1. Civil revision at the instance of the defendant arose out of a suit for partition of a residential house held in joint ownership between the parties and was against the judgments of the lower Courts by which. a preliminary decree was passed for separating the shares of the parties in the house. Suit was decreed by the trial Court, on 20-11-1977. Appeal from the preliminary decree passed by the trial Court failed on 9-3-1978, in the Court below.
2. Material facts giving rise to the civil revision briefly are these: Rahim Bakhsh owned a residential house in Basti Balochan of Sheikhupura City. He died on 20-3-1945. He was survived by three sons namely Karim Bakhsh, Ghulam Ahmad, Kaloo and a widow namely Mst. Daulat Bibi. His fourth son Khuda Dad had predeceased his father leaving behind him surviving his sole son, Noor Muhmmad.
3. He was born on 5-1-1940. Kaloo was in possession of the residential house once owned by his father. By a deed registered on 28-11-1960, he sold it to Muhammad Sadiq Baig defendant for a sum of Rs.2,250 and transferred its possession to him. Two sons of Rahim Bakhsh alongwith his grandson Noor Muhammad had instituted a suit against the purchaser of the house for its joint possession. It was averred that Kaloo owned 1/4th share in the house and could not alienate it in its entirety.
4. Defendant contested the suit On 10-11-1970, the trial Court decreed the suit. It observed that the defendant was in possession of the house not as its full owner but held it as a co-owner, subject to adjustment of rights at the time of its actual partition. Relief for joint possession was declined. The declaration was made on the lines shown in the judgment of this Court reported in AIR 1940 Lahore
473. It shall be worthwhile to notice that inter se shares of the parties in the house were not determined in its judgment by the trial Court. It merely held that the parties were co-owners in it and defendant Muhammad Sadiq Baig held possession of the house as a co-owner. The judgment was accepted by both sides. Thenceforth, the defendant maintained his possession on the house as a co-sharer in it. The matter did not end here. It proved to be a prelude to the present litigation.
5. On 15-1-1971, the plaintiffs again instituted a suit against Muhammad Sadiq Baig foi separation of their 3/4th share in the house through its partition. It was asserted that the plaintiffs collectively held 3/4th share in the house and the remaining 1/4th belonged to the defendant.
6. Defendant filed his written statement and resisted the suit. It was pleaded that Kaloo was a necessary party to the suit for partition; Noor Muhammad plaintiff No.3 had no interest in the house and was unnecessarily joined in the suit. Plaintiffs Nos.l and 2 namely Karim Bakhsh, Ghulam Muhammad and Kaloo jointly owned other houses and property and without bringing them in the hotchpotch for a final partition, the suit for partition of the house in question only could not proceed. In nutshell, plea of partial partition was raised in defence. Similar defence was reiterated in the relevant paragraph of the written statement on merits. In replication, plaintiffs reiterated the contents of the plaint.
7. On 4-6-1971, the trial Court settled as many as five issues for determination. On 2-11-1974, an additional issue numbered 4-A was added. After settlement of issues, parties gave their evidence.
8. It consisted of oral statements of witnesses and number of documents on either side. Upon its review, trial Court decreed 3/4th share of the house to the plaintiffs and gave them a preliminary decree for separation of their share in the house from the defendants and appointed a local commissioner for suggesting mode of partition of the house. In appeal, decree passed by the trial Court was maintained. It was held that Kaloo was not a necessary party; his share in the house was 1/4; parties were not joint owners of any other property, and, therefore, the suit did not suffer from defect of partial partition.
9. Two points were urged at the hearing by learned counsel for the petitioner. First point related to the actual shares of the parties in the suit --house and the other point pertained to plea of partia: partition. As regards the first point, it was argued that since Khuda Dad had predeceased his father, his son Noor Muhammad was not entitled to inherit any share in the house. The contention has substance in it. Rahim Bakhsh died on 20-3-1945. Khuda Dad predeceased him. Muslim Family Laws Ordinance, 1961 came in force on 15th July, 1961. Its operation was not retrospective.
10. Succession to the house having opened out on the demise of its owner prior to the enforcement of Muslim A Family Laws Ordinance, section 4 of it shall not apply for regulating the rights of inheritance. Clear result of it would be that three surviving sons of Rahim Bakhsh and his widow Mst.
11. Daulat Bibi shall inherit from him. Mst. Daulat Bibi died on 20-1-1960. Her 1/8th share in the house shall devolve upon her three surviving sons in equal shares. Consequently, each son of Rahim Bakhsh held 1/3rd share in the house in question at the time of its sale on 28-i1-1960. Kaloo was therefore owner of 1/3rd share in the house which he could validly transfer to his purchaser.
12. Judgment of the Civil Court in Suit No.736/1 of 1970 between the parties Exh.P-10 was not res judicata on their shares in the house. It was neither the case of the parties, nor, was there any evidence to show that Kaloo son of Rahim Bakhsh had ever consented to inheritance of a share by Noor Muhammad in the house in question. His share in it, therefore, shall not be affected. Any arrangement between the plaintiffs regarding their shares of the property may be binding on them, but it shall not affect the rights of Kaloo in it. Upon the above premises, it was clear that purchaser from Kaloo could retain his 1/3rd share in the house instead of 1/4th conceded to him in the lower Courts.
13. Having determined the inter se shares of the parties in the house, I shall advert to the second point, whether the suit is hit by partial partition. Oral evidence may not be helpful, except for elucidating the documentary evidence regarding ownership of property by particular individuals. In order to establish plea of partial partition and to prove that the heirs of Rahim Bakhsh also owned other properties in joint ownership, which were accountable in the suit for partition, the defendant tendered in evidence copies of Forms PT-1 showing respective ownership of the parties mentioned therein. Exh.D-2, Exh.D-3 recorded Mst. Daulat Bibi as owner of residential houses under Survey Nu.B I1I-4S-106 and B III-4S-104, Exh.D-2 and Exh.D-3 pertained to the year 1950-51. Ms;. Daulat Bibi was shown as widow of Rahim Bux son of Elahi Bux in these two documents. In the Form PT-1 for the years 1955-56 Exh. D-4, Exh.D-6, aforesaid two houses were shown in the ownership of Mst. Daulat Bibi widow of Rahim Bakhsh. Parentage of Rahim Bakhsh was dropped in these two documents and Mst. Daulat Bibi was recorded as widow of Rahim Bakhsh. There was no evidence on record to show that there was any other woman of the name of Mst. Daulat Bibi widow of Rahim Bakhsh in Basti Balochan. Though,the plaintiffs asserted that Mst. Daulat Bibi did not own any property in Basti Balochan, yet, the Form PT-1 which provided a prima facie evidence of ownership of the properties mentioned therein put the Court to further inquiry. If Mst. Daulat Bibi widow of Rahim Bakhsh mentioned in Form PT-1 was the mother of Karim Bakhsh, Ghulam Ahmad and Kaloo, the objection of partial partition might gain prominence. Sufficient evidence was not available on record for a final determination of this point. Deficiency of material shall not defeat the ends of justice. Lower Courts had not adverted to the above evidence with deserving judicial care and caution. In result, it caused miscarriage of justice. There is no doubt that much delay has already taken place. Suit for partition was first instituted in January, 1971. It is not yet finalized. But delay alone shall neither defeat justice nor deflect its true course. Had sufficient evidence been available, I would have not hesitated to adjudicate the matter finally but paucity of material pointed to a need for a remand to the lower appellate Court for collecting the required material from the parties for deciding afresh of the issue relating to partial partition covered by issue No3. It may be observed that finding recorded on the shares of the parties in the house shall be kept intact and shall not be interfered with on remand.
14. In view of the aforesaid, civil revision is allowed. Impugned judgment and decree dated 19-3-1978 of learned Additional District Judge-II, Sheikhupura are set aside and the case is remanded to the Court below for recording a fresh finding on issue No3 and deciding of the appeal afresh in accordance with law after affording a reasonable opportunity to the parties for producing additional evidence on issue NO. There shall be no order as to costs in this Court.
15. Since it was an old matter and had already suffered enormous delay, the Court shall make a serious effort for its early decision. Records shall be returned.