants/petitioners were bound to establish their title to the suit land and then only could sell out the same to defendants Nos.5 to 10. Learned first appellate court has passed impugned order after discussing only 6 (six) issues out of the 12 (twelve) issues while courts are bound to give their findings on all issues.
6.In the sequel of above circumstances, I am of the opinion that the learned two courts below have not applied their judicious mind to all the circumstances of the case and instead have summarily decided the case. I, therefore, hold that the impugned judgments/decrees of the two courts below are result of misreading of evidence and incorrect application of relevant laws. Petition accepted partly and both the orders of first appellate court as well the trial court are set aside. Petition is allowed accordingly and case is remanded to the trial court with direction to implead the aunts or their legal heirs of the parties and legal heirs of Mr. Mayoon. Trial court is further directed to conclude the trial of the case afresh within the shortest possible time. This file be consigned to record.
ZC/73/GBCase remanded.
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