2010 PLP 995 (CLC)

SAIF-UR-REHMAN, J.

This revision calls in question judgments and decrees dated 8-12-2000 and 17-6-2004 passed by learned Civil Judge and learned Additional District Judge, Sheikhupura respectively granting preliminary decree in favour of the respondents in their suit for possession through partition.

2. Learned counsel for the petitioners submitted that respondents were not co-sharers in Khata No.1414 of the suit-land. It was alleged in the plaint that they had been dispossessed from the suit-land from which date suit was badly barred by time. The suit was filed against some of the dead persons. The original sale-deed was not produced and no permission for production of secondary evidence had been obtained, therefore, findings could not be based on such evidence as was inadmissible. The impugned judgments, therefore, were liable to be set aside.

3. The petition was opposed by the learned counsel for the respondents.

4. After carefully going through the record I find that findings of the learned courts below are based on revenue record and judgments of competent courts which had attained finality during previous litigation, therefore, respondents were proved to be co-sharers. Reference could not be made to any specific part of the evidence from which it may be inferred that the evidence was not properly appreciated or the same was misconstrued in any manner. When the execution of title deed is not denied by the executant and particularly when its validity is admitted in previous litigation, the parties shall be estopped to deny the genuineness of the same subsequently. On the Lasis of these considerations the title deed in favour of respondents was held to be valid and genuine.

5. Learned counsel for the petitioners was inquired as to whether any objection has been raised with regard to filing of suit against dead persons or could he establish this fact from the documents annexed by him on the record, learned counsel for the petitioners could refer to none. It appears that this plea is afterthought which is not substantiated by evidence, hence, cannot be considered.

6. The respondents were proved to be co-sharers, therefore, authorities relied upon by them reported in PLD 1965 (WP) Kar. 592 (Khowja Mawji v. Mst. Khatubai and others) had no application to this case.

7. It is settled law that possession of one co-sharer is deemed to be possession of other co-owners and the position shall remain unchanged even if one co-sharer is ousted by the other from any specific number because his possession even in such event, can never be taken to have been extinguished or possession of the persons ousting the other co-sharer from possession cannot be tread as adverse to one who was ousted.

8. For what has been discussed above, this petition is held to be without any force, hence, is dismissed. H.B.T./G-79/L Petition dismissed.