1989 PLP 3979(2) (MLD)

This revision petition is directed against the judgments and decrees dated 19 2‑1987 and 6‑6‑1988 passed by the learned Civil Judge and the learned Additional District Judge, Multan, respectively.

2. The petitioners had filed a suit for partition of the disputed house No. 1047/X. Exsituated in Chowk Rashidabad, Multan. The total area of the said house is 10 marlas, out of which the petitioners claim to be the owners of 8 marlas and the respondent owns 2 marlas. On the pleadings of the parties, the trial Court framed the following issues :‑‑ (1) Whether this suit is barred under Order 9, Rule 9 C.P.C. ? (2) Whether the plaint is liable to rejection under Order 7, Rule 11 C.P.C.? (3) Whether Shah Muhammad was the original owner of the suit property ? (4) Whether the plaintiffs are the owners of 8/10 share in the suit property ? (5) Whether the plaintiffs are entitled to the partition of suit property to the extent of their share? (6) Relief. After recording the evidence of the parties, the trial Court held on issue No. 1 that the suit was barred by time. Issues No. 2 and 3 were decided against the defendant. On issue No. 4, it was held that the plaintiffs were owners of 8/10 share in the suit property. However, the partition was refused and it was held that the properties owned and occupied by the parties were not joint. Consequently, the suit was dismissed vide judgment and decree dated 19‑2‑1987. On an appeal preferred by the petitioners, the finding of the trial Court on issue No. 1 was reversed but the findings on other issues were maintained and the appeal was dismissed by the learned Additional District Judge vide his judgment and decree dated 6‑6‑1988.

3. The learned counsel for the petitioners contends that the petitioners were owners of 8/10 share in the property. The Courts should have decreed the suit in favour of the petitioners. He assailed the findings of the Courts below on issue No.

5. On the other hand, the learned counsel for the respondent urged that both the parties got properties through different owners and not from the common owner as claimed by the petitioners. He further submitted that even if the property was common at one time, it was privately partitioned somewhere in 1941 and since then were separately occupied by the owners. Hence, there was no question of ordering partition of the disputed property at this stage.

4. With the consent of the parties, I had appointed Mr. Nobr Alam Qureshi, Advocate, as local commissioner to inspect the site and submit the report. The report of the commission reveals that the petitioners are in possession of property A, B, C, D, shown on the map prepared by the commissioner. The respondent is in possession of the portion shown in the green colour which measures about one marla. If the shops shown at number 1 and 2 are added, then the area comes to two marlas. The said shops are also being claimed by Muhammad Rafiq, respondent. Apparently, these shops seem to be a part of the property belonging to Muhammad Rafiq, respondent. The two properties are separated by a lane. The petitioners inherited the property from Shah Muhammad, while the respondent was gifted the property by Mst. Beeban, who had inherited the same from her brother Allah Ditta. It is evident from a copy of the mutation Ex. D‑5 that Allah Ditta had separately purchased two marlas of land and the said property devolved on Mst. Beeban as sister of Allah Ditta deceased. The mutation Ex. D‑5 was sanctioned on 9‑6‑

41. Since then it was separately in possession of Allah Ditta and Shah Muhammad had nothing to do with this land. The house was gifted to Muhammad Rafiq, respondent, on 18‑6‑1978 and since then he is independently in occupation of the same. Even if it is assumed that Shah Muhammad was the owner of 10 marlas of land, out of which he gave two marlas to Mst. Beeban, his step‑daughter, the suit for partition was incompetent because he himself admitted that the property was privately partitioned. He stated that the partition had taken place 8 years earlier (before making statement on 27‑2‑84). The findings of‑the Courts below do not suffer from any legal infirmity so‑ as to call for interference in the exercise of the revisional jurisdiction. This revision petition is, therefore, dismissed leaving the parties to bear their own costs. H.B.T./A‑775/L Revision dismissed.