' RAJA SAEED AKRAM KHAN. J.--- This appeal by leave of the Court has been directed against the judgment and decree passed by the High Court on 30.05.2013, whereby the appeal filed by the appellants, herein, has been dismissed.
2. The gist of the facts necessary for disposal of this appeal is that, suits were filed in the Court of sub Judge, Samahni on 14.12.1994, 09.01.1995, and 10.08.1995, regarding the land comprising servey No,320 mm (old), 729 (new), measuring 14 kanal, situate at Pind Jattan, Tehsil Samahni. The plaintiff-respondents, herein, filled two suits; one for possession along with perpetual injunction and the second for declaration, whereas, the third suit was filed by Muhammad Ayub and others for declaration and cancellation of gift-deed dated 31.12,1994. The trail Court consolidated all the suits and after completion of necessary proceedings, decreed the suits filed by the plaintiff- respondents, herein, whereas, dismissed the suit filed by Muhammad Ayub and others vide Judgment and decrees dated 30.03.2004. Against the aforesaid Judgment and decrees of the trail Court, the appellants, Muhammad Rasheed and others, filed an appeal in the Court of District Judge, Bhimber which was dismissed vide Judgment and decree dated 29.05.2007. Feeling aggrieved the appellants, herein, filed second appeal before the learned High Court which met the same fate. Hence, this appeal by leave of the Court.
3, Mr. Zaffar Hussain Mirza, Advocate, the learned counsel for the appellants, argued that the judgment of the Courts below are against law and the facts of the case. The Courts below failed to appreciate the record in a legal manner. He submitted that it is a case of misreading and non- reading of the evidence and in such like cases this Court has always intervened. He contended that the learned High Court failed to take into account that the trial court as well as first appellate Court has not taken into account the documentary evidence. i.e,, Misl-e-Haqiat, Exh.DA, in its true perspective. He strongly argued that after the death of Muhammad Aslam plaintiff, his legal heirs were not arrayed as party in the line of the plaintiffs. Thus, the suit to the extent of Muhammad Aslam had abated, but this important aspect of the case has been ignored by all the Courts below.
In continuation of the arguments, he submitted that the decree in favour of the appellants' predecessor, Faqir Muhammad and the present appellant, passed by sub Judge, Bhimber on 29.04.1984 was also available on record as Exh.DF, but the same has not been considered by the Courts below. He further added that in the light of Misl-e-Haqiat, Exh.DA, the share of the respondents in Shamilat Deh land only comes to 17 marlas, but this fact has not been considered by the Courts below. Moreover, a decree for the land measuring 14 kanal, bearing survey number 329 has been passed by the Civil Court in favour of the appellants on 29.04.1984, which has attained finality, therefore, the same could not be disturbed but the learned High Court fell in error while not taking into account this legal proposition.
4. On the other hand, Raja Saadat Ali Kiani, Advocate, the learned counsel for the respondents, strongly opposed the arguments advanced by the learned counsel for the appellants. He submitted that the judgment of the High Court is perfect and legal which is not open for interference by this Court. He added that the Courts below concurred with the matter after appreciating the material available on record in a legal manner. On Court's query, he admitted the fact that after death of Muhammad Aslam, the suit to his extent was abated as his legal heirs have not been arrayed as party in the line of the plaintiffs.
5. We have heard the learned counsel for the parties and gone through the record along with the impugned judgment. The controversy involved in the matter is admittedly regarding the Shamilat Deh land and according to the documents, i.e, Misl-e-Haqiat, Exh.DA and the decree passed by the Civil Court in favour of the appellants dated 29.04.1984, .Exh.DF, referred to and heavily relied upon by the learned counsel for the appellants, nothing is spelt out that the land in question was properly partitioned and the shares according to the entitlement of the inhabitants have been determined. It is well settled principle of law that the declaration cannot be claimed on the basis of possession over the Shamilat Deh land until and unless the same is partitioned and specific certificate by the Collector is granted. Moreover, it is also now settled that no decree of ownership regarding the Shamilat Deh land on the basis of any agreement by a private person or cognovits can be granted. Our this view find support from a case reported as Raja Asmatullah Khan V.
Qudratullah and another [2014 SCR 1537] wherein, it has been observed that:-- "13. Although the decree dated 26.7.1995 attained finality against the judgment debtor and the respondents herein but his finality is not absolute as the nature of the land, subject matter of the decree is Shamlat Deh land. The appellant, decree-holder has been proved to be land owner in the village. Thus, he is entitled to Shamlat land according to his proportionate share. This Court has already enunciated principle of law in number of cases that the decree of ownership regarding the Shamlat land on the basis of the agreement of a private person on cognovits cannot be granted. In this regard an authoritative judgment is reported as Khalid Hussain and 3 others v. Haji Muhammad Rafique and another 12008 CLC 1737] relevant portion of which reads as under:- "21 The proposition was again considered by a learned Judge of this Court who subsequently rose to the prestigious office of Chief Justice of Azad Jammu and Kashmir in PLA No,68 of 2006 decided on 23.6.2006 and reported as Walayat Khan v. Abdul Khaliq and others [2006 SCR 92]. In para 5 while holding that no declaration on title can be made on the basis of agreement-to-sell nor can a decree of title be granted in respect of Shamlat Deh without providing opportunity of hearing to other co-owners. It was held in para 5 of the judgment as below:- "5. No doubt that the learned District Judge while deciding the appeal of petitioner has not recorded his findings on each issue as is postulated under Order XX, rule 5 of the Code of Civil Procedure but in this case without seeking amendment in the first suit, two more suits were filed.
The total acreage of Shamlat-deh land is 316 kanal, out of which only 7 kanals of land is in dispute but its boundaries were not mentioned in any suit so that the same may become ascertainable as was the purpose of law. On imaginary grounds the declaration was sought. In these circumstances no error was committed by the learned Judge in the High Court while ignoring this objection raised by the learned counsel for the petitioner as that would not make any difference even if the case would have been remanded to the District Judge. This practice would have just dragged the parties to further litigation without any useful purpose. No declaration of title can be made on the basis of agreement-to-sell nor a decree of title can be granted in respect of Shamlat-deh land unless all the co-owners are given chance to contest on merit the suit of the plaintiff claiming rights exclusively or himself' ."
' Thus, following the enunciated principle of law, we observe here that no title or ownership shall be conferred upon the appellant through the decree dated 26.7.1995. However, he is entitled to retain possession subject to the legal partition of the village in Shamlat land according to law and the decree shall only be final against the judgment debtor and respondent herein in the light of hereinabove stated reasons and facts."
Furthermore, having limited jurisdiction regarding the Shamilat Deh land, the Civil Court Cannot grant permanent injunction against all the share-holders who possess the land in the estate as well. After partition of the Shamilat Deh land, if anybody is in the possession of the land in excess of his legal share, then legal proceedings can be initiated whereas, in the case in hand, the position is quite different as the basic foundation, i.e, legal partition of land, is not available; therefore, the superstructure built shall automatically fall. In another case reported as Barkat Ali and another v.
Sultan Mehmood and 18 others [2009 CLC 899] while dealing with the proposition this Court obseived as under:- "10. From the pleading of the parties as well as the judgments recorded by the lower Courts it appears that the suit land is admittedly Shamlat Deh, about which the Civil Courts have limited jurisdiction and admittedly cannot grant permanent injunction against all the share-holders who possess the land in the estate as well. Similarly unless the Shamlat Deh land is partitioned by metes and bounds by the Revenue authorities no specific share can be declared to be in possession of any landowner. In this view of the matter we modify the judgment recorded by the trial Court in favour of the respondents by holding that the judgment recorded by the trial Court shall be inter- party and not enforceable against other share-holder in the Shamlat nor shall the same be binding on the Revenue authorities who have jurisdiction to work out the share in Shamlat according to the holding of land owners in the village or estate."
' After taking into account the principle of law enunciated in the supra cases, we are of the view that the documents referred to and relied upon by the appellants do not create any such right on the basis of which the decree for declaration of permanent injunction can be granted against the other share-holders until the Shamilat Deh land is partitioned among the share-holders. Therefore, the arguments in this regard are not convincing in nature and are hereby repelled.
6. While attending the point raised by the learned counsel for the appellants regarding the abatement of suit to the extent of the share of Muhammad Aslam, plaintiff, who died during the pendency of the case, it may be stated that there is no second opinion in this regard that if the legal heirs of deceased, plaintiff, are not arrayed as party, the suit to his extent will automatically be abated and this fact even has not been denied by the learned counsel for the respondents.
However, as we have held that the suits without partition of the Shamilat Deh land, in the present form, were not competent, therefore, any findings regarding the abetment of the suit will be immaterial and mere of academic discussion.
7. As we have concluded in the preceding paragraphs that no decree for declaration of title can be passed regarding the Shamilat Deh land, therefore, the impugned judgment and decrees of the courts below are hereby set aside, as subject matter of the decrees is Shamilat Deh land. However, it may be observed here that if a share holder is in possession of land in dispute he cannot be dispossessed until and unless the Shamilat Deh land is partitioned. Moreover, after legal partition, if anybody is found in the possession of the land in excess of his legal share then the aggrieved party may approach the proper forum for redressal of his grievance.
With the above observations, this appeal stands disposed off. No order as to costs.