In the instant case the order making the rule of the Court itself declared that the Award was considered to be rule of the Court subject to registration. It was not claimed that the Award was ever registered nor the courts below ascertained the true factual position. Being so, this question needs to be addressed by allowing the parties opportunity of evidence. In case it ultimately transpires that the Award was registered the question for determination will also be as to whether such an instrument shall create any title effect in partition of the property or will be deemed to be admissible document to serve any useful purpose to assume that joint property was partitioned in accordance with law so as to assign independent entitlement in different portions to different shareholders and, if not, what course will be opened to the parties for conclusive settlement of such dispute. Another question will be to the effect that “khangi taqseem nama” dated 19.11.2018 claimed by the petitioners on the basis whereof distribution of property with the consent of the all concerned is claimed, as to whether this document was actually executed by the parties and, if so, what will be its effect and whether it could modify the Award if admissible and whether the document is enforceable in law which will require serious deliberation in this case. Considering the matter from any angle it was a suit which could be decided only after evidence and questions raised therein could not be determined without framing issues and recording evidence of the parties. Factual and legal controversy having been raised in the pleadings it was not a case of rejection of plaint under Order VII, Rule 11, C.P.C. The orders of the courts below, therefore, suffer from serious error of jurisdiction and law, are based on misreading of record as well as are contrary to settled rule in the matter and, as such, warrant to be annulled.
C.R. No.2494 of 2022
Mahboob Ahmad and others v. Ayub Ahmad and others
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