WALAYAT BEGUM and others vs WAZIR BEGUM and others

' Hafiz Din Muhammad died in 1928 leaving behind his widow Mst. Karam-un-Nisa, two sons Faiz Muhammad, the predecessors-in-interest of Wazir Begum etc. Respondents/plaintiffs and Muhammad Shaft, the predecessor-in-interest of petitioners/defendants Nos.1 to 8 and four daughters, namely Sarfaraz Begum, Iqbal Begum, Irshad Begum and Ghulam Zainab. Defendants Nos.11 and 12 are the successors of Iqbal Begum who died in 1943. Defendants Nos.13 to 17 are the successors-in-interest of Mst. Zainab who died in 1952. Faiz Muhammad died in 1957 and Muhammad Shall in 1956. Mst Karam-un-Nisa died in 1974.

2. Mst. Wazir Begum etc. Claiming to be the joint owners of the four houses left by Hafiz Din Muhammad on his death, claimed possession through partition. The suit was only contested by the present petitioners/defendants. Learned Civil Judge Lahore, vide judgment dated 30-64979 concluded the plaintiffs' share to be 57/224 and consequently passed a preliminary decree for partition in their favour. The petitioners/defendants challenged the same in appeal and the same was dismissed by learned Additional District Judge, Lahore vide judgment dated 11-10-1982. So the present revision petition.

3. The admitted position is that Hafiz Din Muhammad was the predecessor-in-interest of the parties as concluded by the two Courts below and he left the four houses. The pleas raised by the defendants were that some other properties left by said Hafiz Din Mohammad had not been made part of suit property it was, therefore, bad on this Court, the property was mortgaged and Mst.

Walayat Begum defendant bad got it redeemed, the defendants being in possession they had perfected their title by prescription, the suit was time-barred and that the parties were goserned by custom. These pleas were controverted and the pleadings of the parties led to the settlement of following issues:-- ' Is this suit bad for non-inclusion of any propery left by Hafiz Din Mohammad? OPD.

' Does Partition Act, bar this suit? OPD.

' Is this suit bad for non-joinder of necessary or proper parties? OPD.

' Are the plaintiffs co-sharers in the property in dispute, if so, to what ., extent? OPD.

' Have the defendants acquired ownership rights of the property in dispute, if so, to what extent?

OPD.

' The learned Civil Judge answered issue No,1 against the defendants, issues Nos.2 and 3 were not pressed before him, on issue No,4 he concluded that the plaintiffs were co-sharers to the extent of 57/224 share and the defendants had not acquired ownership by adverse possession nor the suit was time-barred. These findings were upheld by the learned appellate Court.

5. Learned counsel for the petitioners contended that the learned Additional District Judge did not advert to the issues, the evidence produced, nor made any discussion and just on the basis of the contentions raised before him decided the appeal. The approach, according to him, was in clear violation of Rule 31 of Order 41, C.P.C. Thus he prayed that the case be remanded for fresh decision by the learned Additional District Judge. He also asserted that the question of limitation had not been put to an issue and the suit was incorrectly valued for puposes of court-fee. With respect to the first limb of his argument he relied upon Mehrab v. Hamid Khan (1985 CLC 1780), Iota Singht v.

Labhoo Singh and another (AIR 1933 Lahore 332), and Allah Bakhsh etc. v. Noor Khan etc. (1980 CLC 498). On the other hand the learned counsel for the respondents relied upon Mehdi Hassan v.

Additional District Judge Rawalpindi (1981 SCMR 1127), Mst. Roshi and otherrs v. Mst. Fateh and others (1982 SCMR 542) and Karim Bukhsh v. Qadir Bakhsh and others (PLD 1950 Lahore 143).

6. A comparison of the precedent cases cited by the learned counsel for the parties shows a change in the trend of application of the provisions of Rule 31 of Order 41, C.P.C. While previously strict adherence was insisted upon, now it has tilted to the viewpoint that even if the ju. Ent is brief, yet if it details the points raised before it and effectually settles the dispute there is no need to write a lengthy judgment with minutest details. In the present case all the pleas that possibly could have been taken were taken before the learned District Judge and he disposed of the same, though he did not state the pleadings of the parties in detail nor discussed evidence with particular reference to each and every issue. Otherwise conclusions drawn by him have not been even disputed by the learned counsel for the petitioners before this Court.

7. Learned counsel for the petitioners referred to Hakim Muhammad Buta and another v. Habib Ahmed and others (PLD 1985 SC 153) to say that the point orlimitation, even if not raised before the two Courts below, it being a legal question, could be raised at this stage. Correct. But the learned Additional District Judge correctly concluded that issue No,4 covered the point of prescription/limitation, parties had led evidence which was properly appreciated by the learned Civil Judge to answer the issue against the petitioners. The property was joint and even if it was mortgaged yet after redemption by one co-sharer the possession of one was to be considered the possession of all in the eye of law. Thus there was no question of adverse possession nor the same had matured into full title as concluded by the two Courts below. The conclusion on facts is not to be easily disturbed in revision.

8. On the point of court-fee the learned counsel for the respondents correctly referred to Mst. Bibi Lal v. Mir Baluch Khan and another (PLD 1962 (W.P.) Quetta 28) and Mohammad Sohail and others v.

Ghulam Rasul and another (AIR 1941 Lahore 152) to say that a suit by a co-sharer for partition was to be stamped with a court-fee of Rs,10 under Article 17 (vi) of the Court Fees Act and it did not fall under section 7 (iv) (b) ibid. The contention of the learned counsel for the petitioners to the contrary is rejected.