2007 C L C 532

[Lahore]

Before Sh. Hakim Ali, J

MUHAMMAD SHAUKAT and others----Petitioners

Versus

Haji GHULAM MUHAMMAD and Others--Respondents

Civil Revision No.147 of 2004, decided on 19th December, 2006.

Court Fees Act (VII of 1870)---

----Sched-I, Art.1, Sched-II, Art.17(vi)---Civil Procedure Code (V of 1908), S.115---

Partition suit---Appeal decided in terms of award of arbitrators---Calculation and
payment of court-fee on memorandum of appeal---Plaintiff filed suit for partition of
property against his brother fixing value for purposes of court-fee and jurisdiction at
Rs.24,000 and no court-fee was paid by plaintiff being exempted from payment of court-
fee---During pendency of suit an agreement was arrived at between the parties for
appointment of arbitrators for decision of the case through intervention of the court---
Award delivered by arbitrators was made rule of the court and same was made part of
decree of the court---Said decree was assailed by plaintiff by filing appeal before
Appellate Court, maintainability of which was challenged on the ground that said appeal
was filed without affixing proper court-fee---Objection petition was dismissed by the
Appellate Court---Contention of defendant was that decree which was passed upon the
award, having fixed value of share of property of plaintiff to the tune of Rs.6,00,000 and
that amount was to be paid to him, appeal filed by plaintiff should have counted valuation
of the court-fee at Rs.6,00,000 and ad valorem court-Pee was to be paid by him on
appeal---Contention of the plaintiff was that in law court-Pee of Rs. 10 only was to be
affixed on the partition suit and that was the proper court-fee to be affixed upon the
memorandum of appeal as well because appeal was a continuation of proceedings of the
suit---Validity---When suit for partition was filed, same could not be valued for the
purposes of court-fee for more than Rs.10, which was fixed according to Art.17(vi)
Sched.II of the Court Fees Act, 1870 as at that stage share of plaintiff in the property
was not separated and valued, but subsequently when share of' plaintiff was specified and
its value was fixed, then it would retch ad valorem court-fee according to valued share of
plaintiff---Share of plaintiff in the property having been valued Rs.6,00,000, it was duty
of plaintiff to value his appeal at Rs.6,00,000 and to fix court-fee ad valorem according to
Art.1, Sched.I of Court Fees Act, 1870---Order of Appellate Court was set aside by the
High Court and plaintiff was directed to value memorandum of appeal in accordance with
value to the extent of his share of property which was Rs.6,00,000 and to pay ad valorem
court-fee in accordance with that value.

Province of Balochistan v. Sardar Muhammad Usman Khan PLD 1987 Quetta 33; Gauri
Shankar v. Anat Ram AIR 1926 Lah. 403; Mst. Bibi Lal Bibi v. Mir Baluch Khan PLD
1962 (W.P.) Quetta 28 and AIR 1924 Lah. 325 rel.

Mian Ahmad Nadeem Arshad for Petitioners.

Syed Muhammad Akhtar Shah for Respondents.

ORDER

SH. HAKIM ALI, J.---Ghulam Muhammad had filed a suit for partition with regard to
Shop No.39, situated in Ghalla Mandi Hasilpur, and Shop No.11-B (half western) of main
Bazar Hasilpur, against his brother Abdul Majeed, who expired during the pendency of
that suit and in his stead legal representatives were impleaded. The value for the purpose
of court-fee and jurisdiction was fixed by the plaintiff at Rs.24,000 in the suit, therefore,
the court-fee was not paid due to it being exempted from payment of court-fee, During

Page No. 1 of 3
the pendency of the suit, there was an agreement entered into between the parties for
appointment of Arbitrators for decision of the case through the intervention of the Court.
Hafiz Khadim Hussain, Muhammad Iqbal and Ch. Muhammad Jameel Johar, were
appointed as Arbitrators who unanimously, on 21-3-2003, decided the dispute referred
and submitted the award. Dissatisfied from the award, both the parties filed objection
petitions against that award but learned Civil Judge came to the conclusion that the award
was correctly delivered by the Arbitrators, so by accepting that award, it was made a rule
of Court on 2-8-2003. The award was made part of the decree of the Court by the learned
Civil Judge, Hasilpur. This decree was assailed before learned Additional District Judge,
Hasilpur, by respondent No.1/plaintiff through filing of appeal. Muhammad Sharif etc.
after appearing in the appeal filed petition objecting to the maintainability of the, appeal
as it was without affixing the proper court-fee. That petition was contested but was
dismissed by learned Additional District Judge on 14-1-2004, hence this civil revision.

2. Learned counsel for the petitioner submits that appeal was filed without appending
proper court-fee, therefore, it was not an appeal in the eye of law. The decree which was
passed upon the award had fixed the value of share of property of the plaintiff to the tune
of Rs.6,00,000 and this amount was to be paid by the defendant to the plaintiff in
compliance of that award/decree, therefore, the appeal must have contained the valuation
of court-fee at Rs.6,00,000 and ad valorm court-fee was to be paid by the appellant on the
appeal before learned Additional District Judge. Learned counsel has supported his
arguments through the judgments of Province of Balochistan v. Sardar Muhammad
Usman Khan PLD 1987 Quetta 33 and Gauri Shankar v. Anat Ram AIR 1926 Lah. 403.

3. On the other hand, learned counsel for respondents submits that in law court-fee of
Rs.10 only was to be affixed on the partition suit and this was the proper court-fee to be
affixed upon the memorandum of appeal as well because the appeal was a continuation of
the proceedings of the suit. Learned counsel has also referred to a judgment reported in
Mst. Bibi Lal Bibi v. Mir Baluch Khan PLD 1962 (W.P.) Quetta 28 to fortify his
argument. According to the learned counsel court-fee of Rs.10 was proper for
memorandum of appeal and learned Additional District Judge had correctly rejected the
petition of the petitioner. He has also submitted that appeal being continuation of the suit
would not fetch any more court-fee than the fee of Rs.10 affixed upon the plaint.

4. After considering the arguments of learned counsel and from the perusal of the record,
I have not been able to agree with the arguments of learned counsel for the respondent
because there is no cavil to the proposition that partition suit when instituted the subject-
matter of it cannot be valued for the purposes of court-fee, for more than Rs.10 which is
fixed according to Article 17(vi) Schedule II of the Court Fees Act No.VII of 1870, the
reason behind at that stage, is that share of c plaintiff in the property in dispute is not
separated, specified and valued. At the time of preliminary or final adjudication when
share of the plaintiff is specified and its value is fixed then it fetches ad valorem court-fee
according to valued share of plaintiff. In the instant case, it is an admitted fact that
share of the plaintiff was valued at Rs.6,00,000 and defendants were directed to pay
Rs.6,00,000 to the plaintiff', therefore, value of the suit had increased and enhanced
to the extent of Rs.6,00,000 and Rs.10 court-fee based on notional value was to
disappear so as to leave place for the ascertained value. In such an event, it was the
duty of the appellant to value the appeal at Rs.6,00,000 and to fix court-fee ad
valorem according to Article 1 Schedule I of the Court Fees Act. In PLD 1987
Quetta 33 above mentioned, it was held that against the decree delivered in terms of
award, where appeal was filed against that decree, the ad valorem court-fees would
be paid for such appeal and amount of ad valorem court-fees would be calculated
according to Article I, Schedule I of Court Fees Act. It was further held that
memorandum of appeal without proper court-fee was not an appeal in the eye of
law. In AIR 1926 Lah. 403, it was held that appeal arising from the decree must bear
ad valorem court-fee.

5. The judgment of PLD 1962 (W.P.) Quetta 28 cited above cannot be held applicable to
the facts and circumstances of the case because in that judgment question involved was
with regard to the affixing of court-fee upon the plaint. But in the instant case, appeal was
filed against the judgment which was passed on the basis of award, in which Rs.6,00,000
were granted to the plaintiff. That decree was being challenged in the appeal, therefore

Page No. 2 of 3
the difference is apparent. In AIR 1924 Lah. 325 (DB), it was held that ad valorem court-
fee must be paid when the appeal was to attach various items allowed or disallowed in the
final decree of partition. Accordingly, the order, dated 14-1-2006 passed by the learned
Additional District Judge cannot be upheld, which is set aside and the respondents/
appellants are directed to value the memorandum of appeal in accordance with value
fixed in the award, i.e. to the extent of their share of the property and to pay ad valorem
court-fee in accordance with that value, on the date to be fixed by the learned Additional
District Judge. For what has been discussed above, the instant civil revision is accepted
with the above noted direction.

H.B.T./M-38/L Revision accepted.

Page No. 3 of 3
2002 Y L R 956

[Karachi]

Before Shabbir Ahmed, J

MUHAMMAD AKMAL KHAN---Plaintiff

Versus

Miss SUMAIRA KOKAB and others ---Defendants

Suit No.524 of 2001, decided on 23rd April, 2002.

Court Fees Act (VII of 1870)---

----S.7(v) & Sched II, Art. 12 (vii)---Civil Procedure Code (V of 1908), S. 149---Suit for
partition---Court fee---Plaintiff who was out of possession of property jointly owned by
parties inherited by them through their father, had filed suit for partition of that property--
Suit could be filed with fixed court fee of Rs.15 under Art. 12(vii) of Sched. II of Court
Fees Act, 1870 applicable to Province of Sindh which covered the suit where it was not
possible to estimate money value of subject-matter in dispute and which was not
otherwise provided for under Court Fees Act, 1870--Plaintiff could be called upon to pay
court-fee once value of his share was determined on trial or defendant would take plea
denying title as well as possession of plaintiff.

Mst. Shah Jehan Begum v. Muhammad Siddique and 5 others PLD 1971 Kar. 920;
Saadullah Khan and 6 others v. Mir Puayo Khan and 14 others PLD 1970 Pesh. 150; Ch.
Mehmood Ahmad v. Mst. Sarwar Sultana and others 1994 CLC 1664; Sher Bahadur
Khan and 3 others v. Anwar Khan and 4 others 1996 CLC 1624 and Diwanchand v.
Dhani Ram AIR 1941 Lah. 123 ref.

Ch. A. Rasheed for Plaintiff.

Abbas Ali, A.A.-G. for Defendants.

Date of hearing: 11th April, 2002.

ORDER

This order will dispose of the office objection regarding payment of proper Court-fee
alongwith application under section 149. The objection has been taken on the
presentation of plaint by the plaintiff, who has filed the suit for partition with the facts
that Mohammad Ajmal Khan son of Fazal Hussain, expired at Karachi on 29-4-1992
leaving behind the plaintiff and defendants as legal heirs i.e. sons and daughters. The
plaintiff is out of possession and has prayed for the partition of the suit property bearing
No.91, Al-Haider Housing Society Project, Cantonment Area„ Karachi being co-sharer
through inheritance with further prayer that each shareholders be put in possession of
their respective portion of the property.

On office objection, the notice to Advocate General Sindh was issued and Mr. Abbas Ali,
learned Additional Advocate General has put his appearance.

I have heard the learned counsel for the plaintiff and learned Additional Advocate
General on Court notice.

It has been contended by Mr. Ch. A. Rasheed that a suit for partition is governed by the
Article 12(vii) of second Schedule to the court Fee Act as at this stage it is not possible to
estimate the value of the subject-matter in issue, which prescribes fixed court-fee of
Rs.15 which has been affixed on the plaint, whereas, learned Additional Advocate
General's contention was that since the plaintiff is out of possession, through partition,
the plaintiff seeks possession of their share, as such the suit would fall under section 7(v)

Page No. 1 of 2
of the Court Fees Act for the purpose of payment of court-fee, which requires ad valorem
Court fee.

Mr. Ch. A. Rasheed has referred the following cases in support of his contention:--

(i) Mst. Shah Jehan Begum v. Muhammad Siddique and 5 others (PLD 1971 Karachi
920); (ii) Saadullah Khan and 6 others v. Mir Puayo Khan and 14 others (PLD 1970
Peshawar 150); (iii) Ch. Mehmood Ahmad v. Mst. Sarwar Sultana and others (1994 CLC
1664) and (iv) Sher Bahadur Khan and 3 others v. Anwar Khan and 4 others (1996 CLC
1624).

View taken in first case was that a suit for partition and separate possession brought by a
co-owner claiming to be in joint possession falls under Article 17(vi) of the Second
Schedule to the Court Fees Act is settled law. The above view was taken on the basis of
rule laid down in Diwanchand v. Dhani Ram's case (AIR 1941 Lahore 123). It may be
stated that is Sindh Article 12(vii) of the Second Schedule has replaced the article 17(vi)
containing same provision with enhancement of court-fee, from Rs.10 to Rs.15 vide
Sindh Finance Act (XV of 1975).

In some of the above-cases, it was also ruled that owner is deemed to be in constructive
possession through the co-sharer.

From the perusal of the plaint, the suit of the plaintiff is an essentially one for partition of
the property jointly owned by the parties inherited through their father. Such a suit can be
filed with fixed court-fee of Rs.15 under Article 12 (vii) of the Court Fees Act applicable
to the Sindh which covered suit where it is not possible to estimate money value the
subject-matter in dispute and which is not otherwise provides for, under the Court Fees
Act. Consequently, office objection is over ruled. The plaintiff can be called upon to pay
the court-fee, once the value of his share is determined on trial or the defendant takes plea
denying the title as well as possession of the plaintiff.

H.B.T./M-362/K Order accordingly.

Page No. 2 of 2
1996 C L C 1624

[Peshawar]

Before Sardar Muhammad Raza and Nasir-ul-Mulk, JJ

SHER BAHADUR KHAN and 3 others---Appellants

versus

ANWAR KHAN and 4 others---Respondents

Regular First Appeal No. 37 of 1994, decided on 19th March, 1996.

(a) Civil Procedure Code (V of 190)---

----O.VII, R.11 & Ss. 96 & 11---Rejection of plaint/dismissal of suit for nonpayment of
court fee by specified date fixed by the Court---Effect---Rejection of plaint and dismissal
of suit---Legal consequences---Rejected plaint could be brought again, within period of
limitation, if short coming involved was removed by plaintiff---Rejection of plaint would
not operate as res judicata between the parties though dismissal of suit would---Where
decree-sheet was erroneously drawn in routine and instead of rejection of plaint, words
dismissal of suit were written it was an act of Court, and same would not adversely affect
any of the patties and would not be beneficial for one at the cost of the other--Plaint can
be rejected by Court only when specific amount of court-fee is asked to be affixed against
specific and definite value of subject-matter determined by the Court without conjecture
and surmises and without leaving any room for parties to resort to their own calculations
and speculations, over and above the mandatory requirement of providing reasonable
time -and opportunity to make good the deficiency within such time; only thereafter
plaint can be rejected---As for affixation of court-fee, approximation in amount is not
allowed, for determination of amount in approximation might ultimately reduce value of
shares of plaintiffs or might happen to enhance it, especially when such value would
become material at the time of proceedings of final decree---Where neither value of
subject-matter was definite nor definite amount of Court-fee was directed to be affixed,
such order was unlawful and could not result in rejection of plaint; and the same could
not be deemed to have been passed in terms of O.VII, R.11, C.P.C.--Court was required
to have first given opportunity to affix court-fee without finally deciding the case---Such
opportunity was not given and order was passed at a moment when Court had become
functus officio---Grant of reasonable time for affixing court-fee was mandatory before
final decision of suit and before passing any order under O:VII, R.11, C.P.C.---Order of
rejection of plaint was not warranted in circumstances.

Sardar Ahmad Yar Jang v. Sardar Noor Ahmad Khan PLD 1994 SC 688 ref.

(b) Court Fees Act (VII of 1870)--

----S.15---Civil Procedure Code (V of 1908), O.VII, R.11-Suit by co- sharers for

partition---Ad -valorem court-fee---Court-fee---Plaintiffs whether liable to affix court-fee
in accordance with the value of their shares, possession of which, was sought through
partition ---Co-sharer-ship being automatic, each co-sharer was deemed to be in
possession of each and every inch of property; no other co-sharer can claim adverse
possession for howsoever long his physical possession might be ---Co-sharer in property
specially through inheritance was, thus, co-sharer in each and every inch of property;
question whether such possession was physical or constructive, was altogether
immaterial---Where such legal heir had asked for partition, substantial relief that he could
ask for was not possession but separation of his share from other co-sharers, regardless of
the fact that while drafting such suit for partition, he had asked for possession--Plaint and
memorandum of appeal, thus did not require to be affixed ad valorem court-fee---When
no court-fee was leviable, order to affix such court-fee was violative of mandatory
provisions of O. VII, R.11, C. P. C. ---Ad valorem court-fee affixed on memorandum of
appeal was thus refundable under S. 15, Court Fees Act, 1870.

Page No. 1 of 4
Dewan Chand v. Dhani Ram and others AIR 1941 LA. 123 and Muhammad Sharif v.
Mst. Natho and others PLD 1965 Lah. 686 ref.

(c) Court Fees Act (VII of 1870)---

----Preamble---Court Fees Act, 1870, was passed in order to secure revenue for the
benefit of the State and not to arm a litigant with weapon of technicality to harass his
opponent.

(d) Civil Procedure Code (V of 1908)---

----O.VII, R.11 & S.96---Rejection of plaint for non-affixation of court-fee---No ad

valorem court-fee being leviable on plaint, rejection of plaint on that count was not
warranted and order of rejection of plaint was set aside---Preliminary decree for partition
of specified shares granted in favour of plaintiffs was maintained while mode of partition
suggested while passing of preliminary decree, was set aside being illegal---Mode of
partition would, however, be considered at the time of proceedings in final decree.

Syed Abdus Salam Sarwar for Appellants. Alhaj Sardar Bahadur Khan for Respondents.

Date of hearing: 19th March, 1996..

JUDGMENT

SARDAR MUHAMMAD RAZA, J.---The disputed property consisting of a large

valuable bungalow and a vacant. site situated in the most populated Mohallah Upper
Malikpura Abbottabad, admittedly belonged to one Sher Afzal Khan of Umar Zai,
Charsadda. He died admittedly leaving behind legal heirs from two wives. One set of
legal heirs from one wife sold the aforesaid property (fully detailed in the heading of the
plaint) in favour of Anwar Khan and 4 others. The other set of legal heirs Sher Bahadur
Khan etc. including the surviving wife (plaintiff No.4) filed a suit for possession by
partition of 47/96 share against the vendees.

2. The vendees contested the suit on various grounds like that of partial partition,
deficient court-fee etc. and ultimately Mr. Muhammad Arshad learned Senior Civil Judge,
Abbottabad vide his judgment and decree dated 23-6-1994 granted the plaintiffs a
preliminary decree for possession through partition of the aforesaid share but, at the same
time, directed the plaintiffs to affix requisite court-fee on the memorandum of plaint
within one month failing which the plaint was to stand rejected. In the operative part of
the judgment some mode of physical partition was also suggested.

3. The plaintiffs/decree-holders did not affix the court-fee but instead filed this regular
first appeal challenging the findings on numerous grounds, the overall effect whereof was
that the conditional grant of decree and the suggested mode of partition practically
amounted to non-suiting the plaintiffs.

4. We had the opportunity of having been apprised of various legal aspects of the case
through the assistance of the learned counsel on either side. It is but obvious that in case
of any deficiency in court-fee, the direction to make good the deficiency is given by the
Court and in case it is not complied with, the plaint is to be rejected under Order VII,
Rule 11, C.P.C. In the judgment of the trial Court the order is that of rejection of the
plaint but while drawing the decree sheet therefrom, the words used are those of the
dismissal of suit.

5. The rejection of plaint and the dismissal of suit are two substantially different
legal phenomenae and entail a few legal consequences that also are materially different.
For example a rejected plaint can be brought again, within the period of limitation, if the
shortcoming involved is removed by the plaintiff. The order does not operate to be res
judicata. On the other hand a dismissal of p, suit operates as res judicata between the
parties. The decree-sheet seeming to have been drawn in routine by the staff of the Court
and not having properly been looked into by the Judge, is an act of the Court and hence

Page No. 2 of 4
would not be jeopardising for any of the parties and would not be beneficial for one at the
cost of the other.

6. Unambiguous language of Order VII, rule 11, C.P.C. would indicate that the plaint can
be rejected by the Court only when specific amount of court-fee is asked to be affixed
against specific and definite value of the subject-matter determined by the Court without
conjectures and surmises and without leaving any room for the parties to resort to their
own calculations and speculations. This is over and above the mandatory requirement of
providing reasonable time and opportunity to make good the deficiency within such time.
It is only thereafter that the plaint is rejected.

7. The leaned trial Judge has held Rs.10,00,000 as the approximate value of the
shares of the plaintiffs and hence has directed the affixation of court-fee thereon. The
approximation in such cases are not allowed because such determination of amount in
approximation might ultimately reduce the value of the shares of the plaintiffs or might
happen to enhance it, especially in the instant case, when such value will become material
at the time of proceedings of final decree. Neither the value of the subject-matter is
definite nor the definite amount of court-fee is directed to be affixed and hence the order
is unlawful and C cannot entail upon the rejection of plaint. In other words it is not an
order at all passed under Order VII, Rule 11, C.P.C.

8. Moreover it was incumbent upon the Court to have first given an opportunity to affix
the court-fee without finally deciding tire, case. Such opportunity also was not given and
the order was passed at a moment when the Court had become functus officio. The grant
of opportunity and reasonable time for affixing court-fee was mandatory before the final
decision of the suit and before passing any order under Order VII, Rule 11, C.P.C.

9. This point was amicably settled by our own Supreme Court in its latest judgment given
in "Sardar Ahmad Yar Jang 'v. Sardar Noor Ahmad Khan" reported in PLD 1994 Supreme
Court 688, wherein it was held that a plaint could not be rejected under Order VII, Rule
11 (c), C.P.C. without first determining the deficiency in the amount of court-fee and
without first allowing reasonable time to the plaintiff to make up the deficiency.

10. So far as the memorandum of appeal is concerned the appellants have affixed an
amount of Rs.3,000, the justification whereof would be settled at the relevant moment.

11. Last question that came up for determination before us was, as to whether the
plaintiffs were at all liable to affix court-fee in accordance with the value of their shares,
the possession of which was sought through partition. This point goes to the very root of
the present dispute and hence requires an elaborate discussion.

12. The instant one is a suit by co-sharers and is essentially for partition. It is a matter of
common knowledge and by now a settled, principle of law that a co-sharer is deemed
always to be in possession of each and every inch of the joint property. Sometimes a co-
sharer is in physical possession of a portion and sometimes he happens to be in the
construction possession. On the other hand we also are mindful of another principle of
law that the devolution of inheritance is an automatic phenomenon. A legal heir under
Muslim Law of Inheritance becomes automatically an owner in the property the moment
a propositus dies and the inheritance devolves. It does not require to be reduced into
writing and it does not require even the attestation of mutation. In the instant case the
plaintiffs admittedly are the legal heirs of Sher Afzal Khan and had become full
owners/co-sharers in the disputed property according to their shares of inheritance.
regardless, of the fact that some co-sharers had sold the same in favour of the present
defendants/vendees.

13. On the one hand we believe under the law, that such co-sharership is automatic and
that each co-sharer is deemed to be in possession of each and every inch of the property,
that no other co-sharer can claim adverse possession for how long so ever his physical
possession may be and; on the other hand when the same co-sharer comes to ask for
partition, we deem him out of possession and ask him to affix court-fee on the
proportionate valuation. This is a paradox in itself and a contradiction in -terms. Such
contradictions and paradoxes do not appear in good laws and in sound interpretations.

Page No. 3 of 4
We, therefore, hold this firm view that a .co-sharer in the property specially through
inheritance is a co-sharer in possession of each and every inch of the property. Whether
such possession is physical of constructive, is all together immaterial. If such legal heir
asks for partition, the substantial relief that he ask for is not the possession but the
separation of his share from the other co-sharers. Regardless of the fact that while
drafting such suit for partition it has become routine to ask for possession.

14. Far back in the year 1941, similar question had come' up before a Full Bench of
Lahore High Court in," Dewan Chand v. Dhani Ram and others" (AIR 1941 Lahore 123).
It was a suit for partition of four houses and the question referred to the Full Bench
related to the amount of court-fee payable thereon. After having elaborately discussed
case-law on the subject, it was held that the.. matter fell under Schedule 2, Article 17 of
the Court Fees Act. The plaint . as well as the memorandum of appeal arising out of such
suit is chargeable with a fixed court-fee of Rs.10 only. Regardless of the fact whether
money value of subject-matter could be estimated or not, it was held sufficient that the,
plaintiffs claimed to be in actual or constructive possession. A legal heir is always
deemed to be in possession of the property and it remains immaterial whether such
possession is actual or constructive. '

15. Similar view was taken by his, lordship Mr. Justice Sardar Muhammad Iqbal of the
Lahore High Court in "Muhammad Sharif. v. _Mst. Natho and others" (PLD 1965 Lahore
686). It was 'observed that, in a suit for partition physical possession of property was not
necessary to attract application of Article 17(VI) of Schedule 2 of the Court Fees Act the
learned Judge left the matter for Courts to see nature of cause of action and relief
claimed.

16. In the instant case, the circumstances suggest that the plaintiffs are legal heirs of the
propositus and are co-sharers by way of inheritance -who shall always be deemed to be in
possession of the property. Whether it is actual or constructive, is immaterial because in
constructive possession, they shall always be deemed to be. Borrowing words from the
Honourable judge, we reiterate that the Court Fees Act was passed in order to secure
revenue for the benefit of the State and not to arm a litigant with a weapon of technicality
to harass his opponent.

17. Thus it is held that in the instant case the plaint as well as the memorandum of appeal
did not require to be affixed an ad valorem court-fee.

18. When no ad valorem -court-fee was leviable the impugned order was illegal and even
was violative of the mandatory provisions of Order VII, Rule 11(c), C.P.C., as held
earlier, and was further passed in a manner when the Court had become fuctus officio. We
further hold that the court-fee affixed on the memorandum of appeal is refundable under
section 15 of the Court Fees Act.

19. Consequently the appeal is accepted, the order passed with reference to Order VII,
Rule 11 (c), C.P.C. is set aside, the preliminary decree for partition of 47/96 shares
granted in favour of the plaintiffs is upheld and the mode of partition suggested while
passing preliminary decree is also set aside being H illegal. The same shall be considered
at the time of proceedings in final decree. The amount of court-fee affixed on the
memorandum of appeal shall stand refunded to the appellants. Owing to the legal
questions involved, parties are left to bear their own costs.

A.A/1950/P Order accordingly.

Page No. 4 of 4
1994 C L C 1664

[Lahore]

Before Mian Nazir Akhtar, J

Ch. MEHMOOD AHMED ---Petitioner

versus

Mst. SARWAR SULTANA and others---Respondents.

C.R. No. 1331 of 1986, decided on 23rd August, 1993.

Court Fees Act (VII of 1870).-

----S. 7(iv)(b) & Art. 17(vi)---Suit for partition of property jointly owned by parties---
Court fee---Mode of payment---Suit for partition of joint property can be filed on
payment of Rs.15 as court-fee under Art. 17(vi), Court Fees Acts 1870, which covers a
suit where it is not possible to estimate money value the subject-matter of dispute and
which is not otherwise provided for under Court Fees Act---Ordinarily, in partition suit, it
was not possible to estimate money value of the subject-matter correctly and it was left to
be decided finally after recording evidence of both parties---Court would thereafter,
require plaintiff to pay deficit court-fee on basis of final determination of the value of
subject-matter in question---Provision of S: 7(iv)(b) of the Act was not applicable in such
cases---Where, however, any person was ousted from the property and his claim to a
share therein was denied by other co-owners then the court-fee was payable under S.
7(iv)(b) for enforcing a right to share in joint family property---There being no denial of
plaintiffs, entitlement to a share in a property in question, mere fact that in evidence some
estimate of the value of property had been given was not enough to apply provision of
S.7(iv)(b), Court Fees Act for payment of ad valorem court-fee at present stage.

Kaluram acid another v. Mehtab Bai and another AIR 1959 Madh. Pra. 181; Jogesh
Chandra Das v. Amulya Kumar Majumdar and others AIR 1957 Tripura 7; Santosh s/o
Gopala and another v. Rama s/o Ragho and others AIR 1949 Nag. 305; Nawab Syed
Muhammad Hashim° Ali Khan and another v. Iffat Ara.Hamidi Begum and others AIR
1942 Cal. 180; Maung Ohn Tin v. Prmpsrm. Chettyar Firm and others AIR 1929 Rang.
311; Muhammad Sakhi and another v. Abdul Rahim and another 1990 ALD 219;
Muhammad Sohail and others v. Ghulam Rasul and another NLR 1991 SD 375;
Muhammad Sohaul and others v. Ghulam Rasul and another 1989 IIJ 91 Comp 41; Mst.
Razan.Bibi and others v. Haji Muhammad Younus and 6 others 1990 ALD 338(2); P.R.
Srinivasa Iyei and others v. K.S. Krishnaswamy Iyer and others AIR 1931 Mad. 49; and
Secretary of State v. A.R. Lakhanna AIR 1933 Mad.430 ref. .

Amjad Hussain Syed for Petitioner.

Syed Shakir Ali Rizvi for Respondents.

Dates of hearing: 17th March and 18th November, 1992.

JUDGMENT

This revision petition arises out of a suit for partition filed by the respondents on 3-7-
1983 in the Court of the Civil Judge, Lahore which is still pending. The
petitioner/defendant filed an application for a direction to the plaintiffs/respondents to
pay ad valorem court-fee which was dismissed by the trial Court vide the order dated 1-2-
1986. The said order has been assailed in the present revision petition.

2. The petitioner's learned counsel submits that respondents Nos. 1 to 6 were out of
possession (as admitted in para 6 of the plaint) and were bound to pay ad valorem court-
fee on the 1/3rd share claimed by them in the disputed property. Moreover * the plaintiffs
had stated in the plaint that the petitioner/defendant was occupying the first and second

Page No. 1 of 3
floor of the house, therefore, ad valorem court-fee had to be paid for the relief of
possession as well. In support of his contention he places reliance on the following
judgments:-

Kaluram and another v. Mehtab Bad and another (AIR 1959 Madhya Pradesh 181),

Jogesh Chandra Das v. Amulya Kumar Majumdar and others (AIR 1957 Tripura 7),

Santosh s/o Gopala and another v. Rama s/o Ragho and others (AIR 1949 Nagpur 305),

Nawab Syed Muhammad Hashim Ali Khan and another v. Iffat Aia Hamidi Begum and
others (AIR 1942 Calcutta 180) and

Maung Ohn Tin v. PRMPSRM. Chettyar Firm and others (AIR 1929 Rangoon 311).

3. On the other hand, the learned counsel for the respondents urged that the exact value of
the property was not ascertainable at present and the suit could be filed on payment of
Rs.15 as court-fee and balance paid at the time of final decree. He adds that the
respondents can give their own valuation of the property for purposes of court-fee and
jurisdiction. They have paid proper court-fee at present and shall make good the
deficiency of the court-fee at the appropriate stage. He places reliance on the following
judgments:-

Muhammad Sakhi and another v. Abdul Rahim and another (1990 ALD 219),

Muhammad Sohail and others v. Ghulam Rasul and another (NLR 1991 SD 375),

Muhammad Sohail and others v. Ghulam Rasul and another (1989 ILJ 91 Comp 41
(Lahore (India)) and

Mst. Razan Bibi and others v. Haji Muhammad Younus and 6 others (1990 ALD 338(2)
(Karachi).

4. The suit filed by the respondents is essentially one of partitions of the property jointly
owned by the parties. Such a suit can be filed on payment of Rs.15 as court-fee under
Article 17 (vi) of the Court Fee Act which provides fixed court-fee of Rs.15 only for
certain cases. Article 17 (vi) covers a suit where it is not possible to estimate at a money
value the subject matter in dispute and which is not otherwise provided for under the
Court Fee Act. In a partition suit ordinarily it is not possible to estimate the money value
of the subject-matter correctly and is left to be decided finally after recording evidence of
both the parties. Thereafter, the Court requires the plaintiff to pay the deficit court-fee on
the basis of the final determination of the value of the subject matter in dispute. The
provision of section 7 (iv)(b) are not applicable in such cases as held in Santosh and
another v. Rama and others (AIR (36) 1949 Nagpur 305), P.R. Srinivasa Iyer and others v.
K.S. Krishnaswamy Iyer and others (AIR 1931 Madras 49) and Secretary of State v. A.R.
Lakhanna (AIR 1933 Madras 430). It is only in cases where a person is ousted from the
property and. his claim to a share therein is denied by the other co-owners that the court-
fee is payable under section 7(iv)(b) for enforcing a right to share in the joint family
property. In the present case, there is no denial of the respondents, entitlement to a share
in the property in dispute. The mere fact that in the evidence sortie estimate of the value
of the property has been given is not enough to apply the provisions of section 7(iv)(b)
for payment of ad valorem court-fee at this stage. P.W.1. Mst. Sarwar Sultana had stated
that she was unable to give the value of the property and then stated that according to her
estimate it would be worth Rs.5/6 lacs. P.W.2 Mrs. Azra Riaz stated that the value of the
house in dispute exceeds Rs.4 lacs. P.W.3 Shahidah Rizmi stated that she did not know
the price of the house and could not say whether it was more-or less than Rs.4 lacs. Thus
the question regarding the estimate of the value of the property still remains in a liquid
form and has to be determined after recording evidence of the defendant. The 8
plaintiffs/respondents have rightly affixed the court-fee of Rs.15 at this stage and cannot
be required to pay ad valorem court-fee under the provision of section 7(iv)(b) of the
Court Fees Act. This view finds support from the judgments in the cases of Mst. Razan
Bibi, and Muhammad Sohail and others relied upon by the respondent's learned counsel.

Page No. 2 of 3
The judgments relied upon by the petitioners' learned counsel proceed on their own
distinguishable facts and are not applicable in the present case.' As mentioned above the
plaintiffs are not excluded claimants from the joint family property. Their claim as heirs
of the common ancestor Khushi deceased as admitted by the petitioner/defendant.
Therefore, the judgment in the case of Kaluram and another heavily relied upon by the
petitioner's learned counsel which relates to suit for partition by an excluded co-parcener
is not relevant. The case of Jogaish Chandar Das relates to the question of jurisdictional
value of the suit. It was held that the plaintiff who seeks partition of his share out of a
larger property should not be compelled to value his suit for the purposes of jurisdiction
on the value of the entire property and that valuation for the purposes of jurisdiction is to
be determined according to the value of the plaintiffs' share. Similarly the other
judgments relied upon by the petitioner's learned counsel relate to cases of ouster
requiring determination of entitlement in the property first and therefore, are not relevant.

5. For the foregoing discussion, I find no merit in this petition which is dismissed. The
parties are left to bear their own costs.

AA/M-1452/L Revision dismissed.

Page No. 3 of 3
1993 M L D 724

[Lahore]

Before Ch. Amjad Khan, J

TAJ DIN and others---Petitioners

Versus

Mst. SARDAR BEGUM and others---Respondents

'Civil Revision No.1930 of 1992, decided on 21st December '1992.

Partition Act (IV of 1893)-

----Ss.3 & 4---Court Fees Act (VII of 1870), S.7(iv)(b)---Suit for partition by co-sharer---
Value of court-fee---Every co-sharer was entitled to claim himself to be holding
possession of common property through other co-sharer in actual possession thereof---
Court-fee of value of rupees 10 paid by plaintiffs/co-sharers on their plaint filed for
partition of common property, was rightly found sufficient by Trial Court.

Saadullah Khan and 6 others v. Mir Playo and 14 others PLD 1970 Pesh. 150 and
Rachappa Subrao Jadhaw Desai v. Shidappa Venkatrao Jadhaw Desai AIR 1918 PC 188
ref.

Qazi Zia Zahid for Petitioner.

ORDER

While conceding that the parties are co-sharers, learned counsel has attempted to
distinguish this case on the basis of averments of para. No.2 of the plaint, to the effect
that the defendants have unauthorisedly included the land in suit in their flour-mill. His
contention is that therein 'stands made admission about ouster of the plaintiffs who have,
therefore, to pay a court-fee on the market value of the suit property which runs into
several lacs of rupees.

I cannot read such an admission in the statement about unauthorised possession contained
in the said paragraph of the plaint which is nothing more than a mere statement about
actual possession of the property, in fact held by the defendants. There is no claim made
in the plaint to the effect that the plaintiffs had, at any stage, held the actual possession
wherefrom they could be dislodged, therefore, ouster of the plaintiffs is not liable to be
inferred from the said pleading, more particularly so because the defendants have not at
ail pleaded ouster in their written-statement, therefore, despite the said statement in the
plaint, this suit continues to be a simple suit for separate possession through partition
maintained by some of the co-sharers against the others and since by virtue of law laid
down in Saadullah Khan and 6 others v. Mir Playo and 14 others (PLD 1970 Pesh. 150),
every co-sharer is entitled to claim himself to be holding the possession of common
property through the other co- A sharer in actual possession thereof, therefore, court-fee
of the value of Rs.10 paid by the plaintiffs on their plaint has been rightly held by learned
trial Judge to be sufficient.

2. Not only that there is no error of law or jurisdiction involved in the order 'passed by the
trial Court to uphold the court-fee already paid as being correct but also there can be no
personal interest of the defendants involved in insisting that further court-fee is in the
need of having to be exacted from the plaintiffs. As has been held in Rachappa Subrao
Jadhaw Desai v. Shidappa Venkatrao Jadhaw Desai (AIR 1918 PC 188), petitioners
cannot be permitted to use this objection as a weapon of technicality against the
respondent plaintiffs. The defendant-petitioners do not have any locus standi to maintain
this revision petition on the mere question of court-fee.

Page No. 1 of 2
3. Since in net result, a correct order stands passed by the trial Court as regards the proper
court-fee, therefore, there is no occasion made out for discretionary power of revision
being exercised in this case on account merely of the trial Court's omission to hold any
inquiry about the market value of the property within the contemplation of section 10 of
the Court Fees Act. Moreso because nothing could possibly turn thereupon in the
admitted facts of this case.

4. Revision petition is without substance. As such, it is dismissed - in limine.

H.B.T./T-37/L Revision dismissed.

Page No. 2 of 2
1992 C L C 553

[Lahore]

Before Muhammad Amir Malik, J

WALAYAT BEGUM and others---Petitioners

versus

WAZIR BEGUM and others---Respondents

Civil Revision No. 93/13 of 1983, decided on 7th July, 1991.

(a) Civil Procedure Code (V of 1908)-

----O.XLI, R.31 & S. 115---Applicability of O.XLI, R. 31, C.P.C.---Where all the pleas
that could have been taken were taken before First Appellate Court and it disposed of the
same, though it did not state the pleadings of parties in detail nor discussed evidence with
particular reference to each and every issue, such judgment though brief, yet it detailed
the points raised before it and effectually settled the dispute, there was no need to write a
lengthy judgment with minutest details---Although no strict adherence to provisions of
O.XLI, R.31, Civil Procedure Code, 1908, could be imputed to judgment of Appellate
Court, yet conclusions drawn by it could not be disputed in revision .

Mehrban v. Hamid Khan 1985 CLC 1780; Tota Singh v. Labhoo Singh and another AIR
1933 Lah. 332; Allah Bakhsh etc. v. Noor Khan etc. 1980 CLC 498; Mehdi Hassan v.
Additional District Judge, Rawalpindi 1981 SCMR 1127; Mst. Roshi and others v. Mst.
Fateh and others 1982 SCMR 542 and Karim Bukhsh v. Qadir Bakhsh and others PLD
1950 Lah.143 ref.

(b) Judgment-

---- Where Appellate Court had disposed of appeal, though it did not state the pleadings
of the parties in detail nor discussed evidence with particular reference to each and every
issue, such judgment though brief, yet it detailed the points raised before it and
effectually settled the issues, there was no need to write a lengthy judgment with minutest
details.

(c) Limitation Act (IX of 1908)--

----Art.144---Adverse possession---Limitation---One co-sharer's entitlement to claim

adverse possession over joint property---Property in question, being joint, even if same
was mortgaged yet, after redemption by one co-sharer, his possession was to be
considered possession of all co-sharers in the eye of law--One co-sharer could not claim
adverse possession over the property in question, nor his possession could be said to have
matured into full title.

Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153 rel.

(d) Civil Procedure Code (V of 1908)---

----S. 115---Conclusions on facts were not to be easily disturbed in revisional jurisdiction.

(e) Court Fees Act (VII of 1870)---

----S. 7 (iv) (b) & Art. 17, Sched. II---Co-sharer's suit for partition ---Court fee---Suit by a
co-sharer for partition was to be stamped with a court-fee of Rs.10 under Art. 17 (vi),
Sched. II of Court Fees Act, 1870 and such suit did not fall under S.7 (iv) (b), Court Fees
Act, 1870.

Page No. 1 of 3
Mst. Bibi Lal v. Mir Baluch Khan and another PLD 1962 (W.P.) Quetta 28 and
Muhammad Sohail and others v. Ghulam Rasul and another AIR 1941 Lah. 152 rel.

Syed Zamir Hussain for Petitioners.

Sh. Ziaullah for Respondents.

Date of hearing: 25th June, 1991.

JUDGMENT

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 Shafi, 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 Shafi 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 30-6-1979 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 had 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 governed by custom. These pleas were controverted
and the pleadings of the parties led to the settlement of following issues:--

(1) Is this suit bad for non-inclusion of any property left by Hafiz Din Mohammad? OPD.

(2) Does Partition Act, bar this suit? OPD,

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

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

(5) Have the defendants acquired ownership rights of the property in dispute, if so, to
what extent? OPD.

4. 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 purposes of court-fee. With respect to the first limb of his argument
he relied upon Mehrab v. Hamid Khan (1985 C L C .1780), Tota Singh v. Labhoo Singh

Page No. 2 of 3
and another (AIR 1933 Lahore 332), and Allah Bakhsh etc. v. Noor Khan etc. (1980 C L
C 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
others 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 judgment 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 of limitation, 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 (A I R 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.

9. Resultantly the revision petition fails and is hereby dismissed.

AA./W-2/L Revision dismissed.

Page No. 3 of 3
P L D 1961 Supreme Court 349

Present: A. R. Cornelius, C. J., S. A., Rahman, B. Z. Kaikaus and Hamoodur Rahman, JJ

AJIRUDDIN MONDAL AND ANOTHER-Appellants

versus

RAHMAN FAKIR AND OTHERS-Respondents

Civil Appeal No. 39-D of 1960, decided on 28th April 1961.

(On appeal from the judgement and order of the High Court of East Pakistan, Dacca,
dated the 28th May 1959, in appeal from Original Decree No. 96 of 1956, read with the
judgment dated the 8th March 1960, in Application for leave to appeal to the Supreme
Court No. 72 of 1959).

(a) Special leave to appeal to Supreme Court---

---Granted where law point involved required an authoritative decision by Supreme

Court-[Scot for partition-Jurisdictional value of suit when plaintiff alleges joint
possession -(East Pakistan case)]-Court Fees Act (VII of 1,370), Sch. II, Art. 17 (v-a)-
Suits Valuation Act (VII of 1887)-Constitution of Pakistan (1956), Art. 160.

(b) Stare decisis-----

----Principle-Application-[Jurisdictional value of partition suit where plaintiff" is in joint

possession]-Principle applied (Cornelius, C. J.)-Principle not applied (S. A. Rahman and
Hamoodur Rahman, JJ.).

(c) Suits Valuation Act (VII of 1887)------

----S. 11-Partition suit by plaintiff, in joint possession-Value for jurisdiction-Plaintiff

fixing at value of entire estate, High Court, holding that such value is value of plaintiff's
share, returning Memorandum of appeal to be presented to District Court-Held (per
Cornelius, C. J.) Supreme Court could make a direction under S. 11 even though no
ground of appeal was taken in terms of that section.

(b) Court Fees Act (VII of 1870)----

-----Sch. II, Art. 17 (v-a) read with S. 7 (vi-A) and with Suits Valuation Act (VII of 1887),
Ss. 8 & 9-(East Pakistan cave)-Partition suit-Value for purposes of jurisdiction where
plaintiff is in joint possession-Value of share of plaintiff (per majority: S. A. Rahman,
Kaikaus and Hamoodur Rahman, JJ.)-Value of entire estate (per Cornelius, C. J.)-[Patak
Chandara Haldar 9 D L R 190 and Khayertullah Mondal and others v. Kamala Kanta
Saha and others P L D 1960 Dacca 565 approved (by majority) ; disapproved (by
Cornelius, C. J.). Bai Shevantibai v. Janardhan Raghunath Warick 71 I A 142
distinguished (by S. A. Rahman, J.), ref. (by, Kaikaus, J.) ; Rajani Kanta Pal v. Raja Bala
Dasi I L R 52 Cal. 125 considered (by Hamoodur Rahman, J.)]

Held (by majority : S. A. Kahman, Kaikaus and Hamoodur Rahman, JJ.) that the value
for jurisdictional purposes of a suit for partition is the value of the plaintiff's share in the
joint property, where the plaintiff is in joint possession.

[The above view was based mainly on the application of the principle that the value of
suit for purposes of jurisdiction is to be determined by the value of the relief sought, and
further, on the necessity to avoid the anomaly arising out the other view (viz., that such
value is the value of the entire estate) when compared with provisions of section 7 (vi-A),
Court Fees Act, 1870, which prescribes the value of the plaintiff's share as the value for
jurisdiction where the plaintiff is excluded from possession].

Page No. 1 of 19
Patak Chandra Haldar 9 D L R 190 and Khayertullah Mondal and others v. Kamala Kanta
Saha and others P L D 1960 Dacca 565 approved.

Bai Shevantibai v. Janardhan Raghunath Wariek 71 I A 142 distinguished.

Rajani Kanta Pal v. Raja Bala Dasi I L R 52 Cal. 125 considered.

Held (per Cornelius, C. J.) that the value of a partition suit, where the plaintiff' is in
possession should be the value of the entire joint property.

[This view was based mainly on the necessity to uphold, consistently with the principle
of stare decisis, a course of decisions in Bengal by which litigants have been guided for
half a century. The question, indeed, should not (according to Cornelius, C. J.) have been
made the subject of a judicial decision but should rather have been dealt with, within the
field of "subordinate legislation" under section 9, Suits Valuation Act, 1887, which
empowered High Courts to fix jurisdictional values of suits in certain cases].

Patak Chandra Haldar 9 D L R 190 and Khayertullah Mondal and others v. Kamala Kanta
Saha and others P L D 1960 Dacca 565 disapproved.

M.A Khandker Senior Advocate Supreme Court (Shafiqur Rehman, Abdul Hakim and
Abdul Wadud Chowdhury Advocates Supreme Court with him) instructed by Abdul
Wadood Mian Attorney for Appellants.

Respondents: Ex parte.

Date of hearing: 13th April 1961.

JUDGMENT

CORNELIUS, C. J. I have given to the question raised in this appeal my best

consideration and my view is that the proper order which should be made in this case is
one allowing the appeal and directing that the Memorandum of Appeal which Ajiruddin
Mondal and Khairat Ali Mondal had filed before the High Court should be recalled and
proceeded with in that Court. I regret greatly that in coming to this conclusion I find
myself in disagreement with my learned brethren. The occasion is one however which I
consider it appropriate to use for the purpose of examining a situation which has been
apparently in an unsatisfactory state for a considerable number of years.

The relevant facts to be stated for the purpose of my judgment lie within a small
compass. The appellants before us were plaintiffs in the suit, claiming as successors-in-
interest to certain defendants from whom they had purchased a share in a joint family
property. Stating that they were owners and in possession of the share of their vendors,
they claimed to be put into separate possession of a defined share in the property. The suit
was thus by co-sharers in a joint property claiming to be joint possessors of such property
and seeking to have their share demarcated and to be placed in separate possession. The
suit fell clearly under item (v-a) in Article 17 of the Second Schedule to the Court Fees
Act, and was taxable with a fixed court-fee of Rs. 20. The item in Article 17 reads as
follows and it will be convenient to reproduce along with it item (vi) in the same
Article :-
---------
"(v-a) for partition and separate possession |

of a share of joint family property or of joint |

I property, or to enforce a right to a share in | Twenty rupees

I any property on the ground that it is joint |

family property, or joint property if the plaintiff |

is in possession of the property of which |

Page No. 2 of 19
he claims to be a coparcener or co-owner. |

--------

--------

(vi) every other suit where it is not possible |

to estimate at a money-value the subject | Twenty rupees

matter in dispute, and which is not otherwise |

provided by this Act." |

---------

A fee of Rs. 20 by way of court-fee was paid, but as to jurisdiction, it was placed in the
plaint at Rs. 5,350, being the market value of the entire joint estate, out of which the
plaintiffs claimed their separate share. The question which has arisen in this case is
whether for the purpose of jurisdiction, the suit was correctly valued at the market-value
of the entire estate, and whether the value should not be confined to the interest claimed
by the plaintiffs in the estate. The point appears to be of importance only for determining
the forum of the trial and the consequent appeal. Under the law in force, if the suit had
been correctly valued at a sum in excess of Rs. 5,000 for the purposes of jurisdiction, the
appeal Jay in the High Court where the Memorandum of Appeal war, actually presented.
If, on the other hand, the value be placed at less than Rs. 5,000, the appeal would fall to
be heard by a District Judge. The finding of the High Court is that the correct value for
the purpose of jurisdiction was below Rs. 5,000, and accordingly the Division Bench
returned the Memorandum to the appellants for presentation in the Court of the District
Judge.

My first .reason for thinking that this appeal should be allowed is that as the point of
valuation for purposes of jurisdiction was not taken in the Court of first instance, under
section 11 of the Suits Valuation Act, no objection on the ground of over-valuation or
under-valuation should have been entertained by the appellate Court, i.e. the High Court,
even if that Court were of the opinion that the valuation was wrong, unless the Court held
the opinion that "`the over-valuation or under-valuation thereof has prejudicially affected
the disposal of the suit (or appeal, on its merits". On the facts, as they appear, no such
prejudice can be found. I observe that the learned Judges of the Division Bench which
dealt with the application of the appellants for a certificate to enable them to appeal to
this Court, expressly referred to this section, and suggested that if the appellants were to
move a petition for review of the judgment directing return of the Memorandum, they
could be confident that the matter would be dealt with under section 11 aforesaid. The
suggestion was not accepted, and no review was attempted, nor was section 11 mentioned
in the petition for special leave to appeal, or in the concise statement of the appellants, in
this Court. I consider however that sitting in finial appeal, and having power to do full
justice in the case, it is open to us to make a direction under section 11, even though the
point was not referred to in his arguments before us by Mr. M. H. Khundkar. The Courts
have no interest in multiplying proceeding, and if the dispute between the parties can be
brought to finality more swiftly by the appeal being dealt with in the High Court,
assuming what is obvious, that this can be done without prejudice to its disposal on the
merits, that would be of advantage to all concerned.

Mr. Khundkar's principal objective in bringing this appeal for a final decision by this
Court is to obtain an examination of the correctness of a recent decision on the point by
the Dacca High Court, namely, the case published as Khayertullak Mondal v. Kamala
Kanta Saha (P L D 1960 Dacca 565). It was held in that case that the correct valuation of
a suit such as the present one, for purposes of jurisdiction is not the value of the whole
estate, as has been believed and followed in this region for over half a century, but is the
value of the share which the plaintiff seeks to secure, in separate possession. After a
careful examination of the relevant provisions of the Court Fees Act and the Suits

Page No. 3 of 19
Valuation Act, I have formed the opinion that the question of valuation for jurisdiction in
such a suit cannot be settled by mere judicial decision on a priori grounds, but must be
based either upon interpretation or interpretative application of the provisions of the Suits
Valuation Act, or if this be not possible, then by the method of subordinate legislation
under section 9 of that Act.

That section empowers the High Court, with the previous sanction of the Provincial
Government, to make direction fixing the valuation for purposes of jurisdiction in suits
not falling within paragraphs (v) and (vi) and clause (d) of paragraph (x) of section 7 of
Court Fees Act, and which possess the quality that in the opinion of the High Court, their
subject-matter does not admit of being satisfactorily valued. It appears that no directions
have been issued under this section by the Dacca High Court or by its predecessor in this
region, namely, the Calcutta High Court. That is not the case with all the High Courts.
For instance, the Lahore High Court has issued an elaborate set of rules on the subject,
which is supported by a lengthy schedule. There are specific pr, visions in this schedule
for cases falling under section 7 (iv) (b), Court Fees Act relating to suits to enforce the
right to share in any property on the ground that it is joint family property. For the
purposes of the Suits Valuation Act, it is prescribed by the Lahore High Court that where
the subject-matter is land, the valuation shall be fixed under section 4 of the Act read with
rules made by the Provincial Government under section 3, and this will be in relation to
the reliefs sought as stated in the plaint. The Punjab Rules under section '3 and the Lahore
High Court Rules under section 9 of the Suits Valuation Act will be found printed as
Appendix V to the valuable commentary on the Court Fees Act and the Suit Valuation Act
by Hasu, published by the Eastern Law House Limited, Calcutta.

With reference to suits of the nature here in question, it has been settled for over 50 years
by a chain of decisions given by the Calcutta High Court, that the correct valuation is the
value of the whole estate in which the share is claimed. Suits of this nature fall within the
general description stated in section 7 (iv) (b), Court Fees Act, viz., suits "to enforce the
right to share in any property on the ground that it is joint family property. The amount of
court-fee payable on the suit was ad valorem, in proportion "to the amount at which the
relief sought is valued in the plaint or memorandum of appeal". This sub-clause was
omitted from section 7, Court Fees Act by a Bengal amendment as far back as 1935. It is
important to note this, as it is a point of appreciable weight to be borne in mind in
considering this case that there is a regional aspect to this law. That is apparent from the
power given to the Provincial Government by section 3 of the Suits 'valuation Act to
make rules for determining the valuation of suits under certain clauses in section 7 of the
Court Fees Act, which values are to apply also, under section 4 of the Suits Valuation Act,
for the valuation of properties in suits in cases falling under section 7 (iv), Court Fees
Act, as well. It appears even more prominently from section 9, Suits Valuation Act which
has already been mentioned. These provisions have the effect of impressing upon the
mind the necessity of regarding the law and its application in a regional manner, and
therefore, of obliging the Court to give due weight to such a consideration as that, in a
particular 'region over a long period of years, the law has been applied for the resolution
of disputes affecting property in a particular way. A long settled practice of a High Court
in a matter of procedure not governed by rules has often to be allowed a binding effect,
since the rights of litigants may be materially affected hereby. The case is much more
clear where the question is one of jurisdiction of the Courts which are established in a
graded series, to which the litigant classes are entitled to have recourse, according to their
respective jurisdictions as settled by law, in which expression, decisions of long-standing
by the superior Court of the region must be allowed. a place. It cannot be denied that the
right to approach a Court of superior jurisdiction rather than one of inferior jurisdiction,
is a valuable right, and if upon a long settled course of decision by the High Court of
particular region, litigants within that region have been allowed the right upon a certain
view as to valuation, to approach a superior Court of appeal, whereas upon a different
view, they 'might have been required to go to an inferior Court, I am inclined to the view
that the right reserved by the settled course of decision within that region should not
lightly be disturbed. It is a case which in my judgment can be brought within the
principle of stare decisis in the general public interest, and for the enforcement of due
discipline in the operation of the Courts. If there to be disturbance, I am clearly of the
opinion that it should be effected, in a case like the present, by the method of subordinate
legislation under section 9, Suits Valuation Act.

Page No. 4 of 19
Now, it had been held by the Calcutta High Court that on a correct interpretation of the
Court Fees Act, no suit affecting land could be brought within section 7 (iv) (b) of the
Court Fees Act, and the reason given was as follows, namely, that where the plaintiff is
out of possession, he has to sue for recovery of possession by partition and must pay ad
valorem fees as for a suit for possession, while if he is in joint possession, then the suit is
one filling under item (vi) in Article 17 of the Second Schedule to the Court Fees Act, i.e.
a suit, "where it is not possible to estimate at a money-value the subject-matter in
dispute" for which a fixed fee is provided. In other words, it was held to be not possible
to estimate in terms of money the exact advantage which the plaintiff would enjoy from
having his joint possession of the entire estate converted into separate possession of his
defined share in the estate. That being the view, it was logical to conclude that the
plaintiff was unable to set any value upon the relief which he sought in such a case, and
no ad valorem court-fee could therefore be charged, and therefore, a fixed court-fee was
provided in Schedule It. It is mostly with regard to suits of this nature, where the court-
fee is fixed, and therefore the machinery of section 8, Suits Valuation Act, making the
valuation for purposes of jurisdiction equal to that for purposes of court-fee is not
available that require action under section 9 of that Act to enable fixation of the
jurisdictional valuation.

It appears that in implementation of this view the Court Fees Act was amended for
Bengal. Firstly, sub-clause (b) was omitted from section 7 (iv) of the Court Fees Act.
Secondly, a new clause (vi-A) was added in the same section, which provided that where
the plaintiff having been excluded from possession of the joint family property, files a
suit for partition and separate possession or otherwise to in-force a right to a share, he
shall pay court-fees "according to the market-value of the share in respect of which the
suit is instituted". In such a case, by the operation of section 8, Suit Valuation Act, the
valuation for purposes of jurisdiction would also be the market-value of the plaintiff's
share in respect of which he was suing. At the same time, as these two amendments were
made, a third amendment was made for Bengal in Article 17, by addition of an item (v-a)
which provided a fixed fee now standing at Rs. 20 as the court-fee payable on suits by a
plaintiff in possession who seeks partition and separate possession of a share of joint
property or to enforce a right to a share in such property. Coming as this item does
immediately before item (vi) which relates to every other suit where it is not possible to
estimate the money value of the subject-matter in dispute" the implication seems clear,
viz. that in the view of Legislature, a suit by a plaintiff in joint possession, for partition,
and for separate possession of his share fell with the category of suit in respect of which
the relief sought could not be estimated at a money value. As we have seen, the method
of requiring the plaintiff to value the relief which he, seeks was rendered unavailable in a
suit of this kind by the excision of clause (b) from section 7 (iv) for the Bengal Province.
The question of what value was to be placed upon the suit for purposes of jurisdiction
was thus left at large. It was settled by the Calcutta High Court over a series of years in
the following way, namely, that in such suits the valuation for the purposes of jurisdiction
was the value of the entire estate to be partitioned. Arguments have been advanced in
support of this view, with which I find myself in sympathy, although I entirely disagree
that a judicial decision was the appropriate method by which the question was to be
resolved. To my mind there can be no doubt that when one of a number of co-sharers,
whether he be in possession or out of possession, seeks to obtain severance of his share,
so that he can enjoy it separately and without interference from any of the other co-
sharers, he is attempting something which is calculated to disturb the settled occupation
and enjoyment by each of the other co-sharers of the whole estate. So long as that estate
remains joint, he and each of the other co-sharers has a right in respect of every particle
of the estate, to have and to enjoy such particle and it must be supposed that prior to the
suit, those rights have been reconciled with each other in an orderly fashion, and have
continued to be thus enjoyed over a period of years. Disturbance in the enjoyment of
these rights is an interference which affects every particle of the estate in this sense that
no co-sharer is secure in his possession or enjoyment of any such particle until the suit is
finally decided, and the plaintiff's share has been partitioned off. Such disturbance will be
of an extreme nature where the plaintiff was previously out of possession. In that case
every particle of the land could be liable to be taken forcibly out of the possession and
enjoyment of the co-sharers 'in possession, and this makes it plain that the jurisdiction of
the Court pervades the entire estate and is not confined to the fraction of it which the

Page No. 5 of 19
plaintiff may eventually be found entitled. These and other aspects of the matter have
been fully dealt with in a long series of judgments delivered not only in the Calcutta High
Court, but also in the Patna High Court and the Madras High Court. It is true that in a
number of other High Courts; a contrary view has been taken, namely, that the valuation
for the purposes of jurisdiction in suits of this kind is limited by the value of the share
which the plaintiff is seeking, but without accepting that these High Courts possessed,
any more than did the Calcutta Patna and Madras High Courts, the right in law to 'fix the
valuation irrespective of interpretation of provisions made by or under the Suits Valuation
Act, the reason may fairly be advanced for not allowing the view of the Courts other than
the Calcutta High Court to carry the same weight as the view of that High Court that
those Courts were laying down the law for other regions. The law of suits valuation was
expressly framed by the Central Legislature of the sub-continent so as to give definitive
weight to control by regional authorities, both Executive and Judicial.

But even excepting the argument by which the view of the Calcutta High Court is
supported in regard to the true valuation of suits of the nature here in question. I am of
the opinion that in coming to that conclusion on the judicial side, and leaving the matter
at that, there has been defeat of the legislative provision by which the resolution of this
question was to be effected in a different mode, namely, under section 9 of the Suits
Valuation Act. The decision, in effect, has the quality of legislation in a field reserved by
the relevant statute for subordinate legislation. . For the mode of section 9, Suits
Valuation Act, it was necessary that there should first be a direction by the High Court.
Speaking generally, one may say that the settled view of the High Court expressed in a
course of decisions lasting over fifty years would have at least as much effect as a
direction, although, in form it might not be the same thing. But for the purposes of
section 9 a mere direction by the High Court was not sufficient. It was necessary also that
the direction should be supported by the sanction of the Provincial Government. The
necessary provision was never made in this mode. Yet, if regard be had to the purpose of
section 9, it might be thought that the Calcutta High Court had fulfilled it in a different
mode, for the true 'purpose could only be to save the litigant public from falling into
doubts and difficulties such as the difficulty of being pushed from one Court to another,
by settling it once for all what the valuation should be for the particular type of suit.
Through the firm decision of the Calcutta High Court that in suits for partition, the Courts
having jurisdiction would be those Courts which had jurisdiction in respect of the entire
estate in terms of money-value, litigants had been enabled over a long series of years to
determine for themselves in which Court their suits and appeals of the relevant kinds
properly lay.

The effect which has been produced in relation to the situation by the judgments of the
Dacca High Court delivered in the case of Patak Chandra Haldar (9 D L R 190) and the
more recent case of Khayertullah Mondal and others v. Kamala Kanta Saha and other' is
to diminish the valuation and bring it down to the value of the share which the, plaintiff
claims. These decisions have been given within the last four years, and do not possess the
sanction of long standing, and moreover the present is the first occasion when the matter
has come up before the Supreme Court for examination The objection that anything in the
way of a settled course of practice would be disturbed if the Full Bench decision in the
last mentioned case were upset, can hardly be taken.

In the view which I take of the matter, viz. that the definitive resolution of the question
has been placed by the Legislature within the sphere of subordinate legislation, there has
been an irregularity in the use by the Calcutta High Court of the method of judicial
decision to control the relevant jurisdiction, and this error is being repeated in the
decision by the Dacca High Court, varying from that Calcutta decision. It is in my view,
time that the matter is looked. at in the correct light, and the true intention of the
Legislature is carried out. There is no doubt that to ascertain exactly in terms of money
the advantage to a plaintiff who is in joint possession of a joint estate, obtaining by means
of a suit, separate possession of a demarcated share, is impossible and the case therefore
falls squarely within section 9 of the Suits Valuation Act. A fixed court-fee gets over the
difficulty from the taxation point of view, but provides no aid, such as the ad, valorem
court-fee provides, for ascertaining the correct jurisdictional value. I consider that the
proper course in the case is not that the, Dacca High Court should alter the long
established line of decisions by which litigants in the region have hitherto been guided to

Page No. 6 of 19
their advantage, although it appears clearly enough to be an encroachment into the sphere
of legislation, but that it should undertake the duty of legislation under section 9 of the
Suits Valuation Act. Until that is done, my opinion is that the rule of stare decisis requires
that the previous view of the Calcutta High Court should be allowed to prevail.

If my view be correct, this appeal should be allowed and the High Court should be
directed to recall the Memorandum of Appeal from the District Judge, and to dispose of it
in accordance with law. But as my learned brethren are of the opposite view, and that is
also the view of the majority of the Bench, the appeal will be dealt with as proposed by
them, viz. that it will be dismissed.

S. A. RAHMAN, J.-This is a plaintiffs' appeal brought by special leave of this Court and
raises the question whether in a suit for partition of joint property by a person, claiming
to be in joint possession thereof, jurisdiction is determined by the value of the share of
the plaintiff in the property or the value of the joint property as a whole. The question has
arisen in the following circumstances.

The plaintiffs-appellants instituted partition Suit No. 58 of 1954 in the Court of the
Subordinate Judge at Bogra, for partition by metes and bounds, of their twelve annas
share in 8.85 acres of land, of which they claimed to be in joint possession with the
respondents. The entire lands in suit were valued at Rs. 5,350 for the purposes of
jurisdiction. A fixed court-fee of Rs. 20 was paid, as provided for in Article 17 (v-a) of
Schedule II to the Court Fees Act. The trial Judge dismissed the suit on the 22nd June
1955 and the plaintiffs appealed to the High Court. As the value of the plaintiffs' twelve
annas share in the property in suit was less than Rs. 5,000 the High Court held that the
appeal lay to the District Judge. Under section 21 of the Bengal, Agra and Assam Civil
Courts Act, it is only appeals in suits in which the subject-matter is valued at over Rs.
5,000 that an appeal lies to the High Court. The Memorandum of appeal was, therefore,
directed to be returned to the appellants for presentation to the proper Court. An
application for grant of a certificate to appeal to this Court was also refused.

The Court Fees Act, 1870, which is a Central Act, was amended by Provincial Act VII of
1935 and paragraph 7 (vi-A) was inserted therein to read as follow:-

"In suits for partition and separate possession of a share of joint family property or of
joint property, or to enforce a right to a share in any property on the ground that it is joint
family property or joint property-

if the plaintiff has been excluded from possession of the property of which he claims to
be a co-parcener or co-owner according to the market-value of the share in respect of
which the suit is instituted."

Under this provision, it is clear that if a plaintiff out of possession, seeks either joint
possession of joint property or separation of his own share and its enjoyment in severalty,
he will have to pay court-fee ad valorem on the market value of his share so far as this
Province is concerned. At the same time, in Schedule II to the Act, item (v-a) was
inserted in Article 17 thereof, which provided for a fixed court-fee in suits "for partition
and separate possession of a share of joint family property or of joint property, or to
enforce a right to a share in any property on the ground that it is joint family property or
joint property, if the plaintiff is in possession of the property of which he claims to be co-
parcener or co-owner."

Section 8 of the Suits Valuation Act, 1887, enacts: "Where in suits other than those
referred to in the Court Fees Act, 1870, section 7, paragraphs (v), (vi) and (ix), and
paragraph (x), clause (d), court-fees are payable ad valorem under the Court Fees Act,
1870, the value as determinable for the computation of court-fees and the value for
purposes of jurisdiction shall be the same". It will be noticed that this section contains no
exception in favour of suits contemplated by section 7 (vi-a). In a case, falling within
section 7 (vi-a), therefore, the jurisdictional value would follow the value of the plaintiff's
share fixed for purpose of court-fees. This section, however, could not be pressed into
service for cases falling within Article 17 (v-a) of the Second Schedule to the Act, as only
a fixed court-fee as contrasted with ad valorem court-fee is payable in such suits. No

Page No. 7 of 19
rules have been framed under section 3 of the Suits Valuation Act by the Provincial
Government or under section 9 thereof by the High Court. There is thus no distinct
provision of law under which the jurisdictional value in a suit of the type under
consideration could be fixed.

The question that falls for determination is what should be regarded as "the value of the
suit" within the meaning of section 21 of the Bengal, Agra and Assam Civil Courts Act in
such cases. The Calcutta High Court apparently has been following the view that the
value of the suit shall be the value of the whole property if the plaintiff was in joint
possession, but that if he was out of possession, the value of his share alone should be the
basis for the jurisdictional value. The Dacca High Court has differed from this view in a
Full Bench decision, reported as Khayertullah Mondal v. Kamala Kanta Saha (P L D
1960 Dacca 565). It was held therein "that in suits for partition where the plaintiff claims
to be in joint possession, if the suit as framed discloses that the object of the suit is
merely to separate the share of the plaintiff from that of the defendant, the value of the
share would determine the forum of the suit". While discussing this question, the learned
Judges have pointed out that the view expressed by the Calcutta High Court. though
shared by the Patna High Court, has been dissented from by several other High Courts in
India. It is contended before us, that the view that found favour with the Dacca High
Court is erroneous in so far as it extends the principle, governing suits for partition when
the plaintiff's is out of possession embodied in statutory provisions, to cases where the
plaintiff is in joint possession of the property in suit. The very fact, that the Legislature
has not provided for such a contingency, it is urged, should have persuaded the learned
Judges not to disturb the long line of decisions given by the Calcutta High Court and
applied to the area which is now East Pakistan. Learned counsel for the appellants has
apparently in mind the principle of stare decisis. That principle has been successfully
invoked where interference with a long-accepted view would disturb settled rights to
property. In a matter of fixing the forum for a trial or appeal, however there would be no
such pressing consideration militating against change of precedent.

It was argued before the Dacca High Court and has been reiterated before us that a
partition suit is one in which really a joint declaration of the rights of all persons
interested in the property is sought, that in such a suit every defendant has a right to ask
to have his own share divided, that a co-sharer claiming partition claims his respective
share in every inch of the property sought to be partitioned, that the question of retention
of possession of particular parcels of the land by some of the parties may arise and that,
therefore, the subject matter of the suit should be regarded as the whole property and not
merely the share claimed by the plaintiff. The Dacca High Court has opined that in
determining the question of jurisdictional value, the allegations made by the plaintiff
alone must be considered and that the pleas raised by the defendants should not affect the
question. It was pointed out by the learned Judges that in suits of this nature; the plaintiff
does not seek to enforce a right to a share in the property on the ground that it is joint
property but seeks to obtain separate possession of a share therein and thus merely asks
for a change in the mode of enjoyment thereof The view was, therefore, expressed that
the same principle should be adopted for fixing the jurisdictional value in suits falling
within Article 17 (v-a) of the Second- Schedule as prevails in the case of suits covered by
section 7 (vi-a). Reference was made to a 'decision of the Privy Council, reported as Bai
Shevantibai v. Janardhan Raghunath Warick (71 I A 142) as lending support to this view.
In that case, appellant's claim for partition of joint family property had been dismissed by
the Courts below on the ground of limitation. It was held that the value of the subject-
matter in dispute on appeal to the Privy Council for the purposes of section 110 of the
Code of Civil Procedure, was the value of the share of the joint family property in respect
of which the appellant was claiming. Indeed, this proposition was not controverted before
the Privy Council. Their Lordships went on to examine whether the decree, refusing
partition on the ground that the claim was barred by the law of limitation involves
directly or indirectly some claim or question to or `respecting' the joint family property as
a whole". It was observed by the Privy Council that their Lordships "feel no doubt that a
question as to the title of the plaintiff to the share which she claims in the joint property
does not become a question respecting -the whole of the joint family estate merely
because if her title is established it will result in the joint family estate being partitioned'".
This remark, in my opinion, affords some assistance to the position adopted by the Dacca
High Court.

Page No. 8 of 19
The matter may be looked at another way. If in a suit for partition, where the plaintiff is
in possession of the joint property, the forum is determined by the value of the whole
property, while in case the plaintiff is out of possession, only the value of his share is
taken as the basis for the jurisdictional value; it would involve the anomaly that a suit
asking for a higher relief would be adjudicated upon in a lower forum and that asking for
a lesser relief which was included in the other suit might go to a 'higher Court. The merit
of the view taken by the Dacca High Court is that it avoids such an anomaly. I would,
therefore, hold that the Dacca view should be upheld as in consonance with the general
principles and the spirit of the statutory provisions governing suits for partition by
plaintiffs who are out of possession. I would, dismiss the appeal, but in view of the
circumstances, leave the parties to bear their own costs in this Court.

B. Z. KAIKAUS J. -This is an appeal by special leave against the order of High Court of
East Pakistan refusing to entertain an appeal on the ground that it lay to the District
Judge.

The suit out of which this appeal arises was one for partition of land. The-plaintiff had
alleged in the plaint that he was in joint possession of the property in suit. He had valued
the - whole property at Rs. 5,350, he himself being entitled to a 12 anna share in it. The
suit having been dismissed he filed an appeal to the High Court. Following Khayertullah
Mondal and others v. Kamale Kanta Saha and others (P L D 1960 Dacca 565) which is a
Full Bench case, the learned Judges of the High Court held that value for jurisdiction of
the suit was the value of the share of the plaintiff, and that being below Rs. 5,000 the
appeal lay not to the High Court but to the District Judge in accordance with section 21 of
the Bengal, Agra and Assam Civil Courts Act which provides that in cases where the
value of the original suit is less. than Rs. 5,000 appeal will lie to the District Judge. The
sole question in the present appeal is whether the value of the original suit is the value of
the share of the plaintiff or the value of the whole of the joint property in suit.

The value far jurisdiction has to be determined in accordance with the provisions of the
Suits Valuation Act. The scheme of that Act is that by reference to classes of suit, as they
appear in the Court Fees Act, it provides by its section 8 that the value for jurisdiction for
some of those classes will be the same as the value for court-fees; by its section 9 it
authorizes the High Court to frame rules regulating the value for jurisdiction for some
classes, and for the remaining classes it makes no provisions at all except that, by section
8 it authorizes the Provincial Government to frame rules for determining the value of land
or an interest in land. In a case which is not covered either by section. 8 or by a rule
framed by the High Court or the Provincial Government the value for jurisdiction will be
the true value of the subject-matter of the suit to be determined by the Court itself. '

The case before us is one for which there is no provision either in section 8 or in any rule
and the Court has itself to determine the proper value of the subject-matter of the suit.
The, question therefore to which the Court would have to address itself in a case like the
present would be what is the subject-matter of a suit for partition, and this is the point
which will ultimately have to be discussed -in this judgment. But before proceeding to
discuss it I have to mention an aspect which is almost conclusive of the matter unless we
are prepared to introduce a serious inconsistency in the-assessment of jurisdiction values.
That aspect is that so far as East Pakistan is concerned the jurisdictional value of a suit
for partition in case the plaintiff is out of possession is in accordance with section 8 of the
Suits Valuation Act the value of the plaintiffs' share. For an explanation of this matter it is
necessary to make some reference to Provincial amendments made .to the Court Fees Act
in Bengal. In 1935 by a Provincial amendment section 7 (iv) (b) of the Court Fees Act
which related to a suit to enforce a right to a share in joint family property was deleted
and section 7 (vi-a) was added which ran:

"In suits for partition and separate possession of a share of joint family property or of
joint property, or to enforce a right to a share in any property on the ground that it is joint
family property or joint property-

Page No. 9 of 19
If the plaintiff has been excluded from possession of the property of which he claim to be
a coparcener or co-owner according to the market value .of the share in respect of which
the suit is instituted."

This subsection applies not only to joint family property but to all joint property and fixes
the value for the purpose of court-fee as the share of the plaintiff. At the same time, to
Article 17 of Schedule II, sub-article (v-a) was added which runs:-

----------

"in Bengal (v-a) for partition and separate |

possession of a share of joint family property |

or of joint property, or to enforce a right to |

a share in any property on the ground that | Fifteen rupees

it is joint family property or joint property. |

If the plaintiff is in possession of the property |

of which he claims to be a coparcener or co |

owner." |

------------

According to this provision a fixed court-fee was to be paid in a case where the plaintiff
was in possession of the joint property. Previous to this addition in Article 17, the various
High Courts of India had taken the view that the case where a plaintiff was in possession
would fall under Article 17 (vi) which provides for a suit the subject-matter of which it is
not possible to estimate in money value.

On account of the introduction of section 7 (vi-a) the value for jurisdiction of a suit for
partition where the plaintiff was out of possession became fixed at the value for court-
fees on account of section 8 of the Suits Valuation Act, which funs :-

"Where in suit other than those referred to in the Court Fees Act, 1870, section 7,
paragraphs (v), (vi) and (ix), and paragraph (x), clause (d), court-fees are payable ad
valorem under the Court: Fees Act, 1870, the value as determinable for the computation
of court-fees and the value for purposes of jurisdiction shall be the same."

In accordance with this section if the suit is not one of the classes mentioned in it and
court-fees are payable ad valorem, the value for court-fee and jurisdiction has to be the
same. Section 7 (vi-a) is not one of the provisions mentioned in section 8 and court-fees
have under it to be paid ad valorem, therefore the value for jurisdiction and court-fee of
such a suit are indentical.

Under the circumstance, it is not quite easly for the plaintiff to allege that the value for
jurisdiction of the present suit should be more than the value of the plaintiff's share. In
suit for partition where the plaintiff is out of possession obviously the plaintiff is claiming
a higher relief than in a case where he is in possession ; not only that, the relief in the first
kind of suit actually includes the relief in the second kind of suit. When the plaintiff is out
of possession of joint property the grant to him of separate possession of his partitioned
share amounts really to two reliefs

(1) joint possession of his share, and,

(2) the transformation of that joint possession into separate possession of his partitioned
share, for (and it is a proposition well supported by authority) a plaintiff out of possession
is not entitled to partition unless he first gets joint possession. If the Legislature assess the

Page No. 10 of 19
jurisdictional value in case of two reliefs at the value of the plaintiff's share it is evidently
creating an inconsistency to say that the jurisdictional value in the case of one out of
those two reliefs should be the value of the whole property. The difficulty which this
inconsistency will creates may be illustrated by referring to an example Suppose, the
plaintiff who alleges that he is in joint possession of property of which he holds one-
tenths share files a suit for partition fixing the jurisdictional value at the value of the
whole property. The defendant objects that the plaintiff is not in possession and an issue
is farmed, and it is decided that the plaintiff is not in possession: The plaintiff is then
allowed to amend the plaint (because it is only proper that he should be allowed to amend
by including a prayer for possession). Now while the plaintiff adds this relief he will at
the same time have to bring the jurisdictional value to only one-ten of what it originally
was.

Another inconsistency will be created by the acceptance of the plea of the appellant bet to
that inconsistency no reference was made at the hearing and I prefer dealing with it latter
in the judgement at what I regard as a more appropriate place.

The argument on behalf of the plaintiff-appellant is this the view of the Legislature that in
a suit for partition when the plaintiff is out of possession the subject-matter is only the
share of the plaintiff is really not correct ; in so far as there is a specific statutory
provision we are bound to obey the Legislature and, therefore, in a case where the
plaintiff is out of possession the jurisdictional value must be according to the share of the
plaintiff but there is no reason why we should accept this wrong basis in a case whose we
are not bound do so, and therefore even if this inconsistency is involved we should in a
case where the plaintiff is in possession accept what on logical reasoning is the value of
the subject-matter of the suit for partition.

This is the way the plaintiff puts it. I would put it a little different, that is, that we should
not create an inconsistency unless we are forced to do so. However, let us consider, apart
from section 7 (vi-a) of the Court Fees Act which after all is only a Provincial
amendment, what should be the jurisdictional value of a suit for partition? The answer
depends upon the view we take as to what is the subject-matter, of such a suit is the
subject-matter of a suit for partition the right of the plaintiff or the property in relation to
which he claims that right? If it be the right of the plaintiff there can be no question that
in a case like the present the jurisdictional value would be only the share of the plaintiff. `
I do not think it is possible to support the proposition having regard to the various
provisions of the Court Fees and the Suits Valuation Acts that the Subject-matter,' of a
suit is the physical property to which the right of the plaintiff relates. When a suit is filed
for joint possession of a share of immovable property nobody has ever contended, nor
cite`' it be reasonably contended that either the value for court-fees or the value of
jurisdiction is to be determined on the basis of the whole property, and not the plaintiff's
share Suits for easements, for benefits, to arise out of land, for leases, for injunctions,
may relate to large areas of immovable property, but there valuations is in accordance
with that value of the right claimed by the plaintiff. No plaintiff is bound to pay court fee
on the entire property to which his right relates. A tenant who is dispossessed by his
landlord can recover the property on paying court-fees on one year's rent and the
jurisdictional value in such a case follows the value for court-fees. Similar is the case of a
landlord suing to eject his tenant, the right in dispute in such a suit being .only the
encumbrance .on the owner's right created by the lease. It is not necessary to multiply
examples, for it is to difficult to contest this proposition, but I may in-this connection
refer to the fact that in jurisprudence ownership, strictly speaking, relates not to any
physical property but to a right. As is stated in Salmond's Jurisprudence "Ownership in its
most comprehensive significance denotes the relation between a person and any right
vested in him. That which a man owns in this sense is in all, cases a right". When a
plaintiff comes to Court he claims certain rights which are in dispute, it is that which is
the subject-matter of the suit. I want to draw attention here pointedly to the fact that it is
the rights of the "plaintiff" that is to c institute the subject-matter. The subject-matter has
no reference to the rights of the defendant or to the issues which may incidentally arise in
the suit. Quite apart from the provisions of the Court Fees and the Suits Valuation Acts it
must be head on general principles the subject-matter of a suit is the right claimed by the
plaintiff in respect of which he prays for relief and it runs through the provisions of these
two Acts that the subject-matter is such right alone.

Page No. 11 of 19
There two possible arguments in favour of` the view that the whole property is the
subject-matter of the partition suit. The first is that title to the whole of the property may
be determined in such a suit; the second is that the Court may have to deal with the whole
property by partitioning it and in such a case the whole property becomes the subject-
matter.

So far as the first point is concerned, it will be observed that there will be no reason for
treating a suit for joint possession differently from a suit for partition. When a person
sues for joint possession of one-hundreth share, title to the whole of the property may
incidentally have to be determined in the same way as in a suit for partition, but it is not
contended that in a suit for joint possession jurisdictional value should be the value of the
whole of the joint property: Similarly, in cases where some right in relation to corporeal
property is claimed by the plaintiff the questions of title in respect to whole of the
property may have to be decided. In suits for rights of way on land, for rights of fishery,
navigation, mining, rights of lease and mortgage question of title may have to be decided
relating to the whole propery. One would have to run counter to the whole scheme of the
two Acts and a volume of case law in order to hold that in such cases the subject -matter
of the suit is the property in relation to which a right is claimed. It will not be out of place
to refer here to section 3 of the Suits Valuation Act. It empowers the Provincial
Government to frame rules for determining the value of "land" or an "interest in land". If
in a suit for the recovery of an interest in land the subject matter was the whole land and
not merely the interest there would be no need to determine the value of the interest.

As regards the contention that the whole property may have to be divided, and if the
whole of the property is dealt with, it becomes the subject-matter of the suit we will have
to consider what is the nature of a partition suit. But let me state what I regard to be the
fundamental point never to be lost sight of, namely, that the valuation of a suit depends
upon the right which the "plaintiff" claims. This value is fixed as soon as a suit is filed,
and is not enhanced or diminished, except in cases where the valuation is originally
notional, and the true value is to be determined only after a finding by the Court.
However, to proceed with the question of the scope of a suit for partition, what are the
matters which the Court is to decide. It appears to me the ordinary rule that the Court is
concerned with the fight of the plaintiff applies to this suit as it applies to other stilts. In a
partition suit the only issue as to title would be does the plaintiff own the share he claims?
The Court may while determining the right of the-plaintiff incidentally determine rights
of other persons, but that will be only to the extent to which it is necessary to do for
determining the title of the plaintiff. If the Court decides the question of title in favour of
the plaintiff it will then proceed to partition the property, but let me point out here that the
partition is really an enforcement of the right which has been found in favour of the
plaintiff and may well have been left to the executing Court. It is just a matter of
procedure that we call the decree declaring the right of plaintiff a preliminary decree; we
may well have called it a final decree and the actual partition may have been regarded as
an execution and in that case there could not have been an argument that because the
Court has to partition the whole property, the whole property is the subject-matter, for the
jurisdictional value cannot increase after decree. As things stand at present, up to the
stage of preliminary decree the subject-matter is only the share of the plaintiff and it is
only when the Court may have to divide the whole property that the subject-matter in
accordance with the argument I am considering increases. Let me state here that the
plaintiff himself can never ask for the separation of shares of the defendants. He has no
right to pray for that, for he can only enforce his own right and that is confined to the
separation of his share. The original scope of the suit is therefore only the separation of
the share of the plaintiff and it is only if the defendants too ask for a separation of their
shares that a question arises as to whether the subject matter has increased and the
jurisdictional value has been affected. The original jurisdictional value has to be the share
of the plaintiff for the defendants may not ask for separation of their shares at all. The
Court may simply determine the share of the plaintiff and separate it. In the view that I
take I am supported by the decision of the Judicial Committee of the Privy Council in Bai
Shevantibai v. Janardhan Raghunath Warick (71 I A 142 at p. 147). That was a partition
suit which had been dismissed on the ground of limitation by the High Court and
certificate for leave to appeal having been applied for a question arose as to whether:

Page No. 12 of 19
(1) the subject-matter on appeal to the Privy Council was the share of the plaintiff or the
whole of the joint family property ; and

(2) the appeal involved directly or indirectly a claim or question as to title to the whole of
the joint property.

Both questions were answered in the negative as will appear from the following extract
from the judgment

"Their Lordships are satisfied that the appellate Court were correct in holding that the
value of the subject-matter in dispute on appeal to His Majesty in Council must be taken
to be the value of the share of the joint family property in respect of which the appellant
is claiming, and, indeed, this view was not disputed before their Lordship's Board. A
further question however, remains, namely, whether the decree refusing partition on the
ground that the claim is barred by the law of limitation involves directly or indirectly
some claim or question to or "respecting" the joint family property as a whole. Their
Lordships do not find it necessary to decide whether the words of the second clause in
section 110 can on their true construction ever refer to any property but that outside the
suit. It is enough for the purposes of the present case to say that their Lordships feel no
doubt that a question as to the title of the plaintiff to the share which she claims in the
joint property does not become a question respecting the whole of the joint family estate
merely because if her title is established it will result in the joint family estate being
partitioned."

I proceed now to consider the situation that arises if some defendant asks for separation
of his share. There is, strictly speaking, no rights at all in a defendant to have his share
partitioned any person who wants some relief from a Court has to file a suit and to pay
court-fee on it. The defendant may be out of possession and he cannot have his share,
separated and possession granted to him just because he happens to be a defendant in the
suit. Even if he be in possession, he wants to get relief for which he would otherwise
have to pay court-fee under Article 17 (v-a), Schedule II. If a defendant wants to have his
share partitioned the ordinary rule should be that he files a suit for it. We may, waiving a
formality, allow him to make such a claim even in a written statement provided he pays
court fee on this claim. In such a case, truly speaking, the written statement is only a
plaint, and proceedings in the two suits, that is one filed by the plaintiff and the other by
the defendant, are deemed to be consolidated, and the answer to the question as to what is
henceforth the jurisdictional value of the suit would depend upon whether we regard the
two suits as one or whether we regard it an ordinary case of consolidation. If it is a simple
consolidation of two suits, i e., there is no effect on jurisdictional value. If we take the
view that the defendant who has prayed for a partition of his share should also be
regarded as plaintiff in the suit then the jurisdictional value would be the total of the
values of the shares of the plaintiff and of those defendants who claim to have their
shares separated. The question as to which of these two views should be adopted is not
necessary for the purpose of this case. I would prefer the view that the jurisdiction value
of the original suit does not change and one of my reasons for taking this view is that
assuming that the other view is also possible, we would prefer the view which does not
create a clear inconsistency. It is to be kept in mind that even in a suit where the plaintiff
is out of possession the defendants may claim to have their shares separated, and if we
are to be consistent then even in such a suit jurisdictional value should increase by the
fact that defendants have claimed separation of shares, but we are debarred from doing so
on account of section 8 of the Suits Valuation Act in a case where the plaintiff is out of
possession and therefore we' should not do it even in a case where he is in possession. I
would put the matter thus : to avoid all inconsistencies we should take the view that the
initial value of the suit never changes, that the suit substantially comes to an end with the
determination of the plaintiff's right and the proceedings subsequent to such
determination are proceedings for enforcement of that right and therefore proceedings in
execution and the mere fact that in enforcement of the right of plaintiff we have to take
some action in respect of other shares should riot affect jurisdictional value.

I will now state the inconsistency which I said I will state at an appropriate place. Section
4 of the Suits Valuation Act will clearly stand in the way of the interpretation contended
for by the appellant in a case where rules have been framed by a Provincial Government

Page No. 13 of 19
under section 3 of the Act. According to section 4 if rules have been framed with respect
to an interest in land the jurisdictional value of the suits which fall under Article 17,
Schedule II, cannot exceed the value of the interest in land to which the suit relates The
suit for partition which the plaintiff is in possession falls under Article 17 (v-a) so far as
East Pakistan is concerned, and under Article 17 (vi) with respect to West Pakistan. The
value of the interest in land to which the suit relates is clearly the value of the shares of
the plaintiff alone, for the suit as it is filed relates only to the interest of the plaintiff and
the question of the inclusion in the jurisdictional value of the value of the interests of the
defendants arises only if and when a claim for partition of shares is made by a defendant.
I do not think it is possible to contend that initially the suit relates to any interest except
that of the plaintiff. Therefore, the initial valuation must always be put at a figure less
than the value of the interest: As there is no provision in section 4 for subsequent
enhancement of the valuation of a suit the valuation must remain as it originally was.

The plaintiff who asks us to create inconsistencies has not even the support of much
authority. In pre-Partition India it was only the Calcutta High Court which took the view
that in a suit for partition the subject-matter was the whole of the joint property and the
Patna High Court did follow this view. Learned counsel for the appellant confessed that
the was unable to cite any case from any other High Court which supported him, and the
judgment of the Full Bench reported in P L D 1960 Dacca 565 on which the decision of
the High Court in the present case was based refers to a number of cases where the
various Indian High Courts have taken the contrary view. There is also the Privy Council
judgment to which I have already referred and which I regard as an authority directly in
point for there is no reason for holding that the subject-matter on appeal, in case a suit for
partition is dismissed as time-barred, is different from the subject-matter of the suit.

I would hold that the jurisdictional value could not exceed the share of the plaintiff and
that the appeal should be dismissed, without any costs for the respondents have not
appeared.

HAMOODUR RAHMAN, J.-This appeal, by special leave, is against an order of a

Division Bench of the High Court of East Pakistan directing that the memorandum of
appeal filed in First Appeal No. 96 of 1956, be returned for presentation before the proper
forum.

The said First Appeal arose out of a partition suit which was valued for purposes of
jurisdiction at Rs. 5,350. The plaintiffs, who are also the appellants in this Court, claimed
to have purchased an undivided 12 annas share in the properties sought to be partitioned
from the pro forma defendants in the suit on the 1st of June 1953. According to them;
their vendors jointly owned and possessed the said lands along with their other co-sharers
and since their purchase they had also been jointly owning and possessing the same.

The reliefs that they claimed in the suit were as follows :-

(1) That the properties in the Schedule below be partitioned and a specified Saham for 12
annas shares of the plaintiffs be made and they do get Khas possession therein.

(2) That a Commissioner be appointed by the Court and the works of partition be done by
him.

(3) That plaintiffs do get all other relief to which they may be entitled in law and equity.

The High Court of East Pakistan relying on another decision of a Division Bench of the
same Court in the case of Patak Chandra Haldar and another v. Sademan Howladar and
others (P L R 6 Dacca 628), took the view that in a suit for partition the value of the
plaintiff's share determines the jurisdiction and as such in the case under consideration,
since the value of the plaintiff's share was below Rs. 5,000, the proper forum for the
appeal was the Court of the District Judge and directed the return of the memorandum of
appeal.

The plaintiffs then applied to the High Court under clause (c) of Article 159 of the late
Constitution read with section 109 (c) of the Code of Civil Procedure, for a certificate

Page No. 14 of 19
that the case was a fit one for appeal to this Court, on the ground that it involved a
substantial question of law relating to the valuation of partition suits for the purposes of
jurisdiction. The High Court again refused to grant the certificate, as in its view the
question of law involved had in the meantime been dealt with by a Full Bench consisting
of five Judges of the same High Court in the case of Khayertullah Mondal and others v.
Kamalakanta Saha and others (12 D L R 326 ; P L D 1960 Dacca 565).

Special leave was, however, granted to the appellants, as it was considered that the point
requires an authoritative decision by this Court. The point of law, as formulated in the
order granting leave, is as follows :--

"Whether in a suit for partition of joint property by a person, claiming to be in joint

possession, the valuation for purposes of jurisdiction is determined by the value of the
share of the plaintiff in the property or the value of the whole property."

The contention put forward on behalf of the appellants is that the view taken by the High
Court of East Pakistan both in the case of Patak Chandra Haladar and others and in the
case of Khayertullah Mondal and others is erroneous and is based on a mis-appreciation
of the true nature and scope of a partition suit. It is also complained that it has had the
effect of disturbing a long established practice which had been prevailing in this part of
the country since 1924.

It appears that the Calcutta and the Patna High Courts have consistently since the
decision in the case of Rajani Kanta Pal v. Raja Bala Dasi (I L R 52 Cal. 125) recognised
the view as firmly established that in a case for partition the valuation of the entire
property sought to be partitioned determines the forum of the trial as also of the appeal.
This practice was also followed in the High Court of East Pakistan until the decision in
the case of Patak Chandra Haladar, when the said High Court took the view that the
Calcutta practice with regard to suits for partition, where the plaintiff was excluded from
possession could not be treated as the correct practice after the Introduction of paragraph
(vi-a) in section 7 and Entry No. (v-a) in Article 17 of Schedule II of the Court Fees Act,
1870, by the Court Fees (Bengal Amendment) Act, 1935. In the said case the plaintiff,
who was out of possession, claimed partition and paid ad valorem court-fee on the market
value of the share but valued the suit as well as the appeal preferred against the decree
passed in the suit at a higher figure for purposes of jurisdiction. R was not necessary in
the said case for the High Court to deal with the question of valuation for purposes of
jurisdiction in respect of suits for partition where the plaintiff claimed to be in joint
possession but the High Court purported to lay down the same rule for determining the
valuation for purposes of jurisdiction in such cases as well. As this was subsequently
considered to be in the nature of an obiter dictum, a reference was made to the Full Bench
in the case of Khayertullah Mandal for clarification of the latter question.

The Full Bench reconsidered the question and laid down the following rules :-

"(a) That in suits for partition where the plaintiff claims to be in joint possession the value
of his share would determine the forum of the suit, if the suit, as framed, discloses that
the object of the suit is merely to separate the share of the plaintiff from that of the
defendant or defendants.

(b) On the other hand, if the object of the suit is to partition ' the entire estate, the value of
the entire estate will determine the forum of the suit."

The judgments in both of the above-mentioned cases were delivered by me and I have
now had the good fortune of listening to the criticisms of my own previous judgments. I
propose, however, to deal with this question once again, as far as practicable, without
being obsessed by my previous views in the matter.

So far as the jurisdiction of Civil Courts, in this Province, is concerned, it has been
defined in sections 18 to 21 of the Bengal, Agra and Assam Civil Courts Act, 1887 (now
called the East Bengal Civil Courts Act, 1887).

Page No. 15 of 19
Under section 18 thereof the jurisdiction of a District Judge or Subordinate Judge
extends, subject to the provisions of section 15 of the Code of Civil Procedure, to all
original suits and under section 19 the jurisdiction of a Munsif is limited to suits of which
the value does not exceed Rs. 1,000. The Provincial Government can, however, by
notification empower a Munsif to try suits upto Rs. 2,000 or even upto Rs. 3,500, if he
holds Court at a place where the Court of a Subordinate Judge is held.

So far as appeals are concerned section 20 provides that appeals from decrees or orders of
District and Additional Judges shall normally lie to the High Court unless otherwise
provided by any enactment. The forum for appeals from decrees or orders of other Civil
Courts has been prescribed by section 21 in the following manner : -

"21 (1) Save as aforesaid, an appeal from a decree or order of a Subordinate Judge shall
lie,-

(a) to the District Judge where the value of the original- suit in which or in any
proceeding arising out of which the decree or order was made did not extend five
thousand rupees, and

(b) to the High Court in any other case.

(2) Save as aforesaid, an appeal from a decree or order of a Munsif shall lie to the District
Judge."

It will be observed from these provisions that the forum of original trials and appeals are
to be determined with reference to "the value of the suit". Hence the question which has
to be considered in the present case is as to what is the value of a suit for partition.

It is, of course, contended on behalf of the appellants, as was contended in the High
Court, that the value of such a suit is the value of the entire estate sought to be partitioned
and not merely of the particular share which the plaintiff claims. In a suit for partition, it
is said, the relief that is really asked for is a joint declaration of the rights of all persons
interested in the properties. Thus, even a defendant in such a suit can claim a partition of
his share and, furthermore, that in order to determine even the share of the plaintiff the
Court has necessarily to deal with his right in or title to the entire estate, for, strictly
speaking, he is interested in every inch of that estate.

Before proceeding to determine as to how the value of a suit is to be computed, I think, it

should first be ascertained as to what is meant by the value of the suit. These words have
not been defined in any statute but, it seems to me, hat they must have some relation to
the relief claimed in the suit or the subject-matter in dispute: Thus in the case of a suit for
the recovery of money it is the amount claimed and in the case of a suit for the recovery
of property it is the money value of the property sought to be recovered. In other cases
where an objective standard for determining the value exists, it is the money value of the
loss which the plaintiff apprehends would result to him but where no such standard exists
the value at which he estimates such loss is usually accepted. If this be so, then in a suit
for partition too it should be the value of the relief claimed. The learned counsel for the
appellants does not dispute this but what he wishes to urge is that in order to assess the
proper value of the relief one must keep in mind the true nature and scope of the relief
claimed which in a partition suit, according to him, involves the determination of the title
of all the parties interested in the estate sought to be partitioned.

Now a suit has also to be valued for the purposes of payment of court-fees under the
Court Fees Act but the learned counsel for the appellants does not consider that any
useful purpose will served by referring to its provisions, for, according to him, they only
lay down a special set of rules for the determination of court fees and a suit ought not to
be valued for the purposes of jurisdiction on the basis of those rules. Apart from this,
there has been, in the past, so much conflict of opinion over the question as to which
particular provision of the Court Fees Act applies to suits for partition that a reference to
them would only create more confusion. Thus, some High Courts in India have taken the
view that paragraph (iv) (b) of section 7 applies to suits for partition, but the Calcutta and
Patna High Courts have always held that this particular provision does not apply to

Page No. 16 of 19
partition suits at all. According to these to High Courts in a case, where the plaintiff was
in joint possession, Entry (vi) of Article 17 of Schedule II of the Court Fees Act applied
prior to 1935 and in a case where the plaintiff was out of possession he had to sue for
recovery of possession and the case fell under paragraph (v) of section 7 under which the
plaintiff was required to pay ad valorem court fees as in a suit for recovery of possession.

So far as Bengal is concerned, it is said, that this dispute was set at rest by the amending
Act of 1935 which deleted section 7 (iv) (b), added a new paragraph (vi)(a) to section 7
and introduced a new entry being Entry No. (v-a) in article 17 of Schedule II of the Court
Fees Act.

Paragraph (vi-a) is in these terms :-

"In suits for partition and separate possession of a share of joint family property or of
joint property, or to enforce a right to a share in any property on the ground that it is joint
family property or joint property- "

if the plaintiff has been excluded from possession of the property of which he claims to
be a coparcener or co-owner according to the market value of the share in respect of
which the suit is instituted."

This Entry (v-a) read as fallows-

-------

"for partition and separate possession of a share of |

Joint family property or of joint property, or to en- |

force a right to a share in any property on the ground | Twenty

that it is joint family property or joint property if | Rupees

the plaintiff is in possession of the property of which |

he claims to be a coparcener or owner." |

---------

Notwithstanding these provisions, the Calcutta High Court continued to follow the
practice that for purposes of jurisdiction value of the entire property sought to be
partitioned should be taken into account.

It is contended that this was rightly done as by making these amendments in 1935 the
legislature gave statutory recognition to the view of the Calcutta High Court that partition
suits are to be treated differently on the basis of the possession of the plaintiff. Thus,
where he was out of possession, he would be required to pay ad valorem Court-fees but
where he continued to be in joint possession he would only be required to pay a fixed
Court-fee.

Although it has been suggested that the provisions of the Court Fees Act do not
specifically deal with the question of valuation for the purposes of jurisdiction,
nevertheless, it has been argued that by accepting this differentiation for the purposes of
Court-fees the Legislature accepted the Calcutta view in toto both with regard to Court-
fees as well as to valuation for purposes of jurisdiction.

This contention, however, does not appear to me to be correct, for, the provisions of
section 8 of the Suit Valuation Act 1887, clearly refer to certain provisions of the Court
Fees Act and require that in certain cases the value open which the Court fees are
computed will also determine the value for jurisdiction. Section 8 is in these terms :-

Page No. 17 of 19
"Where in suits other than those referred to in the Court Fees Act, 1870, section 7,
paragraph V, VI and IX, and paragraph X, clause (d), Court-fees are payable ad valorem
under the Court Fees Act, 1870, the value as determinable for the computation of Court-
fees and the value for purposes of jurisdiction shall be the same."

This latter Act was designed, as expressed in its Preamble, to prescribed the mode of
valuing certain suits for the purposes of determining the jurisdiction of Courts with
respect thereto arid hence there can be no doubt that this was a provision which was
directly applicable for this purpose and could not be ignored. It will be noticed from Its
terms that in 1935 when the Legislature amended the provisions of the Court Fees Act it
did not also incorporate, amongst the suits sought to be excepted under section 8 of the
Suits Valuation Act, suits falling under the newly introduced paragraph (vi-a) of section 7
of the Court Fees Act. Hence for determining jurisdiction in respect of suits falling under
paragraph (vi-a) the value as determinable for the computation of Court-fees had
necessarily to be the value for the purposes of jurisdiction as well. There could be no
possible doubt with regard to this and it is difficult to appreciate how even after this,
Calcutta High Court could still continue to adhere to its former practice with regard to
suits of this nature. According to these provisions "the market-value of the share to
respect of which the suit is instituted", had of necessity to be the value for purposes of
jurisdiction as well in the case of suits for partition where the plaintiff was excluded from
possession.

No doubt, section 8 of the Suits Valuation Act did not in terms apply to suits falling under
Entry (v-a) of Article 17 of Schedule II to the Court Fees Act, for, in those suits no value
was required to be determined for computation of Court-fees, as the Legislature itself
determined that a fixed Court-fee was to be payable in respect of such suits. But it seems
to me that if the arguments advanced as to the nature and scope of a partition suits are
valid, then they must of necessity apply to all suits for partition whether the plaintiff is in
possession or is excluded frog possession. Surely, even in a suit for partition where,
plaintiff is excluded from possession, a defendant, if lie so desires has the right to also
ask for partition of his share in the event of the plaintiff being held to be entitled to
partition. The argument therefore, that by the amendment of 1935 the Legislature
accepted the view of the Calcutta High Court as to the nature and scope of a partition suit
where the plaintiff was excluded from possession, does not appear to me to be sound. I
am, on the other hand of the view that the Legislature by expressly providing in
paragraph (vi-a) of section 7 of the Court Fees Act that ad valorem Court-fee would be
paid on the market-value of the share in respect of which the suit is instituted and making
no corresponding amendment to section 8 of the Suits Valuation Act exempting such suits
from the ambit of the latter, clearly negatived the view of the Calcutta High Court so far
as suits of this nature were concerned. I, therefore, see no reason to change the view
which I held in the case of Patak Chandra Haladar, so far as suits for partition, where a
plaintiff is excluded from possession, are concerned.

'The question now arises as to whether there is any valid reason for making any
differentiation in respect of suits for partition where the plaintiff is in possession. It has
been argued that whatever may be the consequence as a result of the amendments to the
Court Fees Act in 1935 as regards suits of the other kind, the position with regard to suits
for partition where the plaintiff is in joint possession remains unchanged and the Calcutta
view must be upheld. I am unable to accede to this contention, for, on my part, I can see
no valid justification for making any such differentiation.

There can be no manner of doubt that in a suit for partition, where the plaintiff is
excluded from possession, the plaintiff actually has in effect to ask for two reliefs,
namely, (i) that he should first be put in joint possession and (ii) that thereafter his mode.
of enjoyment should be altered by giving him separate possession of his share. This is
really a composite suit and, if by' reason of the statutory provisions alluded to earlier, the
plaintiff in suit of this kind has to pay ad valorem Court-fees on the market-value of the
share claimed by him and that value also determines the forum of the trial or appeal, then
it is difficult to appreciate why in a case for partition, where the plaintiff is in joint
possession and really asks for one relief, namely, a change in the mode of his enjoyment
of the property by allotment in severalty the possession of his share, he must be give-i the
be refit of having his suit tried or his appeal heard by a higher Tribunal by valuing his suit

Page No. 18 of 19
according to the value of the entire property sought to be partitioned. This would, in my
opinion be creating an anomaly when in principle, there can be no difference in the nature
and scope of the suits of these two kinds. Surely this anomaly should be avoided, if
possible, particularly when there is nothing in reason or justice to support the continuance
of such an anomalous situation.

Indeed most of the other High Courts in the Indo-Pakistan Sub-continent have avoided
this anomalous situation by holding that in both cases the valuation for purposes of
jurisdiction in partition suits has to be determined upon the value of the share of the
plaintiff which is really the subject-matter of the suit.

I am further of the opinion that the same conclusion will be reached if the value of a suit
for 'partition is taken to be the value of the relief claimed, therein by the plaintiff. He
merely claims his share out of the estate and not the entire estate. Thus, according to' me,
whichever way one views the matter, the whole estate cannot form the subject-matter of
such a suit. The entire estate is merely the corpus out of which the plaintiff's claim or
relief arises, but the claim itself forms the subject-matter of the suit.

The learned counsel for the appellants also invoked in aid the rule of stare decisis in order
to prevent the disturbance of a long established practice of the Courts of this Province
with regard to partition suits. This rule, however, is only attracted in eases where as a
consequence of a course of decisions vested rights have been created and an interference
with that course will disturb those rights and result in hardship to those who may have
adjusted their rights in the light of those decisions. There is no such right involved in the
present case and as such this rule has no application here.

I may here add that I have also this opportunity to re-examine the decisions referred to by
me on this particular point in the Full Bench judgment and I am satisfied that each one of
those cases was a case in which the point under consideration was the valuation for
purposes of jurisdiction, and in each one of them the view taken was that the value of the
plaintiff's share determined the valuation for the purposes of jurisdiction.

For the reasons given above I see no reason to change the view that I took in the Full
Bench case of Khayertullah Mandal and others v. Kamalakanta Saha and others, I would,
therefore, dismiss this appeal, but make no order as to costs, as the respondents did not
appear to contest this appeal.

ORDER OF THE COURT

In accordance with the view of tile majority this appeal is dismissed, without any costs,
for the respondents have not appeared.

A. H. Appeal dismissed.

Page No. 19 of 19
P L D 1962 Supreme Court 28

Present : A. R. Cornelius, C. J., S. A. Rahman,

Fazle-Akbar, B. Z. Kaikaus and Hamoodur Rahman, JJ

PAKISTAN, THROUGH THE SECRETARY TO THE GOVERNMENT

OF PARISTTAN MINISTRY OF RAILWAYS & COMMUNICATIONS,

KARACHI-Appellant

Versus

MUHAMMAD A. HAYAT-Respondent

Civil Appeal No. 18 of 196,, decided on 27th November, 1961.

(On appeal against the .judgment and order of the High Court of West Pakistan, Karachi
Bench, Karachi, dated the 2°th May 1959, in Writ Petition No. 333 of 19581.

(a) Writ----Mandamus or other writ-Lies against Government Analogy from English law
that mandamus does not lie against Crown, inapt-Constitution of Pakistan (1956), Art.
170 ; [Dicey's Law of the Constitution p. 527 of 1950 Edn. ; Phillip's Constitutional Law
p. 447, 1957 Edn. ; Wade's Constitutional Law p. 317, 1957 Edn. ; Queen v. The
Secretary of State for War (1891) 2 Q B 326 ; Rex v. Minister of Health (1930) 2 K B
98 ;Secretary of State v. Oberion (1923) A C 603 and Eshugbayi Eleko v. Officer
Administering the Government of Nigeria and another A I R 1931 P C 248 ref.].

(b) Laws (Continuance in Force) Order (I of 1958)---Art. (2) (4)-Writ-Against

Government-Omission from Art. 2 (4) of words "including in appropriate cases any
Government" which were to be found in Art. 170, Constitution of Pakistan (1956), does
not imply that mandamus or for that matter any other writ could not be issued to
Government.

Tufail Ali A. Rahman Attorney-General for Pakistan

(S. A. Nusrat Advocate Supreme Court with him) instructed by Shafiq Ahmad Attorney
for Appellant

Respondent : Ex parte.

Date of hearing : 27th November 1961.

JUDGMENT

B. Z. KAIKAUS, J.---Muhammad A. Hayat, respondent in this appeal by special leave,

was in the subordinate service of the Engineering Branch of the Oudh and Tirhut
Railways at the time of the partition of India and was officiating as a Sub-Divisional
Officer in the pay-scale of Rs. 300-50-800. Having opted for Pakistan he was appointed
as an officiating Assistant Engineer in the same scale in the North-Western Railway. On
the 1st of May 1948, the Government of Pakistan decided that all members of the staff
who had come on transfer from any railway in India would retain the scale of pay
applicable to them in their substantive capacity and those who were officiating would be
allowed to draw the scale of pay admissible to them before their transfer. On the 15th of
April 1953, the Government revised this order and directed that employees mentioned
above should be placed in the scale of pay admissible to them in the North-Western
Railway. At this the respondent filed a writ petition against the Central Pakistan
Government challenging the scale of pay fixed in pursuance of the order of 15th April
1953, which petition succeeded to this extent that the scale of pay up to the 15th of April
1953, was allowed to remain as it had been fixed under the order of 1st May 1948. Leave
to appeal was granted in this case only for a consideration of the limited question whether
a mandamus could be issued against the Government at all.

Page No. 1 of 5
Before us two arguments have been put forward by the learned Attorney-General in
support of the proposition that a writ cannot be issued to the Government. The first is that
a writ In England be issued against the Crown and therefore it cannot be issued to the
Government of Pakistan whose position in this respect is similar. The second is that on a
proper interpretation of Article 2 of the Laws (Continuance in Force) Order, 1958, which
is now the source of the jurisdiction of the High Court and the Supreme Court to issue
writs, the jurisdiction to issue a mandamus against the Government has been taken away.

On the fact that In England a mandamus cannot issue to the Crown no argument can be
based that it cannot Issue to the Government of this country. The constitutional status of
the Crown is wholly different from that of the Government of Pakistan. The Crown of
England occupies a unique position. As stated in Dicey's Law of the Constitution (p. 527
of 1950 Edition), it is a fundamental rule of English Law that no action A can be brought
against the Crown. No process of any kind can be issued by the Courts against the
Crown. Another recognised principle is that: "The Crown can do no wrong". The Crown
is not responsible for its acts to any body or authority and no legal right can be said to
exist in any person against the Crown.

Nothing of what is stated above applies to the Government of this country. The
Government is a creature of law with limited and defined powers. Its acts in relation to
the citizens of the State are subject to scrutiny and control by the Courts. It Is burdened
with legal duties in favour of the citizen which can be enforced in a Court of law. If it acts
in excess of its powers the Courts can grant appropriate relief, and if it fails to perform its
duties It can be obliged to perform them. Even a Civil Court of the lowest jurisdiction can
issue an Injunction to the Government to perform the duties imposed on it by law.

The criterion for deciding whether a public authority is subject to a mandamus would be
whether it had a legal duty to perform and a legal right existed in any person to have that
duty enforced. Although the Crown in England is not subject to writ jurisdiction, all
public authorities even though they be servants of the Crown or functionaries of the
executive government are subject to such jurisdiction, and mandamus can be issued
against Ministers or other Crown servants to enforce statutory duties as will appear from
the following passage in Phillip's Constitutional Law (p. 447, 1957 Edition):---

"Mandamus is not available against the Crown itself, nor against a servant of the Crown
to enforce a duty owed exclusively to the Crown (R. v. Secretary of State for War; The
Queen v. Lords of the Treasury). The latter inconvenient constitutional principle follows
the general rule that a third party cannot require an agent to perform a duty which he
owes solely to his principal. But mandamus may be issued against Ministers or other
Crown servants to enforce a statutory duty owed to the applicant as well as to the Crown
(The Queen v. Special Commissioners for Income-tax).

Similar is the statement in Wade's Constitutional Law (p. 317, 1957 Edition) as will
appear from the following passage :---

"The order mandamus does not lie against the Crown. If a department of Government is
acting as agent of the Crown and is responsible only to the Crown having no duty to the
subject in the matter, it is not amenable to the orders of the Court in exercise of its
prerogative jurisdiction in granting 'or refusing mandamus (The Queen v. Lords of the
Treasury (1872) L R 7 Q. B. 387). But mandamus will lie to enforce the performance of a
public duty which has been imposed by Statute on a department of the Government or its
servants provided that the applicant will show that the duty is one, which is owed to him
and not merely to the Crown. In the former case, his remedy lies in having his grievance
ventilated in the House of Commons but he has no remedy in the Courts. In The Queen v.
Special Commissioners of Income-tax (1888) 21 Q. B. D. 313, at 317, the distinction
turns upon the rule that no third party (the complainant) can compel an agent (the
department) to perform a duty which is owed not to him, but solely to the principal (the
Crown)."

In Queen v. The Secretary of State for War ((1891) 2 Q B 326), a mandamus had been
applied for against the Secretary of State for payment of the salary of the applicant in

Page No. 2 of 5
accordance with a royal warrant. The application was dismissed not on the ground that
the Secretary of State for War was not subject to writ jurisdiction in fact, he did not even
raise any such objection--but on the ground that the duty which the Secretary of State
owed under the warrant was not like a duty imposed by statute, common law or charter
which may create a legal right in the applicant, but was a duty owed solely to the Crown.
A perusal of the relevant portion of the judgment which is reproduced below would show
that had a legal right based on statute, common law or charter existed mandamus would
have been granted:

"In the present case the Secretary of State is a servant of the Crown, and the duty we are
asked to compel. him to perform is not imposed by statute.

* * * * * * * * * * * *

It was also contended that a duty imposed by royal warrant on the Secretary of State for
War in relation to officers or soldiers is really a common law duty, to the performance of
which the officers and soldiers are legally entitled ; and it is indisputable that duties
imposed by common law are enforceable by mandamus. But after full consideration we
have come to the conclusion that the royal warrant does not impose any such duty on the
Secretary of State for War as is or may be imposed by statute, by charter, or by common
law. It is issued, certainly, within the limits of the prerogative, and is, therefore, a lawful
order. But it does not follow that it imposes any duty on him which an officer or soldier
can enforce. His position in this respect appears to be exactly the same as that of the
official formerly known as `Secretary at War' and the warrant imposes, upon him no
obligation beyond that which he owes to the Sovereign. A duty no doubt arises, but it is a
duty between him and the Crown only. The applicant has no legal right to have it
performed, and cannot, therefore, enforce its performance by mandamus. This appears to
us to be clear upon principle, but that such is the position of the Secretary for War appears
to be established authoritatively by the case of Gidley v. Lord Palmerston 3 B & B 275. It
was there held, that an action would not lie against the Secretary at War by an individual
for sums which as Secretary at War he was authorized to pay him, although he might
have received the money applicable to that purpose. He had received the money. It was
held, merely as the agent of the Crown, and was responsible to the Crown only for the
due execution of the trust or duty committed to him. It is true that this was an action
based upon an alleged contract between the plaintiff and defendant; but the reasoning of
the judgment is equally applicable to an application for a mandamus, which must be
founded upon some legal right in the applicant."

Writs other than mandamus too can be issued against Ministers and other servants of the
Crown. In Rex v. Minister of Health ((1930) 2 KB 98), a writ of certiorari was granted
against the Minister of Health in respect of the order which he passed relating to a
housing scheme. In Secretary of State v. Oberion (1923 AC 603), a writ of habeas corpus
was issued against the Secretary of State on the ground that power of detention had been
exceeded. Eshugbayi Eleko v. Officer Administering the Government of Nigeria and
another (AIR 1931 PC 248) was a case of application for a writ of habeas corpus. In that
case their Lordships of the Privy Council stated the general proposition relating to
judicial control of executive acts. Following is the relevant passage from that
judgment:---

"The Governor acting under the Deportation Ordinance acts solely under executive
powers, and in no sense as a Court. As the executive he can only act in pursuance of the
powers given to him by law. In accordance with British jurisprudence no member of the
executive can interfere with the liberty or property of a British subject except on the
condition that he can support the legality of his action before a Court of justice. And it is
the tradition of British justice that Judges should not shrink from deciding such issues in
the face of the executive. The analogy of the powers of the English Home Secretary to
deport aliens was invoked in this case. The analogy seems very close. Their Lordships
entertain no doubt that under the legislation in question, if the Home Secretary deported a
British subject in the belief that he was an alien, the subject would have the right to
question the validity of any detention under such order by proceeding in habeas corpus,
and that it would be the duty of the Courts to investigate the issue of alien or not.

Page No. 3 of 5
A suggestion was made by one of the learned Judges that the order in this case was an act
of State. This phrase is capable of being misunderstood. As applied to an act of the
sovereign power directed against another sovereign power or the subjects of another
sovereign power not owing temporary allegiance, in pursuance of sovereign rights of
waging, war or maintaining peace on the high seas or abroad, it may give rise to no legal
remedy. But as applied to acts of the executive directed to subjects within the territorial
jurisdiction it has no special meaning, and can give no immunity from the jurisdiction of
the Court to inquire into the legality of the act.

To the Crown not only a mandamus but no other writ nor an injunction, or process could
issue. The learned Attorney General is not prepared to urge that no writ lies against the
Government of Pakistan at all, his contention being only that a mandamus does not lie.
He is not prepared to contend that a writ of certiorari where the Government exercise a
quasi-judicial function or a habeas corpus would not lie as against the Government.

It will be perhaps proper to state what exactly the objection to the issue of a writ of
mandamus implies. A writ of mandamus is only a speedy method of enforcing a legal
right which can be enforced by an ordinary action in a Civil Court. An objection by the
Government that it is not subjected to a writ of mandamus does not imply a claim to a
status which prevents its action from being made the subject of judicial control but only
this that it is not subject to a speedy remedy and that interference with its acts must be by
the ordinary and comparatively less expeditious process of a Civil Court.

For an appreciation of the second argument it will be proper to reproduce the provisions
as to writs in the Constitution of Pakistan and Article 2 of the Laws (Continuance in
Force) Order, 1958:--

Article 170 of the Constitution-

"Notwithstanding anything in Article 22, each High Court shall have power, throughout
the territories in relation to which it exercises jurisdiction, to issue to any person or
authority, including in appropriate cases any Government, directions, orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto,
certiorari, for the enforcement of any of the rights conferred by Part II and for any other
purpose."

Article 2 of the Laws (Continuance in Force) Order, 1958---

"(1) Notwithstanding the abrogation of the Constitution of the 23rd March 1956,
(hereinafter referred to as the late Constitution) by the Proclamation and subject to any
Order of the President or Regulation made by the Chief Administrator of Martial Law, the
Republic, to be known henceforward as Pakistan, shall be governed as nearly as may be
in accordance with the late Constitution.

(2) Subject as aforesaid all Courts in existence immediately before the Proclamation shall
continue in being and subject further to the provisions of this Order, in their powers and
jurisdictions.

(3) The law declared by the Supreme Court shall be binding on all Courts in Pakistan.

(4) The Supreme Court and the High Courts shall have; power to issue the writs of habeas
corpus, mandamus, prohibition, quo warranto and certiorari.

(5) No writ shall be issued against the Chief Administrator of Martial Law, or the Deputy
Chief Administrator of Martial Law, or any person exercising powers or jurisdiction
under the authority of either.

(6) Where a writ has been sought against an authority which has been succeeded by an
authority mentioned in the preceding clause, and the writ sought is a writ provided for in
clause (4) of this Article, the Court notwithstanding that no writ may be issued against an
authority so mentioned may send to that authority its opinion on a question of law raised.

Page No. 4 of 5
(7) All orders and judgments made or given by the Supreme Court between the
Proclamation and the promulgation of this Order are hereby declared valid and binding
on all Courts and authorities in Pakistan, but saving those orders and judgments no writ
or order for a writ issued or made after the Proclamation shall have effect unless it is
provided for by this Order, and all applications and proceedings in respect of any writ
which is not so provided for shall abate forthwith."

It will be observed that whereas Article 170 of the Constitution granted power to Courts
not only to issue writs of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, but also to issue directions and orders. At the same time, it made explicit
reference to the Government. Clause (4) of Article 21 enables the Supreme Court and the
High Courts only to issue the named writs. At the same time, the words relating to the
Government do not appear in clause (4) and in clause (5) there is al, provision that the
Chief Administrator of Martial Law or the; Deputy Chief Administrator of Martial Law
or any person; exercising powers under the authority of either would not be subject to
writ jurisdiction.

The learned Attorney-General relies on the omission in Article 2 of the words "including
in appropriate cases any Government" which existed in Article 170 and contends that this
omission points to the exclusion of the Government from subjection to writs of
mandamus. But this contention can be met by the argument that in clause (5) of Article 2
the persons against whom writs cannot be issued are specifically mentioned. If the
intention was that the Government should not be subjected to writ jurisdiction it should
have been mentioned in clause (5). The correct position appears to us to be that apart
from the exception contained in clause (5) the framer of Article 2 intended to grant the
Courts the precise jurisdiction which is involved in the various named writs without any
qualification. If the power to issue the named writs did imply the power to issue writs to
the Government then they may be issued to the Government, and if that power did not
involve a jurisdiction to issue writs to the Government the framer did not want to add to
that power and enable the Courts to issue such writs. The intention was to leave the writ
jurisdiction Intact, and not to add to or take away from it. That is why, while the words
"including in appropriate cases any Government" were omitted, no reference to the
Government appeared in clause (5).

There is a further argument however which makes the position altogether clear. As
already stated, the learned Attorney General does not contend and, in fact, cannot
contend, that no writ can be issued to the Government at all. He does not have any
objection to the issue of writs of certiorari, prohibition and habeas corpus, the only attack
being with respect to the power to issue mandamus. But if the intention in omitting the
relevant words contained in Article 170 was that the Government was not to be subjected
to writ jurisdiction, the result would be that no writs at all could be issued. It is not
explained how the power to issue writs other than mandamus could exist against the
Government, if the interpretation put forward by the Attorney-General Is accepted.

As a result the appeal is dismissed. There is no order as to costs for the respondent has
not appeared.

A.H. Appeal dismissed.

Page No. 5 of 5
P L D 1962 (VV. P.) Quetta 28

Before Wahiduddin Ahmed and A. S. Faruqui, JJ

Mst. BIBI LAL BIBI-Appellant

versus

MIR BALUCH KHAN AND ANOTHER-Respondents

Second Civil Appeal No. 1 of 1960, decided on 2nd November 1961.

(a) Baluchistan States Union Interim Constitution, 1952, S. 86-Bar against Courts'
jurisdiction not operative where Ruler has acquiesced in cognizance of proceedings
against him by Court (Kazi's)-Repeal of Interim Constitution by Establishment of West
Pakistan Act, 1955-Bar no longer in force-Interim Constitution not valid legislation-
[Madad Khan v. Province of West Pakistan P L D 1960 Kar. 160 ref.]

(b) Civil Procedure Code (V of 1908), S. 87-A read with S. 86-Kharan State
(Baluchistan) not a "merged" State-"Nawab" of Kharan not "Ruler" of an Acceding State-
S. 86 inapplicable to Kharan State or its "Nawab".

(c) (Kalat) Dastur-ul-Amal Diwani - Still in force, being special Law-Application of Civil
Procedure Code (V of 1908) Doubtful.

(d) Civil Procedure Code (V of 1908), S. 86-Applies to "suits" against Rulers of States
and not "appeals"-"Suit" does not include "appeal" in context of S. 86-"Suit"-Definition.

The word `suit' ordinarily means and apart from some context must be taken to mean, a
civil proceeding instituted by the presentation of plaint. 1n the context of section 86, C. P.
C., this is the only meaning which can be given to the word "suit" which should not be
taken to include "appeal."

Hansraj Gupta and others v. Dehra Dun-Mussorie Electric Tramway Co., Ltd. A I R 1933
P C 63 ref.

(e) Acceding States (Property) Order (12 of 1961), Art. 3Does not apply to property
which is property neither of State nor of its Ruler.

(f) (Kalat) Dastur-ul-Amal Diwani-Not making provision for impleading heirs of Ruler in
any proceeding on Ruler's death--Procedure for impleading heirs nevertheless applies
being an inherent principle in administration of justice-Civil Procedure Code (V of 1908),
O. XXII.

(g) Party-May be impleaded at any time provided claim is not time-barred-Civil

Procedure Code (V oj'1908), O. I, r. 10---Principle applied to case governed by (Kalat)
Dastur-ul-Amal Diwani.

(h) Partition suit-Parties---Some heirs not made parties but estate of deceased sufficiently
represen!ed before Court-Estate not shown to have been prejudiced in any way-Non
joinder immaterial.

(i) Partition suit-Court-fee on plaint -Plaintiff in "joint possession"-Court-fee of Rs. 10

enough-Court Fees Act (VII of 1870), S. 7 (v).

(j) (Kalat) Dastur-ul-Amal Diwani, S. 6-Ex pate proceedings can be taken against
absenting defendant in spite of provision of Dur-ul-Mukhtar (Translation-Navalkishore)
(1925) Vol. IV, pp. 240-41-Conditions for making ex parte decree -[F. Kanematsu & Co.
Ltd. v. S. Nazir Hussain Puri P L D 1957 Kar. 332 ref.]

Page No. 1 of 15
(k) Public document -"Settlement deed" re property of Ruler of Kharan (Baluchistan
States)-Verified by Agent to GovernorGeneral and deposited in Tehsildar's Court-Treated
as public document-Certified copy, held, admissible-Evidence Act (I of 1872), S. 74.

(1) Muhammadan Law-Witness-Administration of oath not necessary (according to

Hanafi School).

(m) Partition-Scheme for partition to be made by local Commissioner and not by

arbitrators.

S. M. Arif, Mir Muhammad Fazil and Mohd. Nawaz Ahmad for Appellants.

Qazi Mohd Issa, Muhammad Ahmad Mirza and Syed Riazul Hassan for Respondents.

Dates of hearing: 11 th and 12th October 1961.

JUDGMENT

WAHIDUDDIN AHMED, J.---This judgment will dispose of Second Appeals Nos. 1, 2,

3, 4, 5, 8, 9, 10, 11 and 14 of 1960 and Revision No. 17 of 1959, in which common
questions of law and facts are involved.

The ancestor of the parties in all the appeals is one Sardar Nawab Azad Khan, who died
in the year 1906. He was survived by his three sons Sardar Nawab Nauroze Khan, Sardar
Azam Khan and Sardar Amir Khan. The dispute between the parties in the above-
mentioned appeals and revision is in respect of the landed property left by Sardar
Nauroze Khan and Sardar Yakoob Khan. Sardar Azad Khan by a document dated the 31st
of August 1883 settled most of his landed property on his three sons mentioned above.
Sardar Nauroze Khan died in the year 1909 and was succeeded by his son Sardar Yakoob
Khan as heir apparent. Sardar Yakoob Khan was, however, murdered by his uncle Sardar
Amir Khan in the year 1911. The dispute arising out of the murder of Sardar Yakoob
Khan was referred to the Shahi Jirga in the year 1912, who by an award delivered in the
same year, gave all the property of Sardar Amir Khan inherited or obtained from his
father Sardar Azad Khan, to the heirs of Sardar Yakoob Khan. On the death of Sardar
Yakoob Khan, Nawab Khan Habibullah Khan succeeded him as heir apparent in the year
1911. The relationship of the parties is shown in the pedigree table reproduced below:---

All the above-mentioned Sardars and Nawabs belong to an area known as Kharan in
Baluchistan. This State came into existence in the year 1940. It merged with the
Baluchistan States Union in the year 1952 and became part and parcel of the Baluchistan
States Union. The Baluchistan States Union merged in the Province of West Pakistan in
the year 1955 under the West Pakistan Establishment Act, 1955.

The vast landed property left by Sardar Nauroze Khan and Sardar Yakoob Khan remained
in the possession of Nawab Habibullah Khan, the Ruler of Kharan State. Bibi Lai Bibl,
daughter of Sardar Nauroze Khan, the appellant in Appeal No. 1 of 1960, on the 8th of
October 1953 filed a suit in the Court of the Deputy Commissioner, Kharan, against her
nephew Nawab Habibullah Khan for partition of the movable and immovable property
left by Sardar Nauroze Khan. This suit was dismissed on the 9th of August 1958 by the
Kazi of Kharan on the ground that the claim made in the suit was vague. Bibi Lai Bibi
filed an appeal against the judgment of the Kazi before the Majlis-i-Shura of Kharan.
During the pendency of this appeal Sardar Habibullah Khan died on the 9th of October
1958. On his death his heirs were impleaded as parties to the appeal. On the 17th of
February 1959 the Majlis-e-Shura remanded the case to the Kazi for decision on merits.
The Kazi, after issuing notices to the parties, interested in the property left by Sardar
Nauroze Khan, on the 18th of April 1959 passed a decree for the partition of the
immovable property but dismissed the suit for the partition of the movable property.

During the pendency of the above-mentioned suit, Mir Ibrahim Khan and Sarfaraz Khan
sons of Mehrab Khan and grandsons of Sardar Nauroze Khan on the 2nd of April 1953
filed a suit for partition against Sardar Habibullah Khan in respect of the movable and
immovable property left by Sardar Nauroze Khan. This suit also met the same fate as that

Page No. 2 of 15
of Bibi Lai Bibi. The Kazi in the first instance dismissed the suit on the ground that the
claim was vague. The matter was taken before the Majlis-e-Shura and it was remanded
again for decision on merits. The Kazi of Kharan in this case also passed a decree in
favour of Mir Ibrahim Khan and his brother on the 18th of April 1959 for partition of the
immovable property of Sardar Nauroze Khan.

Two other suits were filed : one by Jam Mir Khan and Jam Changez Khan, sons of Shah
Bibi and grandsons of Sardar Nauroze Khan on the 17th of November 1958 against
Surdar Habibullah Khan for partition of the property left by Sardar Nauroze Khan ; and
the other was filed by Aisha Bibi daughter of Sardar Nauroze Khan against Sardar
Habibullah Klan in respect of Nauroze Khan's property on the 4th December 1958. On
the 18th of April 1959 and 8th of April 1959 the Kazi passed decrees in the above-
mentioned suits for partition of immovable property against the heirs of Sardar
Habibullah Khan.

The decrees passed by the Kazi, Kharan, against the heirs of Sardar Habibullah Khan
were challenged by Mir Muhammad Tahir Khan on behalf of himself and his brothers
and sisters namely, Mir Ali Ahmed Khan, Mir Ghous Bux Khan, Mir Balueh Khan, Bibi
Mahal and Bibi, Rahm Bibi and mother Bibi Gulatoon in four appeals before the Majlis-
e-Shura. Neither Nawab Mir Mustafa Khan, the present Nawab of Kharan, filed any
appeal against the judgment of the Kazi nor did the other group represented by Mir Sher
Ali Khan and his brother.

Mir Tahir Khan and his group contended before the Majlis-eShura that the property in
dispute had nothing to do with Sardar Nauroze Khan and that it solely belonged to Sardar
Habibullah Khan and the finding of the learned Kazi in the abovementioned four suits
was not based on any evidence worth the name. They also contended that the property in
dispute was in the possession of the "Mianji Kh3na" that is to say under the Management
of the Receiver appointed by the State, and as long as the dispute between the heirs of
Sardar Habibullah Khan was not finally decided, the Kazi had no jurisdiction to award
any partition decree in favour of the plaintiffs in the above-mentioned suits. The Majlis-i-
Shura by judgment dated the 7th of December 1959 upheld the contention of these
appellants that the judgment of the Kazi is not based on sufficient evidence and remanded
the case to him for deciding the dispute between the parties after recording their evidence
in full. The finding of the Majlis-e-Shura in remanding the case to the Kazi is challenged
by the above-mentioned plaintiffs in Appeals Nos. 1, 5, 8 and 11 of 1960. It will be
noticed that the property in dispute in these appeals is alleged to have been left by Sardar
Nauroze Khan. The appellants in these appeals contend that there was sufficient
documentary and oral evidence before the Kazi and that the decree of the Kazi dated the t
8th of April 1959 is based on reliable evidence and could not be set aside.

The second set of appeals namely, Appeals Nos. 2, 3, 4, 9, 10 and 14 of 1960 pertain to
the property inherited by Sardar Yakoob Khan from Sardar Nauroze Khan and the
property of Sardar Muhammad Amir Khan given by the Shahi Jirga in the year 1912
under an award as blood compensation or blood money to the heirs of Sardar Yakoob
Khan. In respect of the property left by Sardar Yakoob Khan or given to the heirs of
Sardar Yakoob Khan as blood money, six suits were filed by his heirs against Sardar
Habibullah Khan. On the 4th of November 1952 Bibi Mah Bibi daughter of Sardar
Yakoob Khan filed a suit for partition in respect of the property of Sardar Yakoob Khan
against Sardar Habibullah Khan. This suit is the subject-matter of Second Appeal No.
4/1960. On the 2nd of April 1953 Mir Muhammad Rafiq son of Mir Durra Khan and
grandson of Yakoob Khan filed another suit against Sardar Habibullah Khan in respect of
Sardar Yakoob Khan's property. This suit is the subject-matter of Second Appeal No.
14/1960. Similarly, on the 10th of September 1953 Mir Shahbaz Khan son of Mir Yakoob
Khan filed a suit for the partition of the property left or given to the heirs of Sardar
Yakoob Khan against his brother Sardar Habibullah Khan. This suit is the subject-matter
of Second Appeal No. 10/1960. On the 3rd of July 1958 Mst. Rabia BIN daughter of
Sardar Yakoob Khan also filed a suit in respect of Sardar Yakoob Khan's property against
Sardar Habibullah Khan. This is the subject-matter of Second Appeal No. 2/1960.
Similarly, Mir Rahim Khan and Hamidullah Khan sons of Bibi Lal Bibi, daughter of
Sardar Yakoob Khan, also filed a suit in respect of Sardar Yakoob Khan's property against
Sardar Habibullah Khan. This is the subject-matter of Second Appeal No 9/1960. On the

Page No. 3 of 15
5th of August 1958, Bibi Naz Jan daughter of Sardar Yakoob Khan also filed a suit
against Sardar Habibullah Khan in respect of the property of Sardar Yakoob Khan. This is
the subject-matter of Second Appeal No. 3/1960. These suits were forwarded by the
Deputy Commissioner, Kharan, to the Kazi of Kharan for decision according to the
Sharia Anwar. In these suits, however, the position is a little different. Out of the above-
mentioned suits those filed in the years 1952 and 1953 the Kazi dismissed them in the
first instance on the ground that the claim was vague.

The plaintiff thereupon filed appeals against this judgment before the Majlis-i-Shura and
as in other cases these suits were remanded by the Majlis-i-Shura for disposal on merits.
These suits on remand were considered with the other suits and were finally decreed in
favour of the plaintiffs on the 28th of April 1959.

Mir Muhammad Tahir Khan on behalf of himself and his brothers, sisters and mother
challenged the validity of the decree passed in the above-mentioned suits before the
Majlis-eShura on the ground that the decrees passed by the learned Kazi were not based
on sufficient evidence and are liable to be set aside. They further contended that the
property in dispute is under the management of the " Mianji Khana " namely, the
Receiver, and as the dispute between the heirs of Sardar Habibullah Khan had been
settled, the suits filed by the plaintiffs are liable to be dismissed. The plaintiffs also filed
appeals before the Majlis-e-Shura in respect of the dismissal of their claim of movable
property. The Majlis-e-Shura on consideration of the appeals and cross-appeals set aside
the order of the learned Kazi, dated the 28th of April 1959 in all the above-mentioned
matters on the ground that the Kazi's judgment was vague on the question of gifts. The
appellants in the cross-appeals were contending that the property in dispute did not
belong to Sardar Yakoob Khan but was the personal property of Sardar Habibullah Khan.
According to the learned Majlis-i-Shura it was, therefore, incumbent on the Kazi to
decide the disputed points after recording evidence. The Majlis-e-Shura finally held that
the Kazi's decree was based on insufficient evidence. Accordingly the case was remanded
for evidence and decision to the learned Kazi by judgment, dated the 7th of December
1959.

All the plaintiffs in the above-mentioned suits have challenged the validity of the order of
the Majlis-i-Shura in these appeals. They contend that the Majlis-i-Shura has erred in
stating that there was no evidence on the record to support the Kazi's judgment It is
alleged that there was weighty documentary evidence namely the settlement deed
executed by the late Nawab Sir Azad Klan and attested by Sir Robert Sandeman of 1883
and other documentary evidence. They further allege that the respondents did not contest
the plaintiff's' claim and wanted the suit to be dismissed merely on the ground that the
dispute between the heirs of Sardar Habibullah Khan was not decided and the property in
dispute was under the management of the "Mlanji Khana" and therefore the Majlis-e-
Shura could not allow the appeals on these grounds.

At this stage, before we consider the appeals on merits, it would be proper to dispose of
some of the objections raised on behalf of Nawab Mir Mustafa Khan, the present Nawab
of Kharan, under an application dated the 12th of October 1961. It Is alleged on behalf of
Nawab Mir Mustafa Khan that the original suits in Appeals Nos. 1, 2, 3,. 4, 8, 9, 10 and
14 were instituted in the life-time of his late father Nawab Habibullah Khan. Suits in
Appeals Nos. 5 and 11 were instituted after the life-time of his late father. His late father
Nawab Habibullah Khan of Kharan did not attend the Kazi's Court because under section
86 of the Interim Constitution of Baluchistan States Union of 1952 approved by the
Governor-General of Pakistan, no civil suit could be entertained against any Ruler in
Kalat State. His father died on the 9th of October 1958. His name could not be substituted
in place of his late father more than four months after the death of his father because
under the Civil Procedure Code of Kalat there is no provision for impleading legal
representatives of a deceased party to the suit. He further contends that as he was
recognised as the Nawab of Kharan in succession to his late father Nawab Habibullah
Khan Nausherwan by the President of Pakistan on the 25th of May 1.959 in accordance
with the merger agreement of January 1955, and under the provisions of the Rulers
(Recognition of Successors) Order No. 15 of 1960, and since the Pakistan Civil
Procedure Code of 1908 has been extended to Kharan, the appellants were not entitled to
file any appeal against him in any Court except with the consent of the Central

Page No. 4 of 15
Government as laid down in section 86 of the C. P. C. and Ordinance No. XXII of 1960
whereby the benefits of the aforesaid provisions of law have been extended to the Rulers
of the acceding and merged States. It is further contended on behalf of this respondent
that the Government of Pakistan by its Order No. D-67-Sec-V/60 of 9-2-1960 has
recognised the property in dispute as the personal property of his late father under the
Acceding State (Property) Order No. 12 of 1961 with effect from the 15th of August
1947. Therefore under the provisions of the last mentioned Order the Central Government
alone is empowered to decide disputes in respect of the properties in dispute claimed by
the present Ruler as belonging to an ex-Ruler of Kharan State. It is further contended that
the jurisdiction of this Court has been ousted on the following grounds :-

(1) That the privileges enjoyed by the respondent before the Merger Agreement 1955
were guaranteed to him in the Agreement and section 86 of the Interim Constitution of
Baluchistan States Union, 1952 is one of it. (Sic).

(2) That the provisions of section 86 C. P, C., and Ordinance No. XXII of 1960 have not
been complied with by the appellants.

(3) That the AccedinState (Property) Order No. 12 of 1961 bars the jurisdiction-of all the
Courts.

(4) That the substitution of the respondent more than four months after his father's death
was illegal as well as against the provisions of "Dastur-ul-Amal Diwani, Kalat."

(5) That the inclusion of the respondent was beyond time and as such the appeal was
barred by limitation.

(6) That in the original suits all the heirs of the respondents' father were not impleaded
and the suit was bad for non-joinder of necessary parties.

We will take up these objections separately.

As regards the first objection that no suit could be filed against the Ruler of a State under
section 86 of the Interim Constitution of the Baluchistan States Union, 1952, it would be
noticed that most of the suits were filed against Sardar Habibullah Khan, the Nawab of
Kharan. He succeeded his father Sardar Yakoob Khan in the year 1911. In 1940 Kharan
State came into existence and in 1952 this State joined the Baluchistan States Union. The
question of the applicability of this Constitution will be presently dealt with. Section 86
of the Interim Constitution of the Baluchistan States Union, 1952 is in the following
terms :-

"No proceedings whatsoever shall lie in, and no process whatsoever shall issue from, any
Court in the Union against the Council of Ruler or Its members or against the consorts of
(sic) Heir-apparents of its members whether in a personal capacity or otherwise, and
except with the sanction of the Governor-General no proceedings whatsoever shall lie in,
and no process whatsoever shall issue from any Court in the Union against the Wazir-I-
Azam whether in a personal capacity or in respect of anything done or omitted to by done
during the term of office in performance of purported performance of the duties thereof:

Provided that nothing in this section shall be construed as restricting the right of any
person to bring against the Union such proceedings as are permissible under any law for
the time being in force."

There is no doubt that under the provisions of this section no proceedings whatsoever
could lie and no process whatsoever could issue from any Court in the Union against the
Couacil of Rulers or its members. But in spite of this no objection was raised on behalf of
Sardar Habibullah Khan about the jurisdiction of the Court of the Kazi to bear the suit
against him in respect of the property in dispute. It will be noticed that A only four suits
were filed in the year 1952-53. In all the suits the late Sardar Habibullah Khan appeared
before the Kaza and asked for the adjournment of the case on the ground that the case of
his Jagir is before the Baluchistan States Union. In the suit of Mst. Mah Bibi (subject-
matter of Second Appeal No. 4 of 1960) he admitted the claim of his sister but asked for

Page No. 5 of 15
the adjournment of the case on the ground stated above. It will thus be noticed that in fact
he acquiesced to the jurisdiction of the Kazi's Court. This attitude, in our opinion, was
due to the fact that till the integration of West Pakistan the Baluchistan States Union
(Interim Constitution) Act, 1952 had not been finalised. Ibis is apparent from the reply of
the Assistant Secretary of the Ministry of States and Frontier Regions Division
reproduced at page 109 in the case of Madad Khan v. Province of West Pakistan (P L D
1960 Kar. 160). It is therefore quite obvious that section 86 of the said Interim
Constitution could not be considered to be a bar to the suits filed against Sardar
Habibullah Khan.

It further appears to us that this objection has no force because these suits were dismissed
against Sardar Habibullah Khan in 1958, at a time when the Interim Constitution was no
longer in force having been repealed by the West Pakistan Establishment Act, 1955. As
already stated these suits were dismissed by the Kazi on the ground that the claim was
vague. Of course appeal against the decision of the Kazi was tiled against Sardar
Habibullah Khan. But he died during the pendency of the appeal. His heirs were brought
on the record b and ultimately the Majlis-i-Shura remanded these suits on 17-2-1959. In
these circumstances this objection has no relevancy to the decree which was ultimately
passed in favour of the plaintiff in April 1959. Admittedly the rest of the suits were filed
in the year 1958, and section 86 of the Interim Constitution of 1952 has no relevancy and
effect on these suits. This objection therefore has no force.

In 1955 the Baluchistan States Union was merged into the Province of West Pakistan.
Kazi Muhammad Issa, the learned counsel for Nawab Mir Mustafa Khan, has urged that
under the Merger Agreement of 1955 the privileges enjoyed by the Rulers of the various
States comprising the Baluchistan States Union were guaranteed and under it no civil suit
could be filed against the Rulers of the four States which comprised the Baluchistan
States Union. The learned counsel has not placed before us the Merger Agreement. On
the other hand, even if the Baluchistan States Union Interim Constitution, 1952 is taken
as a valid piece of constitutional legislation, it was repealed under section 3 of the West
Pakistan (Adaptation of Laws) Order, 1955 issued by the Governor-General of Pakistan,
and the provision in question did not at all remain in operation. As no vested right was
acquired under the Baluchistan States Union Interim Constitution of 1952 and section 86
was only of a procedural nature, this section cannot be held applicable after 1955. In
these circumstances the objection that the judgment and decree of the Kazi passed on the
18th of April 1959 and 28th of April are without jurisdiction has no force. It appears to us
that the Baluchistan States Union (Interim Constitution) was not a valid piece of
legislation and even if it was, after the repeal of the Baluchistan States Union Interim
Constitution, 1952, in 1955, suits could be continued and filed against a Ruler of the State
comprising the Baluchistan States Union and the Kazi was fully competent to pass the
decrees In question against the heirs of Sardar Habibullah Khan In respect of the property
in, dispute.

The next objection raised on behalf of Nawab Mir Mustafa Khan is that the appeals are
liable to be dismissed against him as the permission to file the appeals against him had
not been obtained under section 86 of the Pakistan Civil Procedure Code read with
Ordinance Nn. XXII of 19.0. Nawab Mir Mustafa Khan was recognized as the Nawab of
Kharan under a letter dated the 25th of May 1959 issued under the authority of the
President of Pakistan. The material portion of the letter is reproduced below :-

"I am desired to say that the President of Pakistan has been pleased to recognise you as
the Nawab of Kharan in succession to your late father, Nawab Habibullah Khan
Nausherwani, in accordance with the Merger Agreement of January 1955, with the same
privy purse, personal rights, privileges and dignities as guaranteed therein."

In order to appreciate the argument of the learned counsel of Nawab Ghulam Mustafa
Khan, it may be pointed out that the Civil Procedure Code of 1908 along with other
enactments under section 3 of Ordinance No. XXI of 1960 was made applicable to the
whole of Pakistan. By section 2 of this Ordinance the Kalat Civil Procedure Code was not
repealed and this special legislation still exists on the Statute Book. This Ordinance was
promulgated on 9-6-1960 and was given retrospective effect from 14-10-1955. On 16-6-
1960 another Ordinance called Ordinance No. XXII of 1960 came into force by which

Page No. 6 of 15
certain provisions of the Civil Procedure Code were amended. Amongst these provisions
we find the provisions of sections 85 to 87 of the C. P. C. These provisions on their terms
applied to the Rulers of Foreign States. But under this Ordinance a new section 87-A was
introduced. This is for the benefit of the Rulers of the Acceding States or of Merged
States. Under the new section the provisions of sections 85 and 86 have also been applied
to the Rulers of the above-mentioned States. The new section 87-A is in the following
terms :-

"87-A. Application of sections 85 and 86 to Rulers of Acceding States, etc.-(I) in this

section-

(a) "Merged State" means a State which being immediately before the fourteenth day of
October 1955, an Acceding State, was on that day incorporated into the Province of West
Pakistan ; and

(b) "Ruler of an Acceding State or of a Merged State" means the person who for the time
being is recognised by the President as the Ruler of an Acceding State, or who,
immediately before the fourteenth day of October 1955, was the duly recognised Ruler of
an Acceding State.

(2) The provisions of sections 85 and 86 shall apply in relation to the Ruler of an
Acceding State or of a Merged State as they apply in relation to the Ruler of a foreign
State,"

The provisions of this section have got retrospective effect from the 14th day of October
1955. The definition of "Merged State" says that it means a State which being
immediately before the 14th day of October 1955, an Acceding State, was on that day
incorporated in the Province of West Pakistan. Further, the definition of "Ruler of an
Acceding State or of a Merged State" means the person who for the time being is
recognised by the President as the Ruler of an Acceding State, or who, immediately
before the 14th day of October 1955, was the duly recognised Ruler of an Acceding State.
Subsection (2) of section 87-A says that the provisions of sections 85 and 86 shall apply
to the Ruler of an Acceding State or of a Merged State as they apply to the Ruler of a
foreign State.

Now, in the present case, the Nawab of Kharan is not the Ruler of any Merged State. The
position of Kharan State in the Baluchistan Agency before 1947 was that of the territory
of the Government of India. It acknowledged the sovereignty of the British Government.
On August 15, 1947, after the Independence Act of 1947 came into force, this State
became independent. In March 1948 this State along with other Baluchistan States
entered into treaties with the Government of Pakistan and acceded to Pakistan. In 1952 a
covenant was signed by the Rulers of the four Baluchistan Union States to form
themselves into a Baluchistan States Union. With this end in view a covenant was signed
by the Rulers of these States on the 11th of April 1952, in which they authorised the
Council of Rulers composed of the four Rulers, to frame the Interim Constitution of the
Union with the approval of the Central Government. It was further agreed that till a
properly constituted Legislative Assembly came into existence, the Council of Rulers
were to make and promulgate laws and act as a Legislature. On the 2nd of November
1952 these Rulers executed fresh instruments of accession on behalf of the Union of
Baluchistan States through the Khan of Kalat, their President, and authorised him and his
successors-in-office to make all future Instruments on their behalf and on behalf of their
successors. It would thus be seen that from that time the Kharan State merged itself into
the Baluchistan States Union and had no individual entity.

In the light of the above facts it is quite clear to us that Kharan State has no individual
entity and is not headed by any Ruler. It is for this reason that the President of Pakistan
has not recognised Nawab Mir Mustafa Khan as the Ruler of Kharan State but only as
Nawab of Kharan. In our opinion section 87-A of the C. P. C. does not apply to this
respondent as he cannot be considered to be a Ruler of an Acceding State. Nawab
Habibullah Khan's case might have stood on a different footing but this provision of law
has no application to Nawab Mir Mustafa Khan. In the first place Kharan State is not a
Merged State within the meaning of the said Ordinance, which merged into West

Page No. 7 of 15
Pakistan. Secondly, Nawab Mir Mustafa Khan cannot be considered to be a recognised
Ruler of an Acceding State.

Apart from this, the Kalat Civil Procedure Code being a special legislation is still in force
and it is doubtful that the Civil Procedure Code of 1908 applies to the Baluchistan States
E Union area. Assuming that section 87-A applies to this respondent, even then the
objection of this respondent in this behalf is not of much consequence. Nawab Mir
Mustafa Khan was already a party to the original suit much before the enactment of the
above-mentioned legislation and his recognition as Nawab of Kharan. In that capacity he
was also joined as party to the appeal. It will be further noticed that section 86, C. P. C.,
talks of instituting a suit and not an appeal In Hansraj Gupta and others v. Dehra Dun-
Mussorie Electric Tramway Co., Ltd. (1) their Lordships of the Privy Council observed
that "the word `suit' ordinarily means and apart from some context must be taken to
mean, a civil proceeding instituted by the presentation of plaint". It seems to us that in the
context of section 86 C. P. C. that is the only meaning which can be given to the word
"suit". We are not inclined to include the word "appeal" within the word "suit" in the
context of the above provision of law. We therefore over-rule this objection.

The third objection raised on behalf of Nawab Mir Mustufa Khan is that this Court
cannot consider the appeal in respect' of the property in dispute which Nawab Mir
Mustafa Khan, the present Ruler of Kharan State, claims as his own and through his
father Sardar Habibullah Khan. This objection is based on the provisions of President's
Order No. 12 of 1961 called the Acceding State (Property) Order, 1961. Section 3 of this
Order reads as under:--

"Where any question arises directly or indirectly between persons claiming to be the heirs
and successors of the Ruler of a State or claiming to succeed to the State, concerning the
devolution and distribution of any property of that State or of the Ruler, the question shall
be decided by an order of the Central Government."

Kazi Muhammad Issa, the learned counsel for Nawab Mir Mustafa Khan, contended that
as the property in dispute belonged to the Ruler of Kharan State the jurisdiction to settle
such property vests in the Central Government and not in the Civil Courts. This
contention also has no substance because there is no dispute in the present case between
the heirs and successors of the Acceding State nor there is any dispute in this case as to
who should succeed to the State property. In fact there is no dispute in this case
concerning the devolution and distribution of any property of the State or of the Ruler.
The dispute in the present case is of the property of Sardar Nauroze Khan and Sardar
Yakoob Khan who cannot be described as the Rulers of the State within the meaning of
the above-mentioned Order. Under the provisions of subsection (A I R 1933 P C63) of
section 2 any order of the Central Government could only be given effect to not earlier
than the 15th day of August 1947. Sardar Nauroze Khan died in the year 1906 and Sardar
Yakoob Khan died in the year 1911 and therefore the Central Government under this
Order could not pass any order about the devolution or distribution of the property of the
above two mentioned Rulers of Kharan State. This objection therefore must fail.

It was next urged that under the Dastur-i-Amal Diwani Kalat, on the death of the Ruler
his heirs cannot be impleaded as parties to any pending proceedings. It is true that there is
no provision to this effect, but in the absence of any bar in the H Dastur-ul-Amal Diwani,
Kalat, on the ordinary principles of the administration of justice this procedure must be
considered to be inherent in any proceedings before a Civil Court. This objection also has
no force.

Lastly it was urged on behalf of Nawab Mir Mustafa Khan that he was impleaded as a
party in some appeals much beyond time. The provisions of section 27 of the Dastur-i-
Amal Diwani Kalat only say that an appeal should be filed against any order or decree
within 30 days. The appeal in this case was filed within the time stipulated. Nawab Mir
Mustafa Khan and some other persons were not originally impleaded as parties to the
appeals and revision applications, but later on the objection of the other party, were
impleaded as respondents. Under the practice and procedure prevalent in Pakistan, any
person can be impleaded as party to any proceedings at any time. But ordinarily no
person is joined as a party if the claim against him is barred by time. It is not alleged

Page No. 8 of 15
before us that the claim against Nawab Mir Mustafa Khan has become barred by
limitation.) This objection therefore must fail.

Another objection that all the heirs of the respondent's father were not impleaded as
parties to the suit and therefore the suit was bad for non joinder of parties has also no
force. This is a partition suit and in a partition suit what is necessary is f that the estate of
a deceased must be sufficiently represented. All the sons and daughters of Sardar
Habibullah Khan are represented in these proceedings and we do not think that the non
joinder of the widows of Sardar Habibullah Khan has in any way prejudiced his estate.
We therefore over-rule all they objections raised by Nawab Mir Mustafa Khan.

Mr. Riazul Hassan, the learned counsel for some of the respondents in this case, also
urged before us that an ad valorem court-fee should have been paid on the appeals filed in
this Court. The learned counsel for these respondents contended that the appellants are
out of possession of the property in dispute and an ad valorem court-fee should have been
paid on the value of the property in dispute. It was admitted at the bar that the property in
dispute is in the possession' of Mianji Khana, that is under the management of the
Government. Besides, the documents produced on the record show that the appellants
were considered throughout being in joint possession of the property left by Sardar
Nauroze Khan and Sardar Yakoob Khan. Sardar Habibullah Khan wrote separate letters
to the heirs of these persons in the year 1957 about the recognition of their rights and
offered them property in lieu of their shares. It is therefore quite clear to us that the
appellants are in joint possession of the property and the claim before us being in the
nature of the partition of joint property, it is not possible for us to hold that the court-fee
paid on the appeals is insufficient. It is a well settled principle of law that if the parties are
in joint possession of the property in dispute, a court-fee stamp of Rs. 10 is sufficient in
partition suits. Accordingly we hold that the court-fee paid on the appeals is sufficient and
the appeals on the ground of Insufficiency of court-fee cannot be thrown out.

Now we shall consider the dispute between the parties on merits. The litigation between
the parties has a chequered history. It will be noticed that four suits were filed by Bibi
Mah Bibi, Mir Ibrahim Khan, Mir Muhammad Rafique and Mir Shahbaz Khan in the
year 1952-53. Out of these suits Mir Shabbaz Khan's suit related to the property inherited
from Sardar Nauroze Khan and Sardar Yakoob Khan and the other suits related only to
the property inherited from Sardar Nauroze Khan. These suits were dismissed on the 9th
of August 1958 by the Kazi of Kharan on two grounds : (1) that the claim for partition of
property against Sardar Habibullah Khan was vague because there were no details of the
property required to be partitioned and (2) according to the principles of Shariat the case
could not be decided in the absence of the defendants. The findings of the Kazi in this
respect were challenged before the Majlis-i-Shura, Kalat Division. On the 17th of
February 1959 the Majlls-i-Shura remanded the above-mentioned cases for decision on
merits holding that the Kazi should call upon the plaintiffs to amend the plaint for the
removal of the vagueness and that both under the Shariat law and Dastur-ul-Amal
Diwani, Kalat, in case the defendant was absent the Kawas competent to take ex parte
proceedings against the absenting parties. They set aside the order of the learned Kazi and
directed him to decide the matter in the light of the directions given in their order.

On remand the above-mentioned suit again came up for decision before the Kazi of
Kharan. The plaintiffs in most of the suits furnished details of the property required to be
partitioned. They also filed along with their plaint certified copies of the settlement deed
of 1883 executed by Sardar Azad Khan in favour of his three sons, a letter written by
Sardar Habibullah Khan to the plaintiffs concerned expressing his readiness to give a
portion of the ancestral property in lieu of his or her share. It may be noted that Sardar
Habibullah Khan had died during the pendency of the above-mentioned appeals and his
legal representatives had already been brought on the record. Before the Kazi, out of the
legal representatives of deceased Sardar Habibullah Khan, Mir Muhammad Tabir Khan
only appeared on behalf of himself, his brothers and sisters. The other legal
representatives did not appear to contest the proceedings before the Kazi. Mir
Muhammad Tahir Khan did not file any written statement and took up the position before
the Kazi that since the property in dispute was under the management of the "Mianji
Khana;" that the property left by Sardar Habibullah Khan had not been ascertained and
the dispute between his heirs had not been settled, the proceedings in the above suits

Page No. 9 of 15
should be dismissed. They further contended that the property in dispute did not belong
to Sardar Azad Khan or Sardar Nauroze Khan, but were the properties of the late Sardar
Habibullah Khan. They however refused to give any further statement or assistance in
respect of the claim before the Kazi and expressed their inability to lead any evidence in
the above-mentioned matters. The learned Kazi, in these circumstances, took ex parte
proceedings against the legal representatives of the late Sardar Habibullah Khan.

The Kazi in the suits of Bibi Mah Bibi, Mir Ibrahim. Khan and Mir Muhammad Rafique
examined on the 14th of April 1959 Amir Muhammad Khan, Mir Ibrahim Khan and
Nawabzada Shahbaz Khan respectively as witnesses on behalf of the plaintiffs. Mir
Shahbaz Khan was also examined as a witness in his own case. These witnesses in their
statements relied on the settlement deed of 1883, the letter of deceased Sardar Habibullah
Khan dated the 24th of November 1957 and the list furnished by them in support of the
plaintiffs' claim. They also stated that they had been receiving during the life-time of
Sardar Yakoob Khan, maintenance allowances in lieu of their share in the property in
dispute and that it should be partitioned between them. The Kazi, on consideration of
these statements and the documents produced before him, accepted the plaintiffs' claim in
the above-mentioned suits and passed a partition decree in respect of the property in
dispute against the legal representatives of Sardar Habibullah Khan. In his order the Kazi
determined the shares of the plaintiffs in the property in dispute. He further safe-guarded
the interests of the opponents who rendered no assistance to him in any way by providing
in the decree that the properties which have been gifted by Sardar Nauroze Khan or
Sardar Yakoob Khan or had been given by Sardar Habibullah Khan to some of the heirs
of Sardar Nauroze Khan and Sardar Yakoob Khan in lieu of their share will not be
partitioned between the parties.

As already stated, two more suits were filed by the heirs of Sardar Nauroze Khan in the
year 1.958. Out of them one was filed by Jam Mir Khan and Changez Khan on the 27th
of November 1958 and the second suit was filed by Alsha Bibi on the 4th of December
1958. In the year 1958 three more suits were filed by Mst. Rabid. Bibl, Bibi Naz Jan and
Mir Rahim Khan and Hameedullah Khan, heirs of the late Sardar Yakoob Khan, against
Sardar Habibullah Khan. In these cases also only Mir Muhammad Tahir Khan appeared
on behalf of himself, his brothers and his sisters as the legal representatives of Sardar
Habibullah Khan. None of the other heirs, in spite of service, appeared before the Kazi,
who proceeded against them ex parse. Mir Muhammad Tahir Khan in these cases also
took up the position that the partition suits did not lie as the property in dispute was under
the management of the "Mianji Khana", that the property of Sardar Habibullah Khan had
not been ascertained and the dispute between the heirs of Sardar Habibullah Khan had not
been settled. He also pleaded that the property in dispute in these suits solely belonged to
Sardar Habibullah Khan and had nothing to do with Sardar Nauroze Khan or Sardar
Yakoob Khan. In these cases, also he gave no assistance to the Kazi in respect of the
objections raised by him and expressed his inability to lead any evidence in support of
them. The Kazi of Kharan, therfore, in these suits also took ex parte proceedings.

In the suits filed by Mir Jam Khan and Mst. Aisha Bibi the Kazi examined Mir Abdul
Kadir and Mir Pir Dil Khan as witnesses respectively, and in the suits of Bibi Rabia, Bibi
Naz Jan and Mir Rahim Khan and Hameedullah Khan he examined Muhammad Anwar
Khan, Mir Rahim Khan and Mir Abdul Kadir respectively as witnesses. These witnesses
in their statements, as in the ether cases, relied on the settlement deed of 1883, the list of
the property furnished by them and the letter of Sardar Habibullah Khan of the year 1957
offering them some property in lieu of their share in the property left by Sardar Nauroze
Khan and Sardar Yakoob Khan. The learned Kazi of Kharan in these cases also, on the
oral evidence produced before him and the documentary evidence referred to above, gave
a decree in favour of the plaintiff's on the 28th of April 1959.

The decrees passed in all the above-mentioned suits were challenged before the Majlis-i-
Shura only by Mir Muhammad Tahir Khan, his brothers and sisters in appeals solely on
the ground that no partition decree could be passed in respect of the property which was
not in possession of the appellants. The other heirs of Sardar Habibullah Khan, namely,
Mustafa Khan and Mir Sher Ali group did not file any appeal against the judgment and
decree of the Kazi passed against them in the abovementioned suits. It may be noted that
some of the plaintiff's filed appeals against the judgment of the Kazi in respect of the

Page No. 10 of 15
dismissal of their claim about the movable property on the ground that the Kazi should
have given them an opportunity to lead evidence about the movable property left by
Sardar Nauroze Khan and Sardar Yakoob Khan. The Majlis-i-Shura on appeal considered
the objections raised before them by the parties and set aside the judgments of the learned
Kazi dated the 18th of April 1959 and 28th of April 1959 in the above-mentioned suits
and remanded the suits for disposal to the Kazi of Kharan on the following grounds :-

(1) That the learned Kazi was not justified in making any mention about the alleged
properties gifted by Sardar Nauroze Khan and Sardar Yakoob Khan and also in respect of
the properties which were given by Sardar Habibullah Khan to some of the heirs of
Sardar Nauroze Khan and Sardar Yakoob Khan in lieu of their shares in the absence of
any material on the record to support it.

(2) That the learned Kazi in view of the denial of the defendants that the property in
dispute did not belong to Sardar Nauroze Khan and Sardar Yakoob Khan but belonged to
their father Nawab Abdullah Khan, in the absence of any evidence on the record should
not have treated it as belonging to Sardar Nauroze Khan and Sardar Yakoob Khan and
subjected to partition.

(3) If some of the defendants or all the defendants were absent on the day of hearing, then
it was incumbent on the Kazi to call upon the plaintiff's to prove their claim according to
the principles of Shariat and he should not have decided the matter in the absence of such
proof.

(4) That the Kazi had decided the matter against the principles of Shariat without
investigation which could not be maintained both under the Shariat and ordinary law.

Reference in this connection was made to Radul Mukhtar page 470-471 Kitab-ul-Kaza.
The Majlis-i-Shura rejected the plea of the plaintiffs that the judgment of the Kazi in
respect of the immovable property should be maintained and the case should only be
remanded for affording them an opportunity to establish their claim in the movable
property left by Sardar Nauroze Khan and Sardar Yakoob Khan on the ground that the
Kazi had decided the claim in respect of the immovable property without any proof and
secondly, on the ground that it was not known which of the properties out of the
immovable properties had been the subject-matter of gifts by the ancestors of the parties.

The Majlis-i-Shura remanded the above-mentioned case to the Kazi for decision after
affording further opportunities to the parties to lead evidence to prove their case.

The finding of the learned Majlis-i-Shura in the above-mentioned case has been
challenged before us in these appeals. It is urged on behalf of the applicants that there
was sufficient oral and documentary evidence before the Kazi of Kharan on which he
decided the matter in respect of the immovable properties in their favour. Their learned
counsel have referred us to the statements of the parties or their attorneys who were
examined by the Kazi in support of their claim. They have also referred us to the copy of
the settlement deed of 1883 endorsed by Sir Robert Sandeman on the settlement of the
property by Sardar Nauroze Khan on his three sons. Reference was also made to us to the
list of properties filed by the parties in which the details of the property left by Sardar
Nauroze Khan and Sardar Yakoob Khan and the properties given as blood money by
Sardar Amir Khan on the murder of Sardar Yakoob Khan were given. The learned
counsel contended before us that the proceedings before the learned Kazi were in the
nature of ex parte proceedings and as Mir Muhammad Tahir Khan and his brothers and
sisters did not furnish any proof in support of their objections, the learned Kazi was
perfectly justified in decreeing the appellants' claim in respect of immovable property. On
the other hand Syed Riazul Hassan and Mirza Muhammad Ahmad, the learned Advocates
for the respondents, have contended before us that the documents filed by the appellants
were inadmissible in evidence as they were not proved according to the law of evidence
prevalent in the Baluchistan States Union. They further contended that the evidence of
the parties was not recorded on oath and the list produced before the learned Kazi was
also not authentic and was not supported by any independent and reliable evidence. Mirza
Muhammad Ahmad, the learned counsel for some of the respondents, strongly urged
before us that the learned Majlls-i-Shura was perfectly justified in setting aside the

Page No. 11 of 15
judgments of the Kazi in the above-mentioned suits as they were not based on any
evidence.

After hearing the learned counsel for the parties and going through the record, it is quite
obvious to us that the proceedings before the Kazi in all the above-mentioned suits were
in the nature r, of ex parte proceedings. Mir Muhammad Tahir Khan only raised certain
objections before the learned Kazi about the maintainability of the suits and the learned
counsel for the respondents has not been able to satisfy us that the suits in question could
be dismissed or thrown out on those objections. It seems to us that merely because the
property in dispute was under the management of the "Mianji Khana" or that the property
of Sardar Habibullah Khan had not been ascertained or the dispute between the heirs of
Sardar Habibullah had not been settled, the plaintiffs' claim could not be defeated and the
suit for the partition of the property left by Sardar Nauroze Khan or Sardar Yakoob Khan
could not be dismissed on such flimsy grounds. Mir Muhammad Tabir Khan took an
objection before the learned Kazi that the property in dispute did not belong to Sardar
Nauroze Khan or to Sardar Yakoob Khan, but was not prepared to lead any evidence in
support of this objection. He stated in unambiguous terms before the learned Kazi that he
or his brothers or sisters were not prepared to lead evidence on this objection as long as
the dispute between the heirs of Sardar Habibullah Khan was not settled. In our opinion,
in these circumstances, the learned Kazi was fully justified to proceed in the suits before
him ex parte against the respondents before us.

Now the evidence before the learned Kazi of Kharan consisted of the statements of the
parties, the certified copy of the settlement deed of 1883, the copies of the letters written
in the year 1957 by Sardar Habibullah Khan and the list of the properties furnished by the
appellants. The learned Kazi also had before him the statement of Sardar Habibullah
Khan in the suit filed by Mir Muhammad Rafiq. In this statement he admitted the claim
of Mir Muhammad Rafiq and expressed his readiness and willingness to partition the
property between the parties in accordance with the Shariat Anwer, but only asked for
time on the ground that the Central Government had not settled the dispute of the parties
concerning the property in dispute and that it may be stayed till such a decision is taken.
Another circumstance before the Kazi was that apart from Mir Muhammad Tahir Khan,
no other legal representative of Sardar Habibullah Khan came forward to contest the
claim of the appellants before him in the above-mentioned suits. The contention of the
learned counsel for the appellants that the above-mentioned piece of evidence and the
circumstances were sufficient material before the learned Kazi to arrive at an ex parte
conclusion that the property in dispute belonged to Sardar Nauroze Khan or Sardar
Yakoob Khan is not without force. In our opinion the learned Majlis-iShura's observation
that the learned Kazi of Kharan in the abovementioned suits had decided the matter
without any proof or sufficient evidence is not correct and borne out by the record. The
learned Majiis-i-Shura in this connection has referred to the commentary of Radul
Mukhtar Kitab page 470-471. We have gone through this reference with the aid of the
Urdu translation of Dur-ul-Mukhtar published in 1925 by Munshi Navalkishore. The
relevant reference appears in Volume IV of the translation at page 240-41. There is
nothing in this reference which supports the contention of Majlis-i-Shura. The learned
author of Durul-Mukhtar has only observed that if any defendant is absent in spite of
service, then it is the duty of the Kazi to appoint a representative of the absenting
defendant before he decides the matter against him. This observation cannot be applied to
the facts of this case because in the Dastur-ul-Amal Diwani, Kalat, applicable to this case,
in section 6 it is stated that if the defendant fails to appear then ex pane proceedings could
be taken against him. It will be interesting to mention here that the learned Majlis-i-Shura
in their order dated 17th of February 1959 upset the decision of the Kazi of Kharan dated
the 9th of August 1958 and took a different view on this question. While dealing with the
question what should be done if the defendant had failed to appear the learned Majlis-i-
Shura observed as under :-

"So far as the question raised by the Kazi about the absence of the defendants, it is
wrong, because the Kazi himself has admitted that the Majlis-i-Shura has already directed
him that according to the Shariat Law it is open to the Kazi to proceed in the matter if the
defendant had been served and failed to appear and pass an ex parte decree, but the
learned Kazi has adhered to his old view and has not attached any importance to the
views of Majlis-i-Shura." (Translation is ours).

Page No. 12 of 15
In these circumstances, the view of the learned Majlis-i-Shura that the Kazi of Kharan
was not justified to pass an ex parte decree in these cases cannot be upheld.

Mirza Muhammad Ahmad, the learned counsel for some of the respondents, argued that
the settlement deed should not have been admitted in evidence because the original
document was not produced before the Kazi. The document is of a public nature. It is
even referred to in the report submitted by R. D. Sandeman, the Governer-General's
Agent, dated the 21st of June 1884 in M Appendix L printed by the late Government of
India. The copies produced before the Kazi were certified and were obtained from the
office of the Tehsildar. In these circumstances we are satisfied that the certified copy of
the settlement deed of 1883 being in the nature of a public document was rightly admitted
in evidence by the learned Kazi of Kharan.

It was also urged by Mirza Muhammad Ahmad that the details of the property given in
this document are not sufficient to identify the property left by Sardar Nauroze Khan and
Sardar Yakoob Khan or Sardar Mir Khan which ultimately fell to the heirs of Sardar
Yakoob Khan as blood money. This contention has no substance. It is admitted by the
parties that Sardar Azad Khan in the year 1883 settled most of his landed property on his
three sons Sardar Nauroze Khan, Sardar Azeem Khan and Sardar Amir Khan. The
property of Sardar Nauroze Khan devolved on Sardar Yakoob Khan. Sardar Yakoob Khan
was murdered by his uncle Sardar Mir Khan and his landed property was given to the
heirs of Sardar Yakoob Khan by the Shahi Jirga as blood money. Thus it is quite obvious
to us that from the list of the properties mentioned in the settlement deed of 1883 given to
the three sons of Sardar Azad Khan it can easily be ascertained what property came to the
share of Sardar Nauroze Khan and his heirs and to Sardar Yakoob Khan's heirs as blood
money. There can be no confusion so far as these properties are concerned. It is not the
case of the parties or of the plaintiffs that they are claiming any other property except
these properties. In our opinion the learned Kazi of Kharan in these cases has acted in a
very cautious manner. He has very properly safe-guarded the interests of the absenting
parties before him by making a provision that such property which had been gifted either
by Sardar Nauroze Khan or Sardar Yakoob Khan will no be partitioned between the
parties or will not form part of the subject-matter of partition. In these circumstances we
are satisfied that the judgment and decree passed by the learned Kazi of Kharan in the
above-mentioned suit were based on sufficient and reliable evidence placed before him
and the learned Majlis-i-Shura on the facts of the present case was not justified in
upsetting the decision of the Kazi in the above-mentioned suits.

We would also like to dispose of another objection of Mirza Muhammad Ahmad that the
statement recorded in the abovementioned suit before the learned Kazi was not taken on
oath and could not be relied upon for decreeing the suits of the plaintiffs. In our opinion
as the Kazi was to decide the case according to the Shariat Anwer it was not obligatory
on hinl to give oath to the witnesses who appeared before him. The parties are Hanafi
Muslims and under the Hanafi School it is not necessary to give an oath to a witness
because the word "testimony" implies an oath. This question has been discussed in
Falsafat Al-Tashri Fi-AI-Islam, translated by Farhat J., Zaideh, published in the year 1961
at page 185. The learned author under the heading of "Administering the oath to the
witness" observed as under:

"There are two views in the shariah concerning the administering of oath to a witness.
The first maintains that no oath need be required because the word testimony (shahadah)
implies an oath. This is the opinion of the hanafi school."

The learned author has later on discussed the views of the other schools, and as the
parties in this case are Hanafis it is not necessary to advert further on this question. In our
opinion this, objection also has no force.

We have carefully considered the judgment of the Majlis-I-Shura attacked before us in

these appeals. In our opinion the learned Kazi of Kharan has not departed from the
accepted Judicial principles in deciding the matters ex parte. Even in ordinary Civil
Courts in Pakistan under the Code of Civil Procedure of 1908, the principles on which ex
parte proceedings are taken and ex parte judgments are given, are the same on which the

Page No. 13 of 15
0 learned Kazi of Kharan decided the cases before him. In the case of F. Kanematsu &
Co. Ltd. v. S. Nazir Hussain Puri (P L D 1957 Kar. 832), the question and principles on
which ex parte decrees are passed was considered by one of us. It was held in that case
that before passing an ex parte decree the Court must at least hold that the case has been
prima facie proved by some evidence. It was further held in that case that it is the duty of
the Court when ex parte proceedings are taken, to consider the absence of the defendant
and the record should bear some indication that the matter was properly considered and
the Court applied its mind to the facts of the case. We are not prepared to place the
standard of proof in ex parte proceedings before the Kazi on a higher footing than what is
considered sufficient in the ordinary Civil Courts in Pakistan. In our opinion therefore,
the learned Majlis-i-Shura was not justified in setting aside the decree of the learned Kazi
in the above-mentioned suits.

Apart from this the learned counsel for the respondents have not satisfied us about the
justification of remanding the suits for re-trial before the Kazi. It is not disputed before us
that the several plaintiffs in the above-mentioned suits are the heirs of Sardar Nauroze
Khan or Sardar Yakoob Khan. There is also no dispute between the parties about the
shares of the various plaintiffs determined by the Kazi. The only dispute is about the
property left by Sardar Nauroze Khan or claimed by the heirs of Sardar Yakoob Khan.
There is no difficulty on this question. This property is described in a reliable document
namely the settlement deed of Sardar Azad Khan dated 31-12-1883, and this will only be
subject to partition. The Kazi had already safeguarded the interest of the respondents in
this respect. The decree passed by the Kazi is in the nature of a preliminary decree. The
parties before us have already been subjected to prolonged litigation and it seems to us
that if the suits are remanded for re-trial, it will result in the further harassment of the
appellants. So far as the respondents are concerned, their counsel have not been able to
satisfy us that their interest has seriously been prejudiced by the decision of the Kazi in
the above-mentioned suit. Accordingly we restore the decree of the Kazi of Kharan in the
above-mentioned suits and set aside the order of the Majlis-i-Shura in the above-
mentioned appeals.

Now we will consider the points raised in Revision No. 17 of 1959 filed on behalf of Mst.
Aisha Bibi and others. In this revision the petitioners have challenged the validity of the
partition proceedings pending before the learned Deputy Commissioner in execution of
the decree passed by the Kazi of Kharan in the above-mentioned suits. The learned
Deputy Commissioner during the partition proceedings had appointed five arbitrators to
partition the property between the parties. Mr. Muhammad Nawaz Khan, the learned
counsel for the petitioners, has contended before us that the learned Deputy
Commissioner is not competent to appoint any arbitrator on behalf of the parties to
partition the property in dispute between them. This objection appears to us to be well
founded. The procedure adopted by the learned Deputy Commissioner in the partition
proceedings bas not been supported by any of the parties appearing before us.
Accordingly we set aside the partition proceedings held up till now in respect of the
property in dispute by the learned Deputy Commissioner.

But we consider it desirable that some directions should be given to the executing Court
namely the Deputy Commissioner Kharan, for partitioning the property in dispute
between the various parties according to their shares as determined by tee Kazi In his
judgment in the above-mentioned suits. It must be clearly stated that the immovable
properties to be partitioned between the parties are those which are detailed and described
in the settlement deed of Sardar Azad Khan dated 31-12-1883. Properties which were
settled on Sardar Nauroze Khan under this deed are to be partitioned between the parties,
who claim their right from him. Properties of Sardar Amir Khan were awarded by the
Shahi Jirga to the heirs of Sardar Yakoob Khan and therefore these properties will also be
included for partitioning between the parties, who claim their right through Sardar
Yakoob Khan. It will be further noticed that the learned Kazi has observed in his
judgment that those properties which bad been gifted by Sardar Nauroze Khan or Sardar
Yakoob Khan will not form the subject-matter of the partition decree. In these
circumstances it will be open to the respondent to lead evidence before the learned
Deputy Commissioner or the local Commissioner appointed by him to prove that the
properties claimed by the plaintiffs in the above-mentioned suits as belonging to Sardar
Nauroze Khan or Sardar Yakoob Khan or Sardar Amir Khan have either been gifted or

Page No. 14 of 15
given in lieu of the shares of the heirs of Sardar Nauroze Khan or Sardar Yakoob Khan. If
the respondents are able to satisfactorily prove this fact in respect of any property, it will
be excluded from partition. We further direct that the learned Deputy Commissioner
should appoint local Commissioners for partitioning the property in dispute. These
officers, after giving notice and affording opportunities to the parties, should submit a
scheme for partition for the approval of the Deputy Commissioner. The learned Deputy
Commissioner, after inviting objections of the parties, should thereafter finally decide the
question about the manner in which the property should be partitioned In accordance with
their shares between the various parties.

The learned counsel for the opponents in the revision petition has urged before us that
three-fourths of the property has already been partitioned and they are enjoying the
benefits of the property. This partition can no longer stand and all such properties which
are in the possession of any of the parties should be taken over by the Deputy
Commissioner and should be managed by him through his own officers till partition is
effected between the parties. But in partitioning the property care should be taken that
those properties which have been developed by any party should be allotted to him or her
and if possible should be given to them fn lieu of his or her share. In the meanwhile ft
will be open to the learned Deputy Commissioner to allow maintenance allowances to the
parties concerned out of the income of the property in dispute in proportion to their
shares.

In the result the appeals and revision are allowed with costs.

A. H. Appeals allowed.

Page No. 15 of 15
P L D 1962 (W. P.) Peshawar 28

Before A. R. Changez, J

MIR MUHAMMAD KHAN-Petitioner

versus

Syed ABDUL SHAKOOR AND OTHERS-Respondents

Civil Revision No. 192 of 1957, decided on 18th December, 1961.

(a) Civil Procedure Code (V of 1908), O. XLI, rr. 27 & 28Appellate Court has no power
to remand case for trial de novo---Civil Procedure Code (V of 1908), S. 107.

There is no provision in the Civil Procedure Code, 1908 or any other civil law by which
Civil Courts are governed under which the Appellate Court can remand the case for trial
de novo: Rule 27 of Order XLI of the Code empowers the Appellate Court for reasons
specified therein to allow additional evidence at appellate stage. Rule 28 of Order XLI of
the Code provides that wherever additional evidence is allowed to be produced, the
Appellate Court may either take such evidence, or direct the Court from whose decree the
appeal is preferred or any other subordinate Court, to take such evidence and to send it,
when taken, to the Appellate Court. A case cannot be remanded to trial Court in order that
it might be reheard or plaintiff may be given another opportunity to prove his case by
calling fresh witnesses which might have been called on the first hearing.

Parsotim Thakur and others v. Lai Mohar Thakur and others A I R 1931 P C 143 ; Hira
Lai v. Rattan Lal A I R 1944 All. 293 ; Rampat Sahu v. Bhajju Sahu A I R 1936 Patna 160
and A. P. L. Palaniappa Chettiar v. A. K. R. M. S. Firm A I R 1935 Rang. 19 approved.

(b) Civil Procedure Code (V of 1908), S. 151-Does not empower Appellate Court to
remand case for trial de novo and give party another opportunity to prove his case.

In a civil case if the issues are not properly framed by the trial Court, or when the
Appellate Court frames additional issues, then the case can certainly be remanded to the
trial Court for recording fresh evidence on the issues. But this does not mean that when
the party has failed to establish his case then in that case also the Court is empowered
under section 151 of the Civil Procedure Code, 1908 to remand the case to the trial Court,
and to give the party another opportunity to prove his case.

Allah Bakhsh for Petitioner.

Pir Bakhsh for Respondents Nos. 1, 2, 40, 61 & 73.

Reader of Court for Minor Respondents.

Rest of the Respondents : Ex parte.

Dates of hearing : 15th and 18th December 1961.

JUDGMENT

This judgment will dispose of Civil Revisions Nos. 192 of 1957 and 327 of 1960. These
revision: arise in the following circumstances :-

Saifur respondent brought a suit before the Revenue Court for the recovery of Rs. 75 as
his share of produce against. Abdul Ghaffar respondent and some others, alleging that he
was the owner of the land measuring 29 kanals and 1 marla comprised in Khasra No.
2342/405-406, situate 9n village Qasami, and that it was cultivated by Abdul Ghaffar and
others as his tenants and that they had not paid him his share of the produce for kharif
1951 and rabi 1952. This suit was resisted by Abdul Ghaffar respondent, who raised the
plea of title, and, consequently, he was directed by the Revenue Officer to seek his

Page No. 1 of 4
remedy in a Civil Court. Abdul Ghaffar respondent then brought this suit against Saifur
and 74 others for a declaration that he was the owner in possession of the suit land and
that the defendants were not entitled to it, and as such, could not recover a share of the
produce from him. He alleged that the property in dispute originally belonged to Amir
Khan, the predecessor-in-interest of defendants 1 to 3, Abdul Hakim the predecessor-in-
interest of defendants 4 and 5, Zarif, the predecessor-in-interest of defendants 6 and 7,
Akbar Shah, the predecessor-in-interest of defendant 8, and Bazmir, the predecessor-in-
interest of defendants 9 to 13, and that they had sold it to Abdul Qahar Khan, the
predecessor in interest of the plaintiff, in 1891, and that he had taken possession of the
suit property as an owner, and on his death, the plaintiff got possession. He further
alleged that due to some erroneous entries occurring in the revenue records defendant No.
1 had brought a suit for the recovery of the share of produce, which was resisted by him,
and he was directed by the Revenue Officer to seek his remedy in a Civil Court. The suit
was resisted by some of the defendants, and on the pleadings of the parties, the following
issues were framed :-

(1) Whether the suit is within time ?

(2) Whether the plaintiff has a cause of action ?

(3) Whether the plaintiff is the owner of the suit land, and the entries in the revenue
papers are wrong ?

(4) Whether defendant 1 is a bona fide purchaser without notice from the ostensible
owner in good faith, if so, to what effect ?

(5) Relief ?

2. In support of his right of ownership over the suit property, Abdul Ghaffar respondent
placed reliance on the sale deeds (Exhs. P. E. to P. H.), which purported to have been
executed by Amir, Abdul Hakim, Zarif, Akbar Shah and Bazmir respectively. These sale-
deeds, however, did not mention the khasra numbers of the lands sold by these persons,
and the boundaries of the lands were also not given. The trial Court, therefore, decided
issue No. 3 in the negative, and dismissed the plaintiff's suit with costs. Abdul Ghaffar
respondent went up in appeal to the Additional District Judge, Peshawar, who, by his
order dated the 15th of April 1957, accepted his appeal and remanded the case under
section 151, Civil Procedure Code, to the lower Court for trial de novo. Mir Muhammad
Khan, one of the defendants, filed this revision against the order of the learned Additional
District Judge. During the pendency of this case before this Court, he died, and his legal
representatives, Taj Muhammad, Sher All, Mst. Faqirai, Mst. Hussan Bano and Mst. Sher
Bano, have been brought on the record.

3. Learned counsel for the petitioners has urged that the learned Additional District Judge
had no jurisdiction to remand the case to the lower Court for trial de novo. The learned
Additional District Judge, while dealing with issue No. 3, referred to the five sale-deeds
(Exhs. P. E. to P. H.) and observed that Abdul Qahar had purchased some land situated in
village Qasami from the persons who had executed those sale-deeds. He went on to say
as follows :-

"It is true that the khasra numbers of the land sold and its boundaries have not been given
in the sale-deeds, but in my opinion, the trial Judge was ill-advised in dismissing the
plaintiff's suit on this ground. He ought to have summoned the Saddar Kanungo to find
out as to what was the land owned by Amir son of Hastam, Abdul Hakim son of Ali
Khan, Zarif son of Amir Khan, Akbar Shah son of Ahmad Shah and Baz Mir son of
Muhammad Mir, and what were their khasra numbers, and what fresh khasra numbers
were given to them in the settlement of 1895-96, and in the last settlement of 1925-26,
and then he should have found out as to whether the land in dispute bearing Khasra No.
2342/405-406 corresponding to the old khasra numbers which were sold by the vendors
or not. It, therefore, follows that the case was not properly conducted in the Court below,
and so I accept the appeal, set aside the judgment and decree of the lower Court and
remand the case under section 151, C. P. C. to it for trial de novo in the light of the above
remarks."

Page No. 2 of 4
4. Learned counsel for the petitioners has drawn my attention to Order XLI, rule 27, C. P.
C. which empowers the Appellate Court for the reasons specified therein to allow
additional evidence. Rule 28 provides that wherever additional evidence is allowed to be
produced, the Appellate Court may either take such evidence, or direct the Court from
whose decree the appeal is preferred, or any other subordinate Court, to take such
evidence and to send it, when taken, to the Appellate Court. These rules have been
interpreted by the Privy Council as long ago as 1931, and their Lordships of the Privy
Council have laid down in Parsotim Thakur and others v. Lal Mohar Thakur and others
(A I R 1931 P C 143), that the provisions of section 107 as elucidated by Order XLI, rule
27, are clearly not intended to allow a litigant who has been unsuccessful in the lower
Court to patch up the weak parts of his case and fill up omissions 1n the Court of Appeal.
It has been further held by their Lordships that under Rule 27, clause (1) (b), it is only
where the Appellate Court `requires' it, that additional evidence can be admitted. The
word `requires' has been further explained `that it may be required to enable the Court to
pronounce judgment, or for any other substantial cause, but in either case, it must be the
Court that `requires' it.'

The learned Additional District Judge has not utilised this provision of law for the
purpose. He somehow thought that he had very wide powers in remanding the case to the
trial Court for trial of -the case de novo. It may be that the learned Additional District
Judge was thinking of the provisions of the Code of Criminal Procedure. I have not been
able to find in the Code of Civil Procedure or any other civil law by which Civil Courts
are governed any provision of the nature under which the Appellate Court can remand the
case for trial de novo. The obvious purpose of the order of remand seems to be that the
Court wanted to give the plaintiff fresh opportunity to produce evidence in support of his
title. The learned Additional District Judge further thought that there was some law which
cast on the trial Court the duty to call for certain documents through the Sadar Kanungo
in order that the plaintiff's title might be established. I am afraid there is no such lave
under which such an order could have been passed by the learned Additional District
Judge. In support of this proposition, the learned counsel for the petitioners has cited
before me the following cases:-

(1) Hira Lal v. Rattan Lal A I R 1944 All. 293,

(2) Rampat Sahu v. Bhajju Sahu A I R 1936 Patna 160, and

(3) A. P. L. Palantappa Chettiar v. A. K. R. M. S. Firm A I R 1935 Rang. 19.

I agree with the principle laid down in these rulings that a case cannot be remanded to the
trial Court in order that it might be re-heard or the plaintiff might be given another
opportunity to prove his case by calling fresh witnesses which he might have called on
the first hearing.

5. Learned counsel for Abdul Ghaffar respondent has contended that the order having
been passed in the exercise of jurisdiction under section 151, C. P. C. the learned
Additional District Judge could have remanded the case for trial de novo. In support of
this proposition he has not been able to cite any authority. I am conscious of the fact that
if the issues are not properly framed by the trial Court, or when the Appellate Court
frames additional issues, then the case can certainly be remanded to the trial Court for
recording fresh evidence on the issues, but this does not mean that when the plaintiff has
failed to establish his case then in that case also the Court is empowered under section
151, Civil Procedure Code, to remand the case to the trial Court, and to give the plaintiff
another opportunity to prove his case.

6. After a careful consideration of this aspect of the matter, I am clearly of the opinion
that the learned Additional District Judge had acted in excess of his jurisdiction in
remanding the case to the trial Court for trial of the case de novo. I, accordingly, accept
this revision petition with costs, and setting aside the order of the learned Additional
District Judge, dated the 15th of April 1957, direct the lower Appellate Court to re-hear
the appeal and dispose it of on the material already on the record.

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7. The connected revision petition is the off-shoot of the order of remand. After the ease
had been remanded to the trial

Court, the Court recorded such evidence for the parties as they wished to adduce, and
again dismissed the suit of Abdul Ghaffar. His appeal has also been dismissed by the
Additional District Judge. In view of the order passed by me in Civil Revision No. 192 of
1957, the proceedings taken by the trial Court after the order of remand were null and
void. This revision petition has therefore become infructuous, and I, accordingly, dismiss
it with costs.

K. B. A. Order accordingly.

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