1999 PLP 2182 (SCMR)

Saber, Advocate-on-Record, for Petitioners. Muhammad Akhtar, Advocate Supreme Court, fox Respondents. Date of hearing; 2nd July, 1999. MUHAMMAD BASHIR JEHANGIRI, J.-.-This appeal by leave of this -Court is directed against an order of a learned Single Judge of Peshawar High Court, dismissing Civil Revisions Nos.211 of 1985 and 182 of 1985 filed by the parties before us.

2. The factual background of the appeal is that Muhammad Abbas Khan, his three brothers and his sisters instituted a suit against Jehanzeb and others for possession by partition of a residential house and a 'Hujxa' filly described in the heading of the plaint, situate in the Abadi of Village Rajjax, Tehsil and District Charsadda, it was alleged in the plaint that the disputed property alongwith other residential property belonging to Bahadar Khan, predecessor-in-interest of the parties, had been privately partitioned amongst his heirs. The disputed house being in possession of the tenant and the Hujra being in common use were, however, left, joint. The appellants were occupying the Hujra as the residential house was in dilapidated condition, therefore, they had temporarily shifted to the Hujra, but later on they had declined to vacate the same which obliged the respondents to seek the partition of the disputed property. The petitioners, in their joint written statement, did not concede to the rights claimed in the disputed property by the respondents saying that it did not wholly belong to the petitioners and was in possession of the respondents for more than 50 years and had also affected improvements therein incurring a sum of Rs.80,

000. The learned trial Judge, on these pleadings of the parties, framed as many as nine issues including the relief. Nonetheless Issue No. 8: "Whether the plaintiffs is/are entitled to the decree of partition as prayed", has survived for determination. The learned trial Judge on Issue"No.8 held that the "respondents were entitled to the decree as prayed for" and decided this issue in their favour. In the first appeal, the learned Additional District Judge, Charsadda, raised the three questions for determination: "(i) What is the legacy of Bahadur Khan; (ii) which one from that is joint and which one from that is exclusive; (iii) whether the third house in possession of the father of petitioners before us belongs to him or it being a joint property is liable to partition" . On the first question, it was held that Bahadur Khan had left three houses and a Hujra; further that he was survived by six sons, one daughter and a widow and; that Said Karim, father of the petitioners before us, was one of the sons of Bahadur Khan. On the next question, it was held that three houses and a Hujra have remained joint between the parties. However, a house which had been in occupation of Said Karim was considered to be his exclusive property and which fact had been conceded by the plaintiffs respondents in the statement of Shah Jehan (P.W.2) and a letter, Exh.PWI/1 addressed to the Chairman, Union Council, Rajjar.

3. The learned first Appellate Court made a reference to a partition deed Exh.PW2/2 wherein Mumtaz Khan, Abbas Khan, Fazl-e-Rabbi, Shah Jehan and Abdul Karim, sons of Bahadur Khan, had partitioned two houses amongst themselves and that also included the Hujra in dispute. The learned First Appellate Court while conceding that it was an unregistered deed held it "relevant for the collateral purposes of proving that some partition was effected". The learned First Appellate Court excluded the house in dispute from partition on the ground that according to the partition, the one house possessed by the father of the defendants had been given to him and that because of this reason no mention of that house in the partition deed between Mumtaz Khan etc. and the other five brothers has been made. The decree to the extent of partition of Hujra was, however, maintained but the appeal was partially accepted excluding the disputed house from the partition.

4. The parties, feeling aggrieved, filed Civil Revisions Nos.211 and 182of 1985 which were heard and disposed of together by the order, dated 16-6-1993, posed by a lees Single Judge of the High Court. The petitioners have challenged the judgment and the decree passed by the learned First Appellate Court maintaining the impugned judgment and the decree of the learned trial Judge to the extent of Hujra alone. The plaintiffs-respondents Muhammad Abbas Khan etc. were dissatisfied with the exclusion of the house by the learned Additional District Judge from partition. Leave to appeal was granted to examine the following contentions which had been noted b Court in the order, dated 4-9-1994:-- "It was contended by the learned counsel for the petitioners that partition deed, dated 20-8-1971, relied by the Courts below is not binding on the petitioners as neither they nor their father was signatory to it; rather it is an arrangement amongst the 5 sons of Bahadur Khan deceased. It is also contradicted by letter addressed to Union Council COPY E , D,W,l/1 placed on file, that in absence of 'any valid and binding partition among the heirs of Bahadur Khan of their ancestral property the plaintiffs/respondents' suit for partition of part of the joint holding was incompetent. Leave is granted to consider the above contention. " 5- In support of this appeal, Mr. K.G. Saber, learned Advocate Supreme court, representing the appellants, has reiterated the contentions which he had raised at the leave granting stage that partition deed, dated 20-8-1971 relied upon by the Courts below was not binding on the appellants as neither they nor their father was signatory thereto. According to the learned counsel it was an arrangement amongst five sons of Bahadur Khan deceased and further that it was also contradicted by the letter copy Exh.D.W,l/1 addressed to the Union Council. It was lastly urged with vehemence that in the absence of any valid partition among the hairs of Bahadur Khan the ancestral property in dispute could not be partitioned as part of joint holding.

6. Mr. Muhammad Akhtar Khan, learned Advocate Supreme Court representing the plaintiffs-respondents, has defended the impugned judgment, passed by the learned Appellate Court and duly affirmed by the learned Single Judge of Peshawar High Court.

7. We have noted the reasoning that weighed with the learned First Appellate Court in excluding the disputed house from partition and maintaining the judgment of the learned trial Judge to the extent of only' the Hujra. The learned First Appellate Court has actually conceded that though the private partition deed Exh.P.W.2/2 was unregistered still it could be looked into for collateral purposes. The learned First Appellate Court has referred to the. statements of the parties that the house in possession of the father of the appellants was given to them exclusively and that it was on that account that it found no mention in the partition deed. The appellants have not filed photo copy of the original partition deed Exh.PW-2/2. Nonetheless the perusal of the photo copy of another copy prepared during the trial reveals that all the five sons of Bahadur Khan have apparently put their signatures on the partition deed aforesaid, dated 20-8-1971. Had the appellants filed the photo copy of the original partition deed, it would have manifestly shown whether it had or had not been signed by the five sons of Bahadur Khan. Having not filed it the presumption is irresistible that had they filed the photo copy of the original partition deed it would have been shown that it had been signed. The first contention of the learned counsel is thus untenable.

8. We have perused the photo copy of the letter, dated 18-4-1981 addressed by Muhammad Abbas Khan etc. and Abdul Karim. The perusal of the letter would show that it does not contradict the contents of the partition deed Exh.P.W.2/2. It rather affirms that the Hujra in dispute was common between the parties and, therefore, the partition had been rightly passed. .

9. Having examined the judgments of the two Courts below and that of the High Court, we are of the view that their approach to the controversy raised is unexceptionable. As to the improvements alleged to have been made by the appellants, suffice it to observe that this point was neither urged before the Courts below nor was raised at the leave granting stage and further that this contention is devoid of any substance.

10. No justification has, therefore, been made out for interference with the findings of fact recorded by the learned Courts below. This appeal having no merit is accordingly dismissed. M.B.A./J-30/S Appeal dismissed.