ROZI KHAN BARRECH, J.---- This appeal under section 96, C.P.C. has been filed by the appellants against the judgment and decree dated 25.06.201 1 ("impugned judgment" ) passed by learned Civil Judge-VI!, Quetta ("trial court ") whereby the suit titled by the respondent was decreed.
2. Briefly stated facts of the case are that the respondent No.1 filed a suit for declaration, cancellation of mutation entries, possession and permanent injunction against the appellants and responden t No.2 before the trial court with the averment that the respondent is owner of certain properties situated at Mohal Mian Khan, Tappa Kachi Baig, Tehsil City District Quetta and the same have been entered in the name of the respondent/plaintif f through inheritance, but the same have not been partitioned; that at the time of inheritance the respondent/plaintif f was minor and his other relatives and uncles were looking after the property , thereafter the appellants/defendants sold out some of the properties of respondent/plaintif f through stamp papers but also failed to hand over the due share of respondent/plaintif f, however the major share of property is still in the hands of appellants/defendants. It was further contended in the plaint that the appellants/defendants have no concern with the properties of the respondent/plaintif f but they are enjoying the benefits of the same as the predecessor-in-interest of respondent/plaintif f and the appellants/d efendants died in the early childhood of respondent/plaintif f and the appellants/defendants took the advantag e of orphanage and illiteracy; that when it came to the knowledge of respondent/plaintif f, he continuously demanded for partition of the properties but he was continuously ignored by appellants. It was further contended that appellants/defendants Nos. 1 to 14 wrongly and fraudulently sold out some portion of property to other people, which is entirely against the law and natural justice, therefore the respondent/plaintif f on several occasions approached the appellants/defendants and their predecessor-in-interest but they lingered on the matter from one pretext or the other .
The suit was contested by appellants/d efendants by means of filing written statements, denying the claim of respondent/plaintif f on legal as well as factual grounds. Out of pleadings of the parties the trial court framed the following issues: "1. Whether the suit of plaintiff is not maintainable in view of Legal Objections raise d by the defendant in his written statement from "A" to "H"?
2. Whether the plaintiff is owner/co-shares in the properties mentioned in the Para. No.1 of the plaint at Serial Nos.
1 to 4?
3. Whether the plaintiff is entitled for the relief claimed for ?
4. Relief ?"
After framing the issues the respondent/p laintif f produced four witnesses and lastly recorded his statement on oath before the trial court.
The appellants/defendants produced three witnesses and lastly got recorded their statements through their attorney namely Kamal-ud-Din. After hearing arguments of the parties, the learned trial court decreed the suit of the appellants, hence this appeal. None appeared on behalf of the respondent as such he was proceeded against ex- parte.
3. Syed Mumtaz Hussain Baqiri, Advocate for appellants contended that the suit filed by the respondent/plaintif f is hit by Section 172(2) (xviii) of the Land Revenue Act, 1967 he further contended that private partition, if any, does not determine legal rights of the co- sharers in an undivided landed property unless same is affirmed by an order of a Revenue Officer and the trial court did not consider this aspect of the matter . He further argued that the findings of the trial court with regard to issues framed, are based on misinterpretation and misconstruction of the evidence and the suit property was not in possession of the respondent/plaintif f and the property of respondent/plaintif f has already been sold out by one Kamaluddin as he has no share in the property in dispute.
4. We have heard the learned counsel for the appellants and have perused the available record. The question in the instant case is whether the respondent's suit is barred by Section 172(2) (xviii) of the Land Revenue Act, 1967 or the civil court has jurisdiction to adjudic ate upon it ? Answer to the above question is that as a question of title is involved in the case, therefore the civil court is the only forum, which can resolve the controversy after recording pro and contra evidence. No doubt, the according to ibid section of law, a civil court shall not exercise jurisdiction over a claim kr partition of an estate or holding or any question connected with or arising out of proceedings for partition, not being a question as to title in any of the property of which partition is sought but when a question of title is raised in a suit then the provisions of section 172(2)(xviii) of the Land Revenue Act, 1967 would not come in the way of a civil Court to decide the issue so raised by a plaintif f in his suit. What is a question of title and when it will arise? Question of title is the claim of a person as to his ownership in some property and it will arise when someone denies his right or interest in his property . It may include when due rights of a person are jeopardized by any mode of partition or order of a Revenue Of ficer.
In the instant case the plea of the respondent was that the property in question is inherited property but the same have not been partitioned by the other co-sharers. At the time of inheritance the respondent/plaintif f was minor and his other relatives and uncles were looking after the property and thereafter some of the property of the respondent/plaintif f was sold out through stamp papers but the share of the respondent/plaintif f were not handed over to him. Major shares are still in the hands of the appellants/defendants and the appellants/defendants finally refused to partition and hand over the possession of the property . In rebuttal the respondent/plaintif f took the ground that the property of the respondent/plaintif f was sold out by one Kamaluddin in the year 1945 and now the respondent/plaintif f has no share in the property and they are in possession of the property as owners.
5. In the backdrop of above, suit of the respondents, challenging the mutation entries, partition and possession of the suit property , squarely falls within the domain of a civil court because the private partition, as claimed, has created title and interest for the respondent in the disputed land which fact has been denied by the appellants/defendants. The denial can be resolved only by a civil court after recording pro and contra evidence qua the plea. Denial can be resolved only by civil courts after recording pro and contra evidence qua the plea.
Therefore, such a suit can only be entertained and decided by the competent civil court.
6. As far as the findings of the trial court with regard to Issues Nos. 2 and 3 are concerned to substantiate the issues relating to the question as to whether the respondent/plaintif f is sharehold er in the property in dispute or otherwise ? and that whether suit property which requires to be partitioned but the appellants/defendants are reluctant to do the same and deprived the plaintif f from his legitimate shares in the property in dispute. It is not disputed that the suit is for partition of the property on the ground of inheritance . It is also not disputed that the respondent/plaintif f is first cousin of the appellants/defends and father of the respondent/defendant and appellants/defendants were brothers and the suit property was left by forefathers of the respondent/plaintif f and the appellants/defendants.
7. The respondent/plaintif f also claimed possession of the property in dispute but the appellants/defendants denied the claim of the respondent/plaintif f and taken the ground that one Kamaluddin sold out the property of the respondent/plaintif f and he is not a co-sharer of the property iii dispute. Here the question arises that how the suit property went in the possession of the appellants/defendants despite no partiti on between the parties. In our opinion the defense of the appellants /defendants attained real importance, who denied the claim of the respondent/plaintif f, therefore the burden is shifted upon defendants to prove that whether Kamauluddin sold out the property of the respondent/plaintif f and he has no share in the disputed property . In this regard neither the defendants produced any documentary evidence nor oral evidence to establish that Kamaluddin sold out the property of the respondent/plaintif f.
8. DW-1 stated during cross-examination that the disputed property is inherited property of Rasool Bakhsh, Kamal Khan and Safar Khan through their father . He further stated during cross-examination that in his presence no partition of the property was carried out: that it is correct that after death of Akbar Khan (father of respondent/plaintif f) the suit property was in possession of Kamal Khan and Azad Khan (Kamal Khan, Saar Khan and Safar Khan are uncles of appellants/defendants).
9. In view of the above the appellants/defendants failed to prove that the share of the respondent/plaintif f was sold by one Kmal Khan. On the other hand the respondent/plaintif f produced Ex.P/1 and Ex.P/2 through PW-3. PW-2 being Patwari produced two documents on record. first document of Inteqal No. 32. Khewat No. 30 and Khatooni No. 30 produced on record as Ex.P/1 and Jamabandi. Khewat No. 29 and Khatooni No. 29 produced on record as Ex.P/2. Regarding the authenticity of both these documents PW-3 deposed in his statement that both these documents are correct according to their record. He further stated in his cross-examination that according to their record, the properties mentioned in Ex.P/land Ex.P/2 are collective and un-partitioned. In both these documents i.e. Ex.P/1 and Ex.P/2 the respondent/plaintif f Abdullah has been shown as owner/co-sharer of the properties mentioned therein. Both these documents reflect that the ownership and share of properties belong to respondent/plaintif f. The said documents were further corroborated with the ocular evidence produced by plaintif f in shape of PW-1 and PW-2. Therefore, in our considered view, trial court, after considering the oral as well as documentary evidence produced by the parties, has rightly passed the judgment and decree which do not warrant any interference by this court. Consequen tly, the appeal is dismissed accordingly . The parties are left to bear their own costs.