MUHAMMAD IJAZ KHAN, J.- Through the instant civil revision petition, the petitioner has challenged the judgement and decree of learned Additional District Judge-III, Nowshera, dated 25.04.2012, whereby, the appeal filed by the respondent was allowed and thereby set-aside the judgement and decree of the learned Civil Judge-VII, Nowshera, dated 25.03.2010, who vide the same had decreed the suit of petitioner/plaintiff.
2. Precisely, the facts of the case leading to the filing of the instant civil revision petition are that the present petitioner then plaintiff filed a suit against the respondents/defendants for possession through partition of his due share measuring 14 Marla in Khasra No. 437, as well as for issuance of perpetual, prohibitory, injunction to the effect that he is co-owner to the extent of 14 Marla out of the total area of 17 Kanal 7 Marla, in Khasra No. 437, which is still a joint property amongst all the co- owners and as such the petitioner/plaintiff sought the separation and possession of his shares from the said joint property, which suit was duly contested by the respondents/defendants and after recording of pro and contra evidence, a preliminary decree of possession through partition was passed in favour of the petitioner/plaintiff by the learned Civil Judge-VII Nowshera, vide judgement and decree dated 25.03.2010. Respondents /defendants considering themselves to be aggrieved of the aforesaid preliminary decree preferred an appeal to the Court of learned Additional District & Sessions Judge-III, Nowshera, which was allowed vide impugned judgement and decree dated 25.04.2012 who thereby set-aside the judgement and decree of the learned trial Court, hence, the instant petition.
3. Arguments of learned counsel for both the parties were heard in considerable detail and the record perused with their able assistance.
4. The contents of the pleadings as well as the evidence produced by both the parties were gone through which would show that it is the case of petitioner/plaintiff that he is a recorded co-owner to the extent of 14 Marla in Khasra No. 437, and as the said Khasra number is still un- partitioned/undivided therefore, he filed the instant suit for separation & possession of his aforesaid share. Record would also show that in support of his aforesaid plea, the petitioner had produced Patawari Halqa as PW-01, who has produced the Fard Jamabandi for the year 2004- 2005 as Ex.PW-1/I, mutation No. 7386 as well as mutation No. 7634 as Ex.PW-1/2 & Ex. PW-2/3 respectively. Record also shows that the said Patawari was again summoned by the trial court as court witness (C.W) and this time he produced Goshwara Malkiat of both the parties which was exhibited as Ex. C.W-1/2 and the field inspection report was also produced and exhibited as Ex.C.W- 1/3. The aforesaid revenue record being part of the evidence would show that Khasra No. 437 is measuring 17 Kanal 7 Marla and out of which the petitioner had purchased 14 Marla of land through mutation No. 7386 attested on 09.02.2006, which entries are still in-tact. The record further shows that through mutation No. 7634 attested on 14.09.2007, petitioner has sold his share in the shamilat only, therefore, the plea of the petitioner that he is recorded co-owner in the revenue record and that the suit Khasra number being un-partitioned is fully established from the record, whereas the plea of the respondents/defendants that the present petitioner had sold his share in the said Khasra number is unfounded as Patwari Halqa has admitted that as per the revenue record the petitioner had sold his share in the Shamilat only whereas, he is still recorded owner to the extent of 14 Marla in the subject Khasra number, therefore, the learned trial court had rightly granted a preliminary decree in favour of the petitioner/plaintiff, which has wrongly been reversed by the learned appellate Court.
5. During the course of hearing of this case, the impugned judgement of the learned appellate Court was gone through which reflects that he has carried out an exercise which ought to have been carried out at the stage of grant of final decree; The reasons and findings recorded by the learned Appellate Court bear an impact of final determination, which is yet to be worked out by the learned trial court at the stage of grant of final decree. It may be clarified that that there is an apparent distinction between a preliminary decree and a final decree, keeping in view their nature, purpose, and stage of proceedings, as at the time of a preliminary decree a suit is not completely disposed of but through the same certain rights or liabilities of the parties are declared leaving further proceeding to be carried out at the stage of the final decree as was done in the present case by the leaned trial court when it in a suit for possession through partition of the share of the petitioner has declared that petitioner is entitled for his share measuring 14 Marla in Khasra No. 437, whereas the rest of the exercise qua the separation and handing over of possession on the ground was left to be worked out during the course of passing of final decree.
6. In order to further substantiate the aforesaid legal aspect of this case Section 2(2) of the CPC would be relevant which defines a decree as well as Rule 18 of the Order XX CPC, which provides for passing of a preliminary decree in certain eventualities mentioned therein, they are reproduced as under: - Section 2 (2)"decree" means the formal expression of an adjudication which, so far as regards the Court expressing, it, conclusively determines the rights of the parties with regard to all or any matters in controversy in the suit an may be either preliminary or final. It shall be deemed to include the rejection of a plaint] [the determination of any question within section 144, or an order under rule 60, 98, 99, 101 or 103 of Order XXI] but shall not include-- (a). any adjudication from which an appeal lies as an appeal from an order, or (b). any order of dismissal for default.
Order XX Rule 18. Decree in suit for partition of property or separate possession of a share therein. --Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then, --
(1) If and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector debuted by him in this behalf, in accordance with such declaration and with the provisions of section 54.
(2) If and in so far as such decree relates to any other immovable property or to movable property, the Court may, if partition or separation cannot be convenient!), made without further inquiry, pass a preliminary decree declaring the e rights of the several parties interested in the property and giving such further directions as may be required.
The plain reading of the aforesaid provisions of law would show that a decree is a formal expression of an adjudication, which conclusively determines the rights of the parties with regard to all of any of the controversy in the suit and such decree may be preliminary or final and the explanation to sub-section (2) of Section 2 would further show that a preliminary decree is that decree in which further proceedings have to be taken before the suit is to be completely disposed of whereas final decree is that decree in which after adjudication it is completely disposed of.
Similarly, as per mandate of Rule 18 of Order XX where a decree relates to an immovable property or with respect to movable property, the Court may, if partition or separation could not be made conveniently without further inquiry then such court shall pass a preliminary decree declaring therein the rights of the parties interested in the property. In a case[1], the apex Court has observed that a preliminary decree is one which declares the rights and liabilities of the parities leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries conducted pursuant to the preliminary decree, the rights of the parties are fully determined and a decree is passed in accordance with such determination which is final. It may also be observed that a preliminary decree and a final decree are both distinct and independent entities. If a question arises as to whether a decree is preliminary or final, it has to be decided by a reference to the decree itself. A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final where such adjudication completely disposes of the suit.
Likewise, in a case[2] it was observed that normally, preliminary decree is passed when adjudication decides the rights of the parties with regard to all or any of the matters in controversy in the suit leaving room for further inquiry to be carried on. It does not completely dispose of the suit and it is passed in those cases in which the Court has to first adjudicate upon the rights of parties and it is succeeded by a final decree. It may be observed that the rights so determined from the preliminary decree are conclusive in nature and in that limited sense a preliminary decree is final; however, the Court then makes a further inquiry to settle all the issues and gives its final decision, which is a final decree. In the same way, in a case[3], the court has observed that preliminary decree and a final decree are both distinct and independent entities. According to the Explanation attached to section 2(2), C.P.C. a decree is preliminary when further proceedings have to be taken in the suit and the suit has not been completely disposed of.
7. Apart from the above, it was also noted that the learned appeal court has passed the impugned judgement and decree in a total vacuum as it has been observed by the learned appeal court that earlier the present petitioner had filed different suits in respect to the same Khasra number which are pending before different Courts against other person, however it has not made any reference of a single such suit with respect to its particular, its nature and their contents, therefore, such judicial order which is standing in a total vacuum could not be legally sustained.
8. It is also relevant to mention here that in this case the learned trial court has granted the decree in favour of the petitioner, whereas the appeal court has reversed the same, therefore, in cases where the judgement and decree of the two courts below are at variance, then this court in its revisional jurisdiction, shall determine and analyze that which judgment of the two is legally sustainable. It is also settled law that in case of inconsistency of the judgment and decree between the appellate Court and the trial Court, the High Court shall see that as findings of which of the Court are based on proper appraisal of evidence and as such in this case after analyzing and evaluating the evidence on file, the findings recorded by the trial Court are correct and are the result of proper appreciation of evidence In the case[4], it was held by the Apex Court that "in a case of inconsistency of judgment between the two Courts below the High Court was supposed to give its findings after reappraisal of the entire evidence. It was further held in the aforesaid judgment that the settled law in this regard is that revisional Court in such like situation has to re- appraise the entire evidence just to determine as to findings of which Court were based on proper appraisal of evidence and appreciation of law". In the case[5], it was held by the Apex Court that "if the finding of fact reached by the first appellate Court is at variance with that of the trial Court and as such the finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. This view is fortified by a long chain of judgments i.e. Alloo v. Sher Khan and others (PLD 1985 SC 382), Abbas Ali Shah and 5 others v.
Ghulam Ali and another (2004 SCMR 1342), Abdul Aziz v. Khuda Dad Khan (2004 SCMR 1046), Karim Bakhsh throw L.Rs. and others v. Jindwadda Shah and others (2005 SCMR 1518), Muhammad Din and others v. Mst. Naimat Bibi and others (2006 SCMR 586), Muhammad Hassan v. Khawaja. Khalil ur Rehman (2007 SCMR 576) and Q.B.E. Insurance (International) Ltd. v. Jaffar Flour and Oil Mills Ltd. (2008 SCMR 1037). It was further held in the aforesaid judgment that the settled law in this regard is that revisional Court in such like situation has to re-appraise the entire evidence just to determine as to findings of which Court were based on proper appraisal of evidence and appreciation of law.
9. In view of the above discussion and exposition of law, this revision petition is allowed and consequently the impugned judgment and decree of the appellate Court date 25.04.2012 is set aside and as result thereof the judgment and decree of learned trial Court dated 25.03.2010 is restored and maintained. Order accordingly.
1. Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande, reported as AIR 1995 SC 1212.
2. Syed Tariq Mustafa Versus Tauqir Johan Mustafa and others ( PLD 2022 Sindh 923)
3. Media Max (PVT) LTD. Through Chief Executive Versus ARY Communication PVT. LTD.
Through Chief Executive and another (PLD 2013 Sindh 555)
4. "Mst. Azra Gulzar v/s Muhammad Farooq & another" reported at 2022 SCMR 1625
5. Madan Gopal and 4 others v. Maran Bepari and 3 others" reported at PLD 1969 SC 617