1. ' Facts giving rise to the filing of this appeal are that the appellants/plaintiffs, in a suit for partition and permanent injunction filed by them, after filing of written statement by the defendants, moved an application under Order XII, Rule 6, C.P.C., (C.M.A. 9666 of 1998) before the Trial Court with the prayer to decree the suit on admission. Learned Trial Court after hearing the arguments of the parties counsel dismissed the said application vide its order, dated 26-1-1999 which order has been impugned in this appeal.
2. ' We have heard learned counsel for parties.
3. ' Mr. S.M. Akhtar Rizvi, learned counsel for the appellants contended that the appellants have filed a suit for partition and permanent injunction wherein they have stated that property bearing No,D-4, Block 11, Federal B Area, Karachi, admeasuring 1000 sq.Yds was exclusively owned by their mother Mrs. Azra Pervaiz who died at Karachi on 24-10-1996., leaving behind the parties to this suit- and their father Ghazi Mehmood Pervaiz as her only legal heirs to inherit this property. Subsequently Ghazi Muhammad Pervaiz also died at Dubai on 20-12-1996 and now this property is owned by his three sons and one daughter, viz., the two appellants and the two respondents, according to their share under the Sunni Law of Inheritance. The appellants, therefore, prayed that a Commissioner be appointed to take the physical possession and control of this property and after selling the same, to distribute sale proceeds amongst them according to their legal share. The respondent No,1 in his written statement before the Trial Court admitted that the suit property is jointly owned by the parties as they are the only legal heirs of their parents. The respondent No,2 in her written reply sent to the Court directly from Dubai also admitted these assertions of the plaintiffs and in such circumstances, the suit of the appellants was fit to be decreed on admission as provided under Order XII, Rule 6, C.P.C., but learned Single Judge while dismissing the application of the appellants adverted to irrelevant facts, committed error of law in dismissing the application under order XII, Rule 6, C.P.C., and thus, the impugned order is liable to be set aside. In support of his contentions, learned counsel placed his reliance on the following case-law:
(1) Ataullah Zia v. Pakistan Industrial Development Corporation 1986 M LD 754.
(2) Sheikh Mehmood Ahmad v. Dr. Ghaitft Pharaon and three others 1987 CLC 2131.
(3) Sahib Din and another v. Mst. Hasham Bibi and two others 1980 CLC (SC) AJ&K 121.
(4) Syed Niamat Ali and four others v. Dewan Jairam Dass and another PLD 1983 SC 5.
4. ' On the other hand Mr. Muniruddin Alvi, learned counsel for the respondent No,1, strongly controverted these contentions and submitted that in his written statement, respondent No,1 has challenged the maintainability of the suit and has also asserted that apart from the suit property the late father of the plaintiffs and the defendants had also left behind another property No,28/2, Phase VI, Khayaban-e-Shujaat, DHA, Karachi, being its Benami owner and other movable assets including one Corolla Car Model 1982 and in such circumstances all these properties should have been the subject-matter of the suit for partition filed by the plaintiffs. In view of these assertions the admission, if any, is conditional and qualified in nature and,' therefore, the provisions of Order XII, Rule 6, C.P.C., are not attracted in the present case. In support of his submissions, learned counsel has placed reliance on the following case-law:
(1) Kassamali Alibhoy v. Shaikh Abdul Sattar PLD 1966 (W.P.) Kar.
5. 75.
(2) Wazedunnessa Khatun v. Daliladdin alias Dalu and others 1971 DLC 703.
(3) Shah Zaman v. Alif Jan and another 1994 CLC 191.
(4) Izzat Khan and another v. Ramzan Khan and others 1993 M LD 1287.
(5) Macdonald Layton & Company Pakistan Ltd. v. Uzin Export Import Foreign Trade Co. And others 1996 SCMR 696.
6. ' Mr. Ghulam Abbas Soomro, learned counsel for respondent No,2 has supported the case of the appellants and contended that the respondent No,2 has no objection if the suit of the appellants is decreed under Order XII, Rule 6, C.P.C. He further contended that the written statement filed by respondent No,1 contains clear admission of the claim of the appellants and, thus, impugned order passed by the learned Single Judge is liable to be set aside and the application under Order XII, Rule 6, C.P.C.,, moved by the appellants may be allowed.
7. ' We have carefully considered the arguments advanced before us and perused the material placed on record. Before considering the contentions of the learned counsel for parties, it would be appropriate to examine some case-law relevant in this case.
8. ' In the case of Macdonald Layton & Company Pakistan Ltd. (Supra) the Honourable Supreme Court after discussing some case-law of Indian jurisdiction and also a judgment of full bench of this Court in the case of Izzat Khan and another v. Ramzan Khan and others (1993 M LD 1287) observed that even if an admission has been made but it is subject to the qualification regarding maintainability of the suit or any such legal objection which goes to the very root of it then it would not be proper exercise of discretion to grant decree on such admission.
9. ' Similar view also finds place in the cases of
(i) Kassamali Alibhoy v. Shaikh Abdul Sattar (PLD 1966 (W.P.) Karachi 75; and
(ii) Wazedunnessa Khatun v. Daliladdin alias Dalu and others (1971 DLC 703).
10. ' The case-law referred by the learned counsel for appellants is on different premises and not relevant in this case.
11. ' Reverting to the facts of the present case, from the perusal of contents of the plaint and the written statement filed by respondent No,1, it is clear that apart from the fact that the respondent No,1 has challenged the maintainability of suit on various legal grounds, he has also claimed' that certain other movable and immoveable properties were left behind by his deceased father Ghazi Mehmood Pervez which should also be the subject-matter of partition proceedings in the present suit. In such circumstances, admission made by the respondent No,1 in his written statement that the suit property for which partition has been sought by the appellants is jointly owned by the parties and that they are Sunni Muslims and entitled to their respective share in the suit property would not constitute an unqualified and unconditional admission, entitling the appellants to get their suit decreed on admission. In view of the above discussion, this appeal has no merits and the same is accordingly dismissed in limine.
12. ' Foregoing are the reasons for our short order, dated 6-10-1999.