1989 PLP 2949 (MLD)

2. Defendant's appeal there against was assigned to a learned Additional District Judge who re-appraised the evidence and upon affirming the findings of the trial Court proceeded to dismiss the appeal by his judgment dated 26-1-1986 by upholding the decree of the trial Court. He has now come up to this Court on revision.

3. After candidly conceding that title in the property stands settled in favour of the plaintiffs-respondents up to the Supreme Court, learned counsel has raised the following contentions:-- (i) that the suit in its present form was not competent and should have been . maintained for dissolution or winding up of the partnership; (ii) that, else, the petitioner is a tenant liable -to be ejected in accordance with the law by a Rent Controller and the civil Court did not have any jurisdiction to exercise over him; and, (iii) that the mother of Muhammad Yousaf who was also one of his legal heirs ought to have joined the suit upon his death and her absence renders the suit incompetent. After giving due consideration to these contentions I have not been able to find substance in any of them. The first contention is rendered untenable on the facts concurrently found below to the effect that a portion of the property in dispute was put to use for carrying on partnership-business and did not itself A become a partnership-property so that with the termination of the project of such a business there did not remain any justification for the defendant to remain in possession of the property held by him as a mere licensee. Averments to such an effect made in paras 3 to 5 of the plaint have been denied in the written statement with the further assertion that the power-looms and the factory happen to be the private and exclusive property of the defendant and while reiterating it in para 9 thereof, he went on to specifically assert that there has never been any partnership between him and the plaintiffs so that there did not arise any question of the dissolution thereof. He is precluded from taking up a different stand now and, hence, the contention is repelled. As regards the alleged tenancy and the jurisdiction of the civil Court, there is no evidence with regard to the defendant's tenancy led in the suit and no indication is available about his being a person liable to fall within the purview of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 for the suit property indisputably transferred in favour of the plaintiffs. Actually, the defendant-petitioner does not have even a semblance of right or justification to hold the possession and the suit against him has been rightly entertained and decided by the civil Court under section 9 of the C.P.C. This contention also fails. The third objection with regard to the non-joinder of the mother of Muhammad Yousaf is not tenable either in fact or law. No title is shown to have either vested ever in such a lady or possessed by her at the time of impleadment the legal-representatives where about objection does not seem to have been raised at any time in the Courts below. Section 99 of the C.P.C. forecloses such a plea after the suit has been fought-out on merits which do not get affected with the absence of one or the other person through whom the petitioner does not have to be claiming souse title and muchless may such an absence have affected the jurisdiction of the Court. The contention, even if it were to be found sustainable on facts, would be only inconsequential so far as the petitioner is concerned and cannot entail reversal of the decrees adverse to the petitioner passed below. The same is, therefore, rejected.

4. No other point has been raised for consideration.

5. Result of the foregoing is that the concurrent decrees passed by the two Courts below are justified on the record and no interference is called for in exercise of revisional jurisdiction. Hence, dismissed with costs. M.Y.H./A-664/L Petition dismissed.