2013 PLP 2484 (YLR)

ATIR MAHMOOD, J.

Through this civil revision, the petitioners have impugned the judgment and decree dated 15-5-2009 passed by learned Additional District Judge, Ahmedpur East who accepted the appeal of respondents Nos.1 to 4 and set aside the judgment and decree dated 14-9-2006 passed by learned trial Court whereby the suit for declaration filed by the petitioners was decreed.

2. Brief facts of the case are that the petitioners filed a suit for declaration and permanent injunction regarding the property fully described in the head-note of the plaint with the averment that the petitioners are in possession of the suit property on the basis of family partition, therefore, the respondents be restrained from interfering with their possession. The suit was contested by respondents Nos.1 to 4 and 7 by filing written statements whereas respondents Nos.5 and 9 to 15 filed a conceding statement. Respondents Nos.6 and 8 were proceeded against ex parte. Out of divergent pleadings of the parties, the learned trial Court framed as many as five issues including that of relief. After recording oral as well as documentary evidence adduced by the parties, learned trial Court proceeded to decree the suit of the petitioners-plaintiffs vide judgment and decree dated 14-9-2006. Respondents Nos.1 to 4 feeling dissatisfied filed an appeal which was accepted by the learned lower appellate court and the judgment and decree dated 14-9-2006 passed by learned trial Court was set aside vide judgment and decree dated 15-5-2009 which is under challenge in this civil revision.

3. Learned counsel for the petitioners inter alia contends that there was a family settlement between the parties, in result of which, the suit property was given to the petitioners and the respondents were given the adjacent land. He maintains that the respondents resiled from the settlement, therefore, the instant suit was filed. He avers that the petitioners have successfully proved their case by producing cogent evidence; that the judgment and decree passed by learned trial Court is based on law and fact; that the learned lower appellate court has failed to appreciate the evidence produced by the petitioners and dismissed their suit without any lawful justification. He prays that this civil revision be allowed, the impugned judgment and decree be set aside and the judgment and decree passed by learned trial Court be restored.

4. Conversely, learned counsel for the respondents Nos.1 to 4 and 7 submits that no family partition took place; that no documentary evidence, in support of their version that there was a family settlement, could be produced by the petitioners; that only two witnesses were produced out of one was the plaintiff himself whereas the other witness who appeared as P.W.2 does not state anywhere that there was a family partition but that the possession lies with the petitioners-plaintiffs; that the possession of the petitioners over the dispute land was challenged before the Revenue authorities which matter has already been decided by the District Officer (Revenue) in favour of the respondents and now the matter is pending before the Member Board of Revenue. He avers that there is nothing on record to show that there was any family settlement with regard to the suit property, therefore, this civil revision merits dismissal.

5. I have heard the arguments advanced by learned counsel for the parties and also perused the record with their able assistance.

6. It is admitted fact that the parties being successors of Kanwar Khawaja Zajar Ali Khan are inter se related and joint owners in the suit property regarding which the petitioners filed the suit for declaration and permanent injunction asserting their independent rights on the basis of a family settlement/partition.

7. The scanning of record shows that the petitioners have not been able to establish that there was any family partition between the parties through convincing evidence. Mere possession of the petitioners over the suit-land is not sufficient to prove the alleged family partition which is also under challenge before the revenue authorities. Since the alleged family partition was oral, the onus probandi lies heavily over the petitioners. The only witness, produced by the petitioners-plaintiffs, who can be presumed independent is P.W.2 Muhammad Nawaz who admits in his cross-examination that neither family partition took place in his presence nor he knows about 'numbers' given to the petitioners pursuant to the family partition meaning thereby he does not know about the alleged family partition. In the circumstances, the petitioners have badly failed to prove their case.

8. Another aspect of the matter is that the jurisdiction of the civil court in the cases of family partition is barred by section 172(2)(xviii) of the Land Revenue Act, 1967 which is reproduced below:-- "(2) a Civil Court shall not exercise jurisdiction over any of the following matters namely:

(xviii) any claim for partition of an estate or holding, or any question connected with or arising out of, proceedings for partition, not being a question as to title in any of the property of which partition is sought:"

9. Learned counsel for the petitioners has also failed to point out any illegality, infirmity or misreading/non-reading of evidence in the impugned judgment calling for interference by this Court.

10. For the aforementioned reasons, this revision petition has no force, hence dismissed leaving the parties to bear their own costs. SAK/M-197/L Revision dismissed.