' CH. MUHAMMAD MASOOD JAHANGIR, J.---This civil revision under section 115 of the Code of Civil Procedure, 1908 calls in question ex parte judgment and decree dated 05.11.2012 passed by the learned trial court as well as judgment and decree dated 18.09.2014 delivered by the learned lower appellate court, whereby suit for possession through partition instituted by the petitioner and respondents Nos.5 to 11/plaintiffs was concurrently dismissed.
2. The factuality of the case is not under any dispute and admittedly as a result of protracted litigation decided upto the level of the apex court, Mst. Mumtaz Begum alias Taj Begum, mother of the petitioner and respondents Nos. 5 to 11 was declared one of the legal heirs of Muhammad Shafi (deceased) to inherit 1/6th share in his patrimony. In this round of litigations, the petitioner and other legal heirs of Mst. Mumtaz Begum through institution of lis in hand prayed for separate possession of their shares through partition of the joint properties detailed in the following schedule:--{{TABLE}} Sr. No, Khewat/ Khatuni Nos. Khasra No, Measurement of property I Nil Nil Seven shops bearing No,B- ix/751 II 341/581 481 04 Kanals 181/2 Marlas III 366/608 481 01 Kanal 18 Marlas IV 378/620 480 01 Kanal 13 Marlas V 379/621 474 11 Marlas VI 389/623 2380/962 01 Kanal 12 Marlas VII 381/623 2458/719 02 Kanals 02 Marlas VIII 877/1491 495 01 Kanal 06 Marlas IX 401/643 3354/230 02 Marlas X 401/643 3359/2390 03 Marla {{TABLE}}
3. To resist the suit, respondents Nos.1 and 2/defendants advanced their written statement and after settling issues, when the lis was fixed for evidence of plaintiffs, respondents Nos.1 and 2 avoided their appearance whereupon they were proceeded against ex parte and after recording ex parte oral as well as documentary evidence of the plaintiffs, the learned trial court dismissed the suit on the sole ground that qua commercial property mentioned at serial No, I ante, no proof of ownership could be brought on record, whereas rest of the properties were agricultural in nature and only the revenue forum could entertain the lis for the redressed of grievance of the petitioner/plaintiff, whose counsel also made a statement during the final arguments showing his intention not to press the suit to the extent of afore-referred properties. Despite assailing, the learned Additional District Judge maintained it while disallowing the appeal of the petitioner/plaintiff through judgment and decree referred in para. 1 ante.
4. It is argued by learned counsel for the petitioner/plaintiff that qua the jurisdiction of the Civil Court, no issue was framed by learned trial court and while dismissing the suit on the said score, learned trial court committed material irregularity and illegality; that without appreciating the un- rebutted ex parte evidence of the petitioner/plaintiff, especially copies of Record of Rights (Exh.P4 to Exh.P6), findings of learned trial court that except property detailed at serial No,I of the above schedule, rest of the properties were agricultural, is result of misreading and non-reading of evidence, and that if the courts below were of the view that the proceedings for partition were to be initiated before revenue forum, then at the most, plaint of suit of petitioner/ plaintiff could be returned, abut they were not obliged to decide the lis on merits.
5. Conversely, learned counsel for the respondents Nos.1 and 2/defendants has supported the impugned judgments and decrees while maintaining that the petitioner/plaintiff was estopped to further assail the same before this court after the statement of his counsel made before trial court during the course of final arguments that Civil Court has no jurisdiction to entertain a suit for possession through partition qua the agricultural property as it is specifically barred.
6. Arguments heard and record perused.
7. Two questions requiring determination in the instant /is are; firstly, whether Civil Court is equipped with jurisdiction to try and decide a suit for possession through partition qua the common agricultural and urban properties falling in joint holding of the parties and secondly whether an admission against the record and fact made at bar before a court of law is to be treated conclusive or not? There is no denial of the fact that only ex parte evidence of the petitioner/plaintiff is available on the lis file without any rebuttal thereof, whereas Exh.P4 is copy of Register Haqdaran Zameen and its perusal reveals that properties mentioned at serial Nos.II and VII of the schedule were shown to be "Ghair Mumkan Ahatas", whereas properties mentioned against Serial Nos.III to VI and VIII to X of the schedule ibid were mentioned as "Ghair Mumkan Makan", which totally skipped the sight of the two courts below and after its bird eye view has left nothing except to conclude that both the courts below without realizing the entries of the said document erroneously considered the said properties being agricultural. Moreover, respondents Nos.1 and 2/defendants filed C.M.No,1/ 2015 before this Court for vacation of stay and along with the same they also appended copies of sale deeds No, 3568 dated 08.6.2006, 5051 dated 21.7.2010 and 5576 dated 11.8.2010 qua the disputed properties, a perusal whereof reveals that those were attested while showing the properties being residential. So the documents of the respondents Nos.1 and 2/defendants brought on record during the proceedings of this civil revision itself have also affirmed the stance of learned counsel for the petitioner/plaintiff that the trial court erred in law while considering properties mentioned frat serial Nos.II to X of the schedule being agricultural.
When it is proved on record through the documents duly got exhibited during trial of the suit file as well as copies of sale deeds brought on instant file by respondents/defendants through the civil miscellaneous that most of the properties are of residential/commercial nature, then definitely the Civil Court being the court of ultimate jurisdiction is the sole forum to decide the lis brought before it. The argument of learned counsel for respondents Nos.1 and 2 while referring to a judgment dated 29.6.2016 of learned Division Bench of this Court passed in I.C.A. No, 1114/2016 that petitioner/ plaintiff is bound by the act of his counsel qua the admission made by him before trial court that suit qua properties mentioned at serial Nos.II to X would be filed by him before the revenue forum, was conclusive and as per principle of acquiescence, he is estopped to maintain the instant civil revision qua the said properties, is not tenable. No doubt, learned trial court while dictating the final judgment observed that learned counsel made aforementioned admission during the arguments, but admittedly neither his independent statement was recorded nor any specific order was spontaneously passed on the strength of such admission while returning the plaint. It is also not an intricate question to acquiesce the proposition that such an admission can be treated conclusive or not. It is settled principle of law that an admission, which is wrong in point of fact or is made in ignorance of legal right, has no binding effect on party to lis, even if it is made by an expert during the course of arguments before a court of law and in arriving at this conclusion, I am fortified by the dictum laid down in case titled as Ahmad Khan v. Rasul Shah and others (PLD 1975 Supreme Court 311), wherein it is observed as under:-- "Therefore, an admission which is wrong in point of fact or is made in ignorance of legal right, has no binding effect on the person making it. This is however, subject to two well recognized exceptions. First: such admissions become conclusive and are binding on a party making them only if it amounts to a representation on a matter of fact made to the other party, who in consequence of such representation has altered its position. When admission is thus acted upon by the party to whom it is made, it operates as estoppel and becomes in a way conclusive, inasmuch as the party making it is not then permitted to show that the admission was wrong.
Such admission is really hit by rule of estoppel in section 115 of the Evidence Act, 1872".
' And in the light of said dicta, if any wrong admission against the fact and record is made on part of a party or his counsel, that cannot be treated as conclusive or absolute.
8. I am also of the firm view that if a suit qua the cluster of properties is instituted before the Civil Court and in respect of anyone thereof, the said court possessed jurisdiction to try it, then obviously the same to the extent of other properties regarding which the said Court had no jurisdiction, could also be adjudicated upon by it being the court of ultimate jurisdiction. Moreover, it is an elementary principle that a plaint of a suit cannot be rejected or returned in piecemeal rather it can only be rejected if all the reliefs claimed by the plaintiff are barred under the law. In the case in hand, mostly residential/commercial properties are involved and among those if any of the property is found to be agricultural, but falling in the joint holdings of the parties requiring partition through separate possession, then plaint to such extent can neither be partially rejected/returned nor suit can be dismissed on the said score rather requires its adjudication and decision on merits as per law. So far as the last submission of Mr. Shezada Mazhar, Advocate, learned counsel for respondents Nos.1 and 2 that petitioner/plaintiff has already transferred his share falling in the joint holding, therefore, the instant Civil Revision has become in fructuous is concerned, suffice it to say that this is not an issue under the instant Civil Revision and any subsequent event, if happened, as per version of learned counsel for respondents Nos.1 and 2, then the same can be propounded before the court to whom the said suit is being remanded.
9. In view of the above discussion, I have no hesitation to hold that both the courts below have erroneously non-suited the petitioner/plaintiff through impugned judgments and decrees, which being nullity in the eye of law are not sustainable and the matter needs to be remanded to learned trial court for decision afresh on merits. Resultantly, this civil revision is accepted, impugned judgments and decrees are set aside and the suit of the petitioner/plaintiff will be deemed to be pending before learned trial court, who will decide the same afresh on merits within a period of four months positively. The parties are directed to appear before learned District Judge, Gujrat on 15.11.2016, who will entrust the main suit to the court of competent jurisdiction for further proceedings.