' This Constitutional petition seeks judgments/orders dated 25-3-2003 and 7-4-2003 passed by Civil Judge and Additional District Judge, Sialkot, respectively, to be declared as illegal, void and ineffective.
2. A short factual background of the case is that a suit for partition was filed on 4-6-1984 claiming the properties mentioned in para.1 of the plaint, as detailed in its three subparagraphs, to be joint between the parties. In this suit after contest between the parties, a preliminary decree was passed on 18-10-1995. Muhammad Munir and others filed an appeal against the preliminary decree but remained unsuccessful as it was dismissed on 31-7-1999. Under the preliminary decree, the learned trial Judge appointed Syed Ijaz Hussain Naqvi, Advocate, as a local commission, who submitted.
His report after site inspection but on objections to it, the same was set aside and a fresh commission was appointed. Second report of the local commission was also subjected to objections by the parties and during the course of arguments on the objections, the parties agreed for sale of property through auction, consequently, auction of the property was ordered on 4-2- 2003.
3. Petitioners appear to have made certain efforts to save the property from auction as per order dated 4-2-2003 passed by the trial Court by filing some application for amendment of their written statement and few other applications, but could not succeed in their purpose of having an order, staying auction of the property. Petitioners then moved an application under Order XIV, rule 5, C.P.C.
Praying that their property has been included by the respondents in the plaint which, as a matter of fact, is not joint. According to the petitioners' assertion, their predecessor Umar Din along one Muhammad Ibrahim purchased certain property through a registered sale-deed dated 5-3-1945 in equal shares. Petitioners who along respondents, are descendants of Umar Din, purchased share of Muhammad Ibrahim, co-vendee of Umar Din their predecessor through a registered sale-deed dated 19-4-1958. Their claim is that property ,mentioned in para.1 of the plaint, which has further been detailed in para.7 of the plaint by the respondents, is the entire property purchased by both Umar Din and Ibrahim vide sale-deed dated 5-3-1945 and also includes their half share purchased by them from Muhammad Ibrahim vide sale-deed dated 19-4-1958.
4. Respondents contested the application of the petitioners and out of this contest learned Civil Judge vide his order dated 25-3-2003 dismissed it. Petitioners' revision before the Additional District Judge also failed on 7-4-2003. They have now come up in Constitutional jurisdiction of this Court for annulment of both the judgments/orders of , Civil Judge and Additional District Judge, as noted above.
5. Stance of the learned counsel for the petitioners is that respondents being brothers and sisters and living jointly, were not aware of the sale-deed in favour of Muhammad Sadiq deceased father of the petitioners, at the time of filing of written statement. According to him, both sale-deeds relied by the parties dated 5-3-1945 and 19-4-1958 are registered and being 30 years old documents carry a presumption of correctness and if these documents are read along the plaint of the respondents, it becomes clear that property purchased by Muhammad Sadiq from Muhammad Ibrahim is exclusive ownership of the petitioners, which cannot be made subject of partition suit. He also submits that failure of both the Courts below to frame issues, is claimed to have prejudiced proprietary rights of the petitioners.
6. Conversely, learned counsel for the respondents refuted assertions of the petitioners, supported the impugned judgments/orders and urged that petitioners were party to the partition suit and had filed their written statement but no such objection, was raised by them in their written statement. According to him, during entire contest of the suit, they did not raise any kind of objection to the partability of the property now claimed to be their exclusive ownership. According to him, petitioners attempted to raise this objection by filing an application under Order VI, rule 17, C.P.C. Praying amendment of their written statement, but it was refused upto the level of this Court.
Learned counsel for the respondents further elaborated his arguments by saying that without there being any assertion or denial in the pleadings, issues claimed and that too after passing of preliminary decree, cannot to be framed. He also submits that preliminary decree was also challenged in appeal but after its dismissal, the decree has become final between the parties.
7. I have anxiously considered respective arguments of the learned counsel for the . Parties and have examined the record appended herewith. Undeniably, property mentioned in para.1-B ( Zr ) further detailed in para.7 of the plaint, is the same, which was purchased through sale-deed dated 5-3-1945 and this fact has duly been narrated by the respondents themselves in para.7. I have examined this sale-deed, copy of which is appended with this petition at page 50-A. It was executed by one Fazal Hussain son of Hakim-ud-Din caste Arain, resident of Mouza Mayanapura, Sialkot City regarding the property above noted, in favour of two persons i.e, Mistri Umar Din son of Blund Bakhsh and Muhammad Ibrahim son of Shah Muhammad. Both these vendees were brother-in-law, inter se, as asserted by the counsel for the petitioners and they purchased this property in equal shares. There is another sale-deed at page 47, which was executed by Muhammad Ibrahim son of Shah Muhammad on 19-4-1958 in favour of Muhammad Sadiq son of Umar Din, transferring his share purchased by him under sale-deed dated 5-3-1945. Vendee under this sale is father of the petitioners. These documents have their evidentiary value as claimed by the petitioners and prima facie show that share of Muhammad Ibrahim purchased by father of the petitioners Muhammad Sadiq, has been included in the plaint and has been made part of the joint property, but this objection was not raised by the petitioners in their written statement or at any subsequent stage of the proceedings in the suit, which has matured into a preliminary decree.
After dismissal of appeal by the Appellate Court against preliminary decree, it can no more be attacked and it, at least, declares two things; firstly, properties mentioned in the plaint to be joint and secondly, shares of the parties therein.
8. Filing of application for framing of issues under Order XIV, rule 1, C.P.C. Is of no benefit to the petitioners because at this stage of the proceedings in the suit, no issue regarding partability or otherwise of the property, already declared to be joint through preliminary decree, can be framed.
Petitioners themselves are aware of the situation, as they had earlier attempted to amend their written statement without which the issues claimed, cannot be framed. Under Order XIV, rule 1, C.P.C. a fact asserted and denied, can only be brought to issues but the issues sought to be framed, have no backing in the pleadings, thus no indulgence can be shown in favour of the petitioners. Both the Courts below have rightly decided the present dispute regarding framing of issues. Respondents 73 and 74 have passed their orders within the framework of their jurisdiction, provided by law. Jurisdiction vesting in them is not shown to have been exercised arbitrarily and fancifully. Orders passed within competence/jurisdiction cannot be declared as prayed. This petition has no merit in it and is accordingly dismissed with no order as to costs.