It is proposed to decide four revision petitions No.97, 101, 112 and 114 of 1987 through this single judgment as one and the same judgment of the learned District Judge, Abbottabad dated 22-7- 1982 has been impugned in all these petitions. The learned District Judge accepted the appeal of Behram Khan plaintiff-respondent and setting aside the judgment of the trial Judge decreed his suit for possession by partition to the extent of 4/9 share minus 126 sq. Yards and 7 sq. Feet out of 15 shops situated in the urban area of Havelian District Abbottabad.
2. Behram Khan plaintiff-respondent No.l instituted a suit for possession by partition of his legal share of Khasra Nos. 1062, 1058, 1045, 1044, 1059, 1039, 1054 and 1053 measuring 449 sq. Yards and 2 sq. Feet and the entire area of these khasra numbers consists of 15 shops which are situated in the urban area of Havelian. It was, however, stated in the plaint that the portion which he had transferred to Mst. Mubarak Jan defendant No.5 and Jawaid Iqbal and Akhtar Nawaz defendants be deducted from his share. The allegations in the plaint are that the suit shops were owned jointly by the plaintiff and Shah Zaman, the predecessor-in-interest of defendants 1 to 3 and on whose death his share devolved to the extent of 5/48 share over the plaintiff and mutation No. 1234 dated 23-6-1971 to this effect was attested and similarly on the death of Mst. Roshan Jan her share was inherited by the plaintiff and defendants 2 and 3. It was further stated that the plaintiff was in Hissadari possession of Khasra Nos. 1053 and 1054 and he sold his share in Khasra No.1054 in favour of defendants Jawaid lqbal and Akhtar Nawaz while Hissadari right in Khasra No.1053 was alienated in favour of Mst. Mubarak Jan and the possession of these Khasra numbers was also transferred to the said vendee. It was further alleged that Shah Zaman owner of 1/3 share in some of the Khasra numbers also transferred his right to Mst. Sakina Jan and other defendants as mentioned in para No.4 of the plaint. It was also revealed that the plaintiff has purchased the entire share of Khadi Khan and Roshan Jan through mutations. 'It was, therefore, stated that the plaintiff is in possession of less area than his entitlement and that the joint nature of the property is prejudicial to his interest and it also leads to unnecessary disputes between the co-sharers and, therefore, he requested for partition of his share. It is to be noted that the original plaint was filed in 1974 which was first amended in 1983 and then in 1984 in order to implead the other interested persons as defendants. The suit was resisted by some of the defendants while some were placed ex parte and the learned trial Judge dismissed the suit of the plaintiff against the contesting defendants while against the "non-contesting" his suit was decreed. It was indeed a very peculiar and novel decision in view of its classification of the defendants in the two categories of contesting and non-- contesting. But in spite of this division of the defendants into the said two groups the learned trial Judge failed to determine and specify the share of the plaintiff and to show as to what extent his suit was decreed. It also failed to work out the entitlement of the contesting defendants and also those of the non-contesting defendants. In short it was so confused and vague judgment that it could never have been implemented. Feeling these defects and lacunas in the judgment of the trial Court the plaintiff challenged it in appeal before the learned District Judge. The appellate Court while accepting the appeal decreed the suit of the plaintiff to the extent of 4/9 share but ordering the deduction therefrom of 126 Sq. Yards and 7 Sq. Feet the area which the plaintiff had admittedly transferred to Mst. Mubarak Jan etc. In Revision Petition No.97/87 the petitioners Shah Dad Khan etc. Were arrayed as defendants Nos. 11 and 12 in the original plaint and as defendants Nos.8, 5 to 21 in the amended plaint. They had contested the suit and in their written statement besides legal objection of the suit being barred by time, incompetency of the suit and protection under section 41 of the T.P. Act, on factual side they submitted that they had purchased one of the suit shops lying in Khasra No.1058 from Mst. Sakina Jan daughter of Shah Zaman by Mutation No.925 dated 13-12-1968 and, therefore, being bona fide purchaser their rights would be protected under section 41 of T.P. Act. Revision No.101/87 has been filed by Habibur Rehman etc. The heirs of Habibullah who was defendant No.5 in the original plaint. In the amended plaint they were impleaded as defendants 23 to 27 and heirs of Malik Mohammad Khan who was arrayed as defendant No.9 in the amended plaint and Mir Mohammad defendant No.6 in the amended plaint.
In their written statement they alleged that the shops in their occupation were earlier 'Katcha' built and were owned by the evacuees and on their leaving the country they came in the ownership of Central Government and from the Central Government; they purchased it under Scheme No.l. They spent huge amount over its construction and in case of their ejectment they would be entitled to the improvement. The petitioners in Civil Revision No.112 of 1987 are Ghulam Ishaq etc. Who figured as defendants Nos. 3 and 4, 12 and 13 in the amended plaint. The case set up by them in their written statement was that the present Khasra No.1057 and corresponding old Khasra No.2077/115 had in partition fallen to the share of Mst. Mirza Noor and shops were constructed thereon and that the defendants 3 and 4 purchased the property from the said lady by registered deed dated 24-11- 1942 and, thereafter, transferred it in the name of defendants Nos. 12 and 13 who further improved it and there are five 'Pakka' built shops and two cabins there which value more than lakhs. They also sought protection under section 41 of T.P. Act. Revision No.114/87 has been instituted by Mohammad Ayub who was arrayed as defendant No.28 in the amended plaint and he described himself as purchaser from Mst. Sakina Jan through registered deed dated 20-3-1983 and further alleged that the partition had taken place earlier between the co-sharers and that the plaintiff has sold much more than his entitlement.
3. The learned counsel Syed Abdus Salam Sarwar representing the petitioner in Revision Petition No.97/87 took lead in arguing his case as it was first on the list . He argued that the learned Courts should have dealt with the case of every party separately as according to him each set of defendants had put up distinct defence in their written statement. So, he stressed, that it was required of the learned Courts to have discussed the claim and interest of each set of the defendants as it appeared in their written statement. According to the learned counsel the failure of the learned Courts in this respect has resulted into material illegality and resultantly has caused miscarriage of justice. It was also argued that in partition suit the rights of each party irrespective of the fact as to whether he is plaintiff or is arrayed as defendant require separate determination.
In this context it was pointed out that the learned appellate Court has merely worked out the share of the plaintiff but failed to settle the entitlement of the defendants as claimed by them in their written statement. It was further added that distinction between the preliminary decree and final decree has not been kept in view. It was next submitted that some of the defendants have taken the plea of evacuee nature of the property and its transfer to the Central Government; and then its allotment to various persons and its subsequent purchase by some of the defendants, but according to the learned counsel the legal implication regarding this aspect of the case has not been kept in view. In view of these points the learned counsel was of the view that the judgments of both the Courts are illegal and without jurisdiction. Mr. Mohammad Younas Khan Tanoli Advocate who appeared in support of the petitioners in Revision No.112 of 1987 argued that his clients had purchased the suit shops in Khasra No.1057 from Mst. Mirza Noor through registered sale-deed dated 24-11-1982 and Behram plaintiff and Shah Zaman one of the original owners and predecessor of defendants Nos. 1 and 2 are marginal witnesses to this deed and, therefore, according to him these shops were held exclusively by the vendor and this position was admitted by the said two marginal witnesses and, therefore, they are estopped to say that these shops are jointly owned and that they have share in it. He also argued that keeping in view this position his clients have become exclusive owners of the suit shops even on account of adverse possession. It was also pointed out that in view of the relevant law the ownership of the evacuee had gone to the Central Government and then to various allottees and purchasers without any encumbrance. Haji Ghulam Basit Advocate, while appearing for the petitioner in revision No.114/87 criticised the form of the suit as according to the learned Advocate the plaintiff should have first found out the encroached area and then sought relief against those who were liable to surrender the excess area to them. He further argued that the plaintiff by his own admission in his statement that he would not claim any portion from some of the defendants has in fact admitted the partition of the suit property. Mr. M. Mushtaq Awan Advocate for the petitioner in Revision No.101/87 adopted the arguments advanced by the other learned counsel. The learned Advocate Haji Sardar Bahadur Khan pleaded the cause of Behram Khan plaintiff-respondent No.l and submitted that the arguments advanced by the other side are entirely irrelevant, off the point and pre-mature at this stage. According to him all these objections can be raised and answered during the proceedings in the final decree as mode of partition will be proposed at that time, commission will be appointed, compensation for improvement will be determined and adjustment between the owners will be made. He also dubbed the finding of the trial Court as unique in its classification and distinction in contesting and non-contesting defendants. He submitted that no evidence has been brought to show fresh construction nor any permission or site plan in this respect--from the office of Municipal Committee has been brought on record. It was also argued that no allegations of the property having evacuee character have been made in the written statement nor any issue on this point has been framed. He pointed out that the plea of private partition has not been agitated at the lower level and the parties being co-sharers no question of adverse possession will arise. It was also argued that M. Ayub petitioner in revision petition No.114/87 has purchased a portion of the property m question during pendency of the suit, therefore, neither this purchase nor improvement, if any, over a purchased property would bind his client and particularly when all this was done in presence of the stay order.
4. I have gone through the relevant record in tie light of the arguments advanced by both the sides.
It was noticed that the case has been dealt with in a very perfunctory and casual way at the lower level. The decisions of the Courts below suffer from the following illegalities and infirmities and which of course has resulted into illegal and wrong decision:-
(i) The allegations in some of the written statements regarding the evacuee nature of the property and its transfer to the Central Government and from Central Government to other individuals and its purchase by some of the defendants in context of the applicability of the relevant law and other legal implications have not been looked into.
(ii) The significance of the statement of the plaintiff that he would not ask for partition regarding the property held by some of the defendants has also not been kept in view.
(iii) The relevant provisions of the Civil Procedure Code and particularly Order XX Rule 18 have not been considered while deciding the case.
(iv) The property in suit admittedly consists of shops and is, in existence from sufficient long time and shown as such in the Revenue record. In the plaint also the request for partition of shops has been made. In this context the allegations in the written statement and evidence brought on record in respect of the form of suit, valuation for the purposes of court---fee and jurisdiction, exclusive possession of the defendants, private partition, adverse possession, estoppel and limitation would require proper determination in the light of the evidence present on record or the additional evidence which after the remand would be brought on record as these important points have not been legally' decided.
(v) The plea of bona fide purchaser and protection under section 41 of T.PAct and acquiescence on the part of the plaintiff has been raised by some of the defendants which should also be resolved in the light of the relevant law and materials on record.
(vi)It was also noticed that some material issues have been left undecided.
5. These revision petitions are, therefore, accepted and the judgments and decrees of the learned Courts are set aside. Consequently, these cases are remanded to the trial Court for decision in the light of the above observations and in accordance with law after allowing the parties to produce such further evidence as they would like to bring on record. Parties are to bear their own costs.