1999 PLP 340 (YLR)

The present revision petition has arisen out of a suit for partition filed by the petitioners with regard to Khasra No.512, Khewat No.326/711, measuring 4 Kanals, 8 Marlas, situate in Mirpur Hussain, Tehsil and District Attock, claiming 9-1/2 Marlas as their share of the aforesaid property. Besides, they also claimed one-half share in the havely constructed on 18 Marlas of land bearing Khasra Nos.626 and 627, Khewat No.326/310/309, situate in the same mauza.

2. This suit was resisted by the respondents. Written statement was filed by them, who claimed that the suit land was not jointly owned between the parties and have been privately partitioned through a family arrangement.

3. Issues were framed, evidence was led and the Trial Court on 7-9-1995 passed a preliminary decree for partition in favour of the petitioners and against the respondents.

4. In appeal filed by the respondents the judgment and decree of the Trial Court were reversed on 7-9-1997. The view taken by the Appellate Court is that the evidence on record duly establishes a private partition, between the parties regarding suit properties, which are partitioned on account of a family arrangement. Moreover, the petitioner, namely, Qayyum Khan, while appearing as P.W.2 has admitted the above fact. Besides, the Trial Court has also observed in his judgment that private partition did take place between the parties but because no written document is brought on record he did not accept this private arrangement.

5. Learned counsel appearing on behalf of the petitioner has very candidly conceded that the partition with regard to the haveil was made through the private arrangement and he does not press his case to that extent, but confines it only to Khasra No.512.

6. I am afraid that the submission made by the learned counsel regarding Khasra No.512 is also not well founded particularly, in view of the statement of P.W.2, namely, Qayyum Khan, who in his examination-in -chief has accepted in unequivocal terms, that the land in dispute through family arrangement was partitioned. However, he states that the defendants have raised constructions over the portion falling to their share, whereas the portion measuring 9-1/2 Marlas, which had come to his share was lying vacant and the respondents have taken illegal possession of the said land. As according to him the partition of the properties between the parties has taken place under a private arrangement and, thus, there is no question of any further partition through Courts. If the land falling to his share has been illegally occupied by the respondents or they have sold that to some others the appropriate remedy of the petitioners is not for the re-partition of the property but for claiming possession through a regular suit for possession as the ownership of the partitioned share under the family arrangement qua specific portion.

7. As for partition suit, it is sine qua non, that the properties must be owned jointly by the parties which is missing in this case, therefore, the suit of the petitioners was not competent. Even otherwise the Court in appeal has come to the conclusion that the properties are duly partitioned through a family arrangement which was acted upon, consequently, the view taken by the trial Court that no document has been produced, thus, the partition cannot be accepted is not well-founded. There is no merit in the present revision petition, which is hereby dismissed with no orders as to costs. C.M.S./Q-17/L Revision dismissed.