1. ' GHULAM MUSTAFA MENGAL, J---This appeal under section 96, Cr.P.C. Is directed against the judgment and decree dated 7-2-2002 passed by learned Senior Civil Judge, Pishin in Civil Suit No,91 of 2000, whereby suit filed by the respondents Nos.1 to 10 for declaration, possession, partition, cancellation of mutation entries and permanent injunction has been decreed.
2. ' Briefly stated facts of the case are that on 310-2000 the respondents Nos.1 to 10 filed a suit for declaration, possession, cancellation of mutation entry, partition and permanent injunction against the appellants and pro forma respondents Nos.11 to 15, claiming following relief:-- "(a) Declaring that plaintiffs are lawful owners of property, situated in Mahal and Mouza Bazar Nau Tappa Saddar Surkhab, Tehsil and District Pishin bearing Khewat/ Katooni Nos.64/65 total consisting of 7 Qitas bearing Khasra Nos.51/57/62 to 65 and 74 total consisting 311 rods 6 poles in which plaintiffs are owners to the extent of 18-2/3 shares.
(b) Declaring that mutation of Sehet Indiraj bearing No,730 in which share of predecessor i,e, 7-1/3 has been illegally carried out whereas on the basis of said illegal entry subsequent mutation entries carried out by way of Hiba and other mutation entries carried out on the basis of same is illegal and has no value in the eye of law, being product of fraud and misrepresentation.
(c) By way of mandatory injunction defendants Nos.9 and 10 be directed to partition the property and hand over its vacant possession to the extent of share as described in the body of plaint.
(d) By way of permanent injunction defendants be restrained not to interfere in the peaceful possession of plaintiffs, in the property more particularly described in the body of plaint.
(e) Any other relief which this Honourable Court may deems fit and appropriate in the circumstances of the case; and
(f) Cost of the proceedings may also be awarded in favour of plaintiffs and against the defendants in the interest of justice and equity.
3. ' The appellants filed their joint written statement and contested the suit on legal as well as factual grounds. It was contended that the predecessor of plaintiffs namely Mursaleen and defendants Nos.1 and 2 are real brothers while defendants Nos.3 and 4 are the sons of defendants No,2. It was further contended that some 33 years back they had jointly purchased the property in dispute from one Sultan Muhammad and Adnan Khan and thereafter they entered into a private partition about 22 years back and each one is in possession of his separate share and according to the private partition some of the properties are in the name of one party and possession thereof is in the possession of other party.
4. ' Out of the pleadings of the parties, learned trial Court framed the following issues:--- "(1) Whether the suit of the plaintiffs is not maintainable in view of preliminary legal objections "C" and "D" of the written statement of defendants Nos.1 to 4?
(2) Whether the plaintiffs are co-sharers in the suit land, and private partition has not taken place?
(3) Whether the mutation No,730 and other mutation entries carried out by way of Hibba are liable to be cancelled?
(4) Whether the plaintiffs are entitled to the relief claimed for?
(5) Relief?"
5. ' In support of their claim the parties led their respective evidence. The learned Senior Civil Judge, Pishin decreed the suit, vide judgment and decree dated 7-2-2002, hence this appeal.
6. ' We have heard the learned counsel for appellants as well as learned counsel for respondents Nos.1 to 10 and respondents Nos.11 and 12. Learned counsel for the appellants vehemently contended that the learned trial Court has not properly framed the issues arising out of the pleadings of the parties, and while passing the impugned judgment the learned trial Court has failed to give findings upon the issues in accordance with law and material available on record. He further contended that the learned trial Court while deciding issue No,2 has given a contradictory judgment by passing the decree for partition and has passed contradictory judgment, as such the judgment and decree impugned herein is bad in the eye of law thus the same is liable to be set aside.
7. ' On the other hand learned counsel Mr. Mehta W.N. Kohli, Advocate, for the respondents Nos.1 to 10 contended that the judgment of the learned Senior Civil Judge, Pishin is well reasoned and all the issues have been attended to, therefore, there exists no ground to interfere in the same.
8. ' The objection of the learned counsel regarding non-framing of proper issues by the learned trial Court has no force because the appellants/defendants have not filed any application for framing for proper issues before the trial Court during the proceedings of the case. Even now the learned counsel has not been able to point out as to what should have been the correct issues, which have not been framed by the trial Court and has prejudiced the appellants.
9. ' Coming to the next contention of Mr. Naeem Akhtar, Advocate learned counsel for the appellants that the learned trial Court while deciding issues has passed contradictory judgment for partition of the property in dispute. The contention of learned counsel has substance that the learned trial Court while deciding issue No,2 came to the conclusion that private partition has already been effected between the plaintiffs and defendants Nos.1 to 4 and in pursuance of said private partition both the parties are enjoying possession of property and admittedly cultivating the same, having installed boring and developed orchards. After coming to the said conclusion the learned trial Court decreed the suit as per prayer clause of the plaint and directed the defendants Nos.9 and 10 to partition the property in dispute and hand over the vacant possession to the extent of their shares, thus finding of the learned Senior Civil Judge, Pishin to the extent of partition being erroneous is liable to be set aside.
10. ' Resultantly, the judgment and decree dated 7-2-2002, passed by learned Senior Civil Judge, Pishin is upheld with the modification that the finding of trial Court with regard to partition of property in dispute is set aside.
11. ' With the above modification in the judgment and decree passed by Senior Civil Judge, Pishin the appeal is partly allowed with no order as to costs.