1988 PLP 33 (CLC)

2. Facts of the case, briefly stated, are that Zarif Khan and two others, heirs of Sharif Khan, on 1‑4‑1974 instituted suit No.128/1 against Munawar Khan (defendant) for possession by partition of 1/2 share in a hujra described by boundaries in the plaint. It was alleged therein that the entire hujra originally belonged to Ghawar who was survived by his two sons, namely, Atai Khan and Sharif Khan and inherited his property in equal shares. Plaintiffs are the heirs of Sharif Khan while the defendant is the son of Atai Khan and as such claimed 1/2 share out of the suit Hujra. In his written statement the defendant resisted the plaintiffs' suit on the ground that the suit was not properly valued for the purposes of court‑fee and jurisdiction and that it was not within time. On factual side though no clear denial was made of the fact that the Hujra originally belonged to Ghawar, their common predecesser, however, it was stated that the plaintiffs were not entitled to any share in the hujra as they never used it in assertion of their title. The learned Civil Judge, Nowshera framed the following issues arising out of the pleadings of the parties. (1) Whether.the suit is within time? OPP (2) Whether the suit is properly valued for the purposes of court‑fee and jurisdiction? OPP (3) Whether the plaintiffs have got the cause of action? OPP (4) Relief.

3. After recording evidence of the parties the learned Civil Judge vide his order dated 14‑6‑1975 passed a preliminary decree for possession by partition of the share claimed in the plaint. Aggrieved by the judgment and decree the defendant went in appeal in the Court of Additional District Judge, Nowshera who accepted the appeal, set aside the judgment and decree of the lower Court and remanded the case back under section 151, C.P.C. for de novo trial with the direction to frame fresh issues and to give full opportunity to the parties to produce their evidence and then to decide the case afresh on merits vide order dated 14‑4‑1980. After the remand the learned trial Judge framed as many as seven issues. Issue No.6‑A was framed with regard to the plea of adverse possession. After framing of these issues Zard Ali Patwari Halqa was examined on behalf of the plaintiffs who placed on file copy of Jamabandi for the year 1963‑64, which is Ex.PW. 1/1 and also copy of the pedigree table which is EX.PW.1/2. He also placed copies of the subsequent Jamabandis for the years 1967‑68 and 1971‑72 which are Ex‑R. PW.1/1 and EX.R.PW.1/2. In cross‑examination he stated that hujra is within the village Abadi regarding which he could produce no other record. The plaintiff thereafter closed his evidence after making his statement that the pre‑remand evidence may be treated as his evidence on the issues framed in the case. Munawar Khan defendant appeared as his own witness and examined Sultan Shah and Jan Khan as his witnesses. In his statement he admitted that the hujra in dispute was originally constructed by his father Atai Khan but on its demolition by rains he reconstructed it some 30/35 years back. He did not deny his relationship with the plaintiffs and admitted that their agricultural land was joint but it was partitioned some 50 years back. In cross‑examination he admitted that Ghawar was his grandfather, who was survived by his two sons Sharif Khan and Atai Khan. He also admitted that the plaintiffs inherited the property left by Sharif Khan while he inherited the share of Atai Khan. He also admitted that the site underneath the hujra was the ancestral property. He further stated that Zarullah was a co‑sharer in the hujra but through petition he separated his share and constructed on the site a hujra which is now named the hujra of Zarullah and the same is adjacent to the suit hujra. He did not recollect the period when the partition took place. Similar is the statement of Sultan Shah and Jan Khan. Both of them deposed that Atai Khan constructed the hujra and thereafter it was the defendant who reconstructed it some 30/32 years back. The learned trial Judge discussed the merits of the case under issue No.4 and held there under that the suit hujra was owned and possessed by Ghawar Khan predecessor‑in‑interest of the parties. The possession of the defendant over the suit hujra was held to be in his capacity as a co‑sharer and not adverse to the plaintiffs while giving his decision on issues No. 6‑A . Rest cf .the issues were decided against the defendants and in favour of the plaintiffs. Consequently, the plaintiffs' suit was decreed with the direction to the plaintiffs to make up the deficiency in the court‑fee on the amount of Rs.10,994 assessed by the Commissioner, as the market value of the suit hujra. Aggrieved by the judgment and decree the heirs of Munawar Khan filed an appeal against it in the Court of District Judge, Peshawar, who dismissed the appeal vide his order dated 14‑11‑1985 with the following observations:‑ "The question, as whether the defendant has made certain improvements in the suit property and whether he is entitled to the payment of some compensation would be thrashed out by the learned trial Judge during proceedings of final decree when actual partition of the hujra shall take place." Aggrieved by the observations referred to above the plaintiffs have challenged it in Revision Petition No. 673 of 1986 while the defendants have challenged the judgment and decree of both the Courts in Revision Petition No. 750/1985. The learned counsel for the defendant respondents raised preliminary objection that the Revision Petition filed by the plaintiffs is hopelessly barred by time. He firstly admitted that though no specific period of limitation is provided for filing of Revision Petition, yet the superior Courts have always expressed the view that normally the period provided for an appeal may be considered as period for filing of a revision petition but there is no bar in entertaining revision petition filed beyond the period in suitable and exceptional cases. Reliance was placed on Manager, Jammu and Kashmir, State Property in Pakistan v. Khudayar etc. P L D 1975 SC

678. Admittedly the impugned judgment and order was passed on 14‑11‑1985 and the plaintiffs‑petitioners applied for its copy on 24‑9‑1986 i.e. after about 10 months and 10 days. Copies were supplied to them on 20‑10‑1986, while the revision petition was filed on 5‑11‑1986. Such being the position and there being no cogent reason for condonation of delay applied for, Civil Miscellaneous Applicaton No. 501 of 1986 and Revision Petition No. 673 of 1986 stand dismissed, leaving the parties to bear their own costs.

4. The learned counsel for the defendants‑petitioners contended that the hujra in question situated within the village Abadi is presumed to be Shamilat Deh and in the absence of all other co‑sharers and members of the proprietary body of the village the suit for partition is not maintainable. It was further contended that the hujra in question meant for the use of the village community is unpartitionable under the provision of section 136 of the West Pakistan Land Revenue Act. In support of his contention the learned counsel referred to Digest of .Civil Law (Cumstomary Law) in the Punjab by the Late Sir. W.H. R#ttigan, K.C. LL.D. (Thirteen Edition) page 1022. He also referred to case No.22 Nasrullan Khan and another v. Naqibullah and others" reported in C . R . No. 103 of 1904 of the Judicial Records of the N.‑W. F. P. 1901‑1909.

5. After hearing the learned counsel for the parties at length alnd perusal of the judgments and the law cited, I find no force in the contentions raised by the learned counsel for the petitioners. There is no denial of the fact, as the defendant himself in his statement recorded in Court admitted, that the hujra in question was in the shape of a but originally belonged to Ghawar, the common predecessor of the parties and it was Atai Khan who constructed it; that it collapsed by floods and rains whereafter he reconstructed it some 30/35 years back. It is not his case that at the time of partition of agricultural land left by Ghawar the hujra iri suit had fallen to the share of Atai Khan or the defendant. In the absence of such evidence the plaintiffs' entitlement to the extend of share in the suit property stands established. The defendant mainly resisted the plaintiffs' claim on his having raised construction over the site in question some 30/35 years back and is in occupation of it. In view of the nature of the property and the evidence on the file, the defendant's plea of exclusive possession in assertion of his sole ownership cannot be accepted. His possession even if proved to be exclusive would be that in the capacity of a co‑sharer and permissible in character under the law and not adverse to the other co‑sharers. The argument that the site underneath the hujra is Shamilat Deh is against the pleadings of the parties, apart from there being led no evidence in this regard. The Patwari Halqa, who appeared in the witness‑box, simply stated that the hujra is within the limits of Abadi Deh; it does not necessarily mean that Abadi Deh exists on Shamilat land. As such there is no force in the argument that partition of the hujra in the absence of other co‑sharers and proprietary body of the village is not maintainable. His argument is further rebutted by the statement of the defendant himself in which he had admitted that a portion of the hujra was given to Zarullah in partition on which he has constructed a hujra adjacent to the suit one.

6. The authorities relied upon by the learned counsel are also not applicable to the facts of the present case rather these support the impugned judgments. Paragraph‑261 of the Digest of the Customary Law referred to above deals with the "partition of village site" and it provides that the village site, unless in a very rare case of its being assessed to land revenue, cannot be partitioned by proceedings under the Punjab Land Revenue Act, 1887 (Section 136 of the West Pakistan Land Revenue Act). It refers to those village sites which are usually recorded as the common property of the community. In the instance case as already held the site underneath the hujra is the ancestral property of the parties alone and the village community has got no interest or title in it. No doubt, application for partition of certain village sites, if Shamilat Deh, is barred under section 136 of the West Pakistan Land Revenue Act, but the jurisdiction of the Civil Court is not ousted. It was not the case of the defendant at any stage that the village site on which the hujra in suit exists is Shamilat Deh or it is used by the village community for certain common purpose. In "Nasrullah Khan and another v. Naqibullah Khan and others" referred to by the learned counsel for the petitioner in Para‑4 of this judgment, private hujra established by an individual Malik and a common hujra established by a section of the village community on Shamilat land has been distinguished. After considering the material before their Lordships, it was held:‑ "Now it is quite intelligible that when a hujra has been established on 'shamilat' land by a section of a village community, and the labour and materials have been provided by way of 'tar' and by mutual contributions of the co‑sharers, customs should discountenance the partition, or the liability to partition, of the hujra. Such a customs would be based upon public convenience and general expediency and, the hujra being designed to meet the common purposes of the community and their dependents as a meeting place, and to provide for the requirements of hospitality in regard to their visitors and guests, it would be unreasonable that such an institution should be liable to be broken up on partition at the option or at the whim of an individual co‑sharer. Instances of such shamilat hujras are to be found in Nos.68, 167, 232 and 334 of the Census record of 1870; and in the one instance in which such a hujra No.167 was partitioned, it was done as an executing proceedings with the mutual consent of all the co‑sharers. But the case of a hujra established by an individual Malik stands on an altogether different footing. If an individual Malik, who has attained to a position of opulence and influence in the village community, establishes a hujra on his own account, that hujra is merely his public sitting place, where he receives his friends and visitors, and puts up guests and strangers. If the owner chose to discontinue the maintenance of the building as a hujra, he would be within his rights in doing so; but after his death the hujra would be liable to partition among his heirs in the same way as his lands and dwelling houses. If his heirs cost to partition the hujra, there is no custom to prevent their doing so; they might lose a certain amount of prestige in the community thereby, but that would be in their own look‑out."

7. On facts and circumstances of this case the hujra in suit being the ancestral property of the parties not established by the community for the common use on shamilat land was rightly held by the Courts below partitionable and the plaintiffs entitled to the decree prayed for. There is, therefore, no force in Revision Petition No. 750 of 1985 which is also dismissed leaving the parties to bear their own costs. A . A . / 570 / P Revision dismissed.