' SYED NAJAM-UL-HASSAN KAZMI, J.---This judgment will decide R.F.A. No,189 of 1993 and R.F.A.
No,228 of 1993, as the same arise out of common judgment in a suit for partition.
2. Muhammad Ismail (respondent No,1 in R.F.A. No,189 of 1993) filed a suit for possession through partition and for rendition of accounts, in respect of the estate left by Haji Shahab-ud-Din. It was claimed that Haji Shahab-ud-Din contracted two marriages, out of one wife, respondent No,1 was born, while the appellants were born from the second wife (Mst. Hakum Bibi). Haji Shahab-ud-Din died on 19-8-1985 leaving the properties detailed in the plaint. Respondent No,1 claimed 7/40 share in the property, and asked for its separate possession through partition Hafiz Muhammad Yaqoob (respondent No,2 in R.F.A. No,189 of 1993) filed Written Statement, wherein, certain legal objections were raised and it was claimed that the deceased had disposed of certain properties in his lifetime in favour of his heirs. Insofar as the appellants herein, are concerned, they failed to file written statement though they were being given certain opportunities, with the result that their defence was struck off on 20-7-1987, the order was challenged in civil revision which was dismissed, Later, they moved an application for permission to join the proceedings which application was dismissed on 4-6-1988. This order was challenged in civil revision before the High Court and the same was disposed of on 13-12-1988, with the observations that the appellants should be allowed to participate the proceedings to the extent of cross-examining the witnesses of the respondents. In view of the pleadings i,e, plaint and written statement of respondent No,2, the following issues were framed:--
(1) Whether the suit is not maintainable in its present form? OPD.
(2) Whether the plaintiff has got no cause of action to bring this suit? OPD.
(3) Whether the suit is undervalued for the purposes of court-fee and jurisdiction, if so, what is its correct valuation? OPD.
(4) Which were the properties left behind by Haji Shahab-ud-Din deceased at the time of his death and what are the legal shares of the parties with respect to the suit properties? OPP.
(5) Whether any property was given to the defendant No,6 through a sale-deed, any piece of land was given to mosque or any piece of land was given to the defendants Nos.4 and 5 through a sale- deed and any area given to the defendant No,1 if so what is the description of those properties?
OPD.
(6) Whether the defendants spent a huge amount over the suit property from their own pocket for the constructions over the same if so what amount and its effect? OPD.
(7) Whether the plaintiff is entitled to get a preliminary decree for the petition of the suit properties as prayed for? OPP.
(8) Whether the plaintiff is entitled to get the possession of the property according to his legal share and further entitled to receive the amount of rent as prayed for? OPP.
(9) Relief.
3. After evidence, a preliminary decree was passed on 2-7-1990, and in result a local commission was appointed to submit report in terms of the directions contained in the order of the Court.
4. On 23-5-1993, final decree was passed by the learned Civil Judge. In R.F.A. No,189 of 1993, final decree as well as preliminary decree, including certain interlocutory orders have been called in question. This appeal has been filed by Muhammad Ibrahim and 4 others, who were defendants Nos.2 to 6 in the suit, while R.F.A. No,228 of 1993 has been filed by Muhammad Ismail, respondent No,I herein (plaintiff in the suit), who has challenged the final decree to the extent the accounts were not settled and rental of the property was not proportionately distributed.
5. Learned counsel for the appellants in R.F.A. 189 of 1993, contended that the appellants could not be denied the right to file the written statement, the order closing the right to file written statement was untenable, the written statement having been filed on the day, when the order under Order VIII, rule 10, C.P.C. Was passed, should have been considered the preliminary decree suffered from legal infirmity as the preconditions for passing the preliminary decree were not satisfied, certain issues left unattended, though the same had to be decided before the preliminary decree could be drawn, no speaking order was passed for deciding the objections to the report of Local Commission, the objections were virtually not decided and that the findings of the Courts below suffered from serious misreading of he record. It was added that the report of the Local Commission was ab initio void, the Court below failed to take into consideration Deed, Exh.D.W.5/1 in proper perspective and that the impugned decree was violative of the rule of natural justice.
6. Learned counsel for respondent No,1 (Muhammad Ismail who is appellant in R.F.A. No,228 of 1993) argued that no appeal having been filed against the preliminary decree, the same could not be challenged in appeal against the final decree. Learned counsel submitted that the gift was valid though the conditions were void. It was contended that full opportunities were allowed to all the parties, the preliminary decree did not suffer from any error of law. Learned counsel mainly argued, against the final decree, to the extent that the accounts were not settled and rental was not distributed among the heirs in proportion to their shares. It was contended that the report of the Local Commission was not correct, the Trial Court completely ignored the Commission report and proceeded to direct the auction without passing any decree for distribution of the rental of properties. It was added that the objections were never disposed of. Mr. Riaz Ali Abbasi, Advocate, also addressed argument to challenge the impugned decree.
7. Deeper scrutiny of the facts on record reveals that in the suit for partition filed by respondent No,1 for the distribution of estate left by Haji Shahab-ud-Din, a preliminary decree was passed on 2-7- 1990. This decree was not challenged in appeal within the prescribed time of limitation. Section 97 of the Civil Procedure Code, provides that where a party aggrieved of preliminary decree does not file appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision of law manifestly makes it clear that the correctness of preliminary decree cannot be subjected to criticism in an appeal against the final decree. Reference can be made to Jamal Din v. Muhammad Yaqoob (1983 CLC 286), where it was observed that the effect of non-filing of the appeal against the preliminary decree will be that its correctness cannot be disputed in the appeal against the final decree. Reference can also be made to Friend Engineering Corporation and others v. Government of the Punjab and 4 others (1991 SCM R 2324), where it was ruled that if the validity of the preliminary decree was not challenged in appeal, the preliminary decree cannot be struck down in appeal against the final decree
8. In the present ease, admittedly, preliminary decree passed on 2-7-1990, was not questioned in appeal. This being so all the issues which could have been raised, attended or disposed of in the proceedings prior to the preliminary decree and were decided as such, cannot be reopened in appeal against the final decree. Any party, if aggrieved, by the preliminary decree and not satisfied by the order disposing of certain objections, could challenge the decree in appeal for an authoritative pronouncement, but having failed to do so, it would not be open for such a party to criticize the preliminary decree in an appeal against the final decree. Learned Civil Judge while rendering decision on different issues at the time of passing the preliminary decree held that properties mentioned at Serial Nos.1 to 7 were left by the deceased. Resultantly, it was directed that the Local Commission be appointed to submit his report as to the exact measurements of the property left by the deceased from the properties mentioned at Serial Nos.5 and 6, description of properties given at Serial No,7, amount spent by defendant No,1 and defendant No,3 for demolition and reconstruction of property at Serial No,9, to report as to the partitionability of the property and description of the property in possession of the tenants alongwith rental received and the persons receiving the rent, shares of the parties in immovable and movable properties after rendition of accounts In consequence, the local commission submitted his report, dated 30-7-1992, which was objected to by the parties. Insofar as, the determination of the joint properties in the preliminary decree is concerned, such determination cannot be challenged in the present appeal which arises from the final decree. It is true that in R.F.A. No,189 of 1993, the appellant has attempted to challenge the final decree as well as the preliminary decree alongwith interlocutory orders but the appeal is not properly framed, as in law, the preliminary decree having been passed on 2-7-1990 and no appeal having been filed within the limitation against the same, its validity cannot be questioned in the appeal against the final decree. There is no question of joining the attack against the two decrees in one appeal. Appeal can be either against the preliminary decree or against the final decree. As to the preliminary decree, the claim is barred by time and, therefore, its illegality cannot be questioned on assumption of merging of this preliminary decree into the final decree. This being so, the present appeal will have to be contained to the ground which relates to the final decree.
Same is the position as to interlocutory orders which were passed at different stages before passing of the preliminary decree. The right to file the written statement was closed under Order VIII, rule 10, C.P.C. Which order was challenged in revision but was not disturbed. Later the appellants intended to cross-examine the witnesses which was not allowed by the learned Trial Court but in Revision the High Court allowed right of cross-examination. In the first instance, having filed revision in this Court against the order closing defence under Order VIII, rule 10, C.P.C., appellants cannot be permitted to reopen the issues, in appal against the preliminary decree. The appellant could either challenge order or could await for the final decision. Having opted to challenge the order of closing the right of filing written statement in this Court and remaining unsuccessful, the appellant cannot again attack the same at the time of appeal against the final decree. Be that as it may, the appellant could file appeal against the preliminary decree where the Court could consider the question pertaining to the written statement but no appeal was filed, with the result that all issues which were decided prior to the passing of preliminary decree would stand concluded and attained finality and cannot be allowed to be reopened in appeal against the final decree. Regarding objection that there were some conditions imposed at the time of making alienation/gift, through Exh.D.W.5/1 which would debar the parties from claiming inheritance, the same is devoid of merit. The right of succession accrues on the opening of succession upon death of propositus, and therefore, the question of creating any clog, in the future and anticipatory inheritance right is not visualized by law. Even otherwise, the gift was complete and the alleged condition, creating obstruction in inheritance was void, hence unenforceable and was rightly ignored by the Court below.
9. As regards the other submissions against the final decree, there is substance in it. Both the parties have challenged the final decree. It is thus a case, in which decree-holder as well as the judgment-debtor, both question the validity of the final decree. A perusal of the final decree in the light of the material annexed with the appeal, would show that the same suffers from legal infirmity. The main argument of both the parties is that objections filed by the parties against the report of the local commission were not attended to or decided. The judgment and decree, dated 23-5-1993, indicate that the learned Civil Judge made reference to the objections filed by the parties against the report of the local commission but without deciding the same proceeded to order auction of the properties. The course adopted was untenable in law. There were number of objections which did require serious consideration. One of the objections was that in the preliminary decree, the learned Civil Judge had observed that the local commission would determine the amount spent on, re-construction and will also propose deduction from the share of the parties proportionately. It was also held that the deceased left immovable properties from which the rental was being received from different tenants and respondent No,1 was entitled to receive the rent according to his share from the date of death of the deceased and that the Commission would determine the amount of rent and will also report as to who was receiving it.
Additionally, certain measurements of the property were left for the Local Commission to undertake. It will, thus mean that certain factual inquiries as to the description and measurements of the properties, the amount of rental received, the respective shares of the parties therein, were left for the Local Commission to report and after receiving his report, the Court had to pass a decree in accounts matter and appoint a receiver. It is also observed that the parties had objected to the conclusion of the Local Commission as to the partitionability of the property and as to the amount of rental arising from the joint property. All these objections could be decided after recording evidence. The Court after considering the objections, in the light of the evidence, was expected to determine if the property was partitionable, and if not, whether the same could be auctioned and also as to what were the accounts. The Court, had to grant relief in the matter of recovery, settlement and adjustment of the rent and income of the joint property. Unfortunately, all these important aspects of the matter which ought to have been considered before passing the final decree, were not attended to by the learned Civil Judge who mechanically passed the final decree. The final decree, therefore, suffers from legal infirmity and cannot sustain.
10. For the reasons above, R.F.A. No,189 of 1993 and R.F.A. No,228 of 1993 are partly allowed and the final judgment and decree, dated 23-5-1993, ate set aside. The case is remanded to the learned Civil Judge who will decide the objections to the Report of the Local Commission by allowing parties opportunity of evidence and will pass a final decree after attending to the questions noted supra and also in the light of the observation made hereinabove. However, the preliminary decree is not disturbed and R.F.A. No,189 of 1993 to the extent of challenging preliminary decree and interlocutory orders preceding preliminary decree is dismissed.
11. Since the matter is old one, the learned Civil Judge will conclude the proceedings for final decree within three months with intimation to the Deputy. Registrar (Judicial) of this Court.