P L D 1973 Lahore 455 (PLP)

2. The facts of the case are that the plaintiffs filed a suit to the effect that they are cc‑sharers to the extent of 393/ICOgth share of a joint property, which they inherited from their ascendants along with the defendants. The suit was resisted on behalf of defendants 1 to 4 and 14 on the ground that there was a private partition relating to this land between the ancestors and in any case they were in adverse possession of the land beyond 12 years. The learned trial Court on the pleadings of the parties framed the following issues :‑ (1) Whether there was any private partition relating to the suit land? If so whether the same fell to the share of the ancestors of the defendants ? (2) Whether it was necessary to include the land situate at Mauza Jhangi Tajo? If so, what Is its effect on the present suit ? (3) Whether the suit is within time? (4) What is the share of the plaintiffs in the suit land? (5) Whether the defendants have become owners of the suit land due to their adverse possession for a period of snore than 12 years over the suit land? (6) Relief. After recording the evidence the suit was decreed. The defendants‑appellants went in appeal which was dismissed by the learned Additional District Judge. Hence this second appeal.

3. Both the Courts below after taking into consideration the entire evidence on the record have come to a concurrent finding of fact that there was no partition between the ancestors of the parties. This was the only issue which was argued before the to after appellate Court. Raja Abdul Razzaq learned counsel for the appellants despite his best efforts has not been able to show any misreading of documents for discarding of any evidence from consideration by the two Courts below. The concurrent finding of fact, therefore, is binding on this Court and it cannot be interfered with in second appeal.

4. It was next argued that the suit was not maintainable. No issue was framed on this question by the trial Court and there is no finding either by the trial Court or the lower appellate Court on this point. If the appellants had any grievance they should have challenged the framing of issues in the exercise of revisional jurisdiction of this Court under section 115, C. P. C. on the question of maintainability of the suit in the present form. Learned counsel for the appellants has cited Durga Nath Tarafdar and others v. Debandra Nath Tarafdar and others (P L D 1951 Dacca 89) in which Watson & Company v. Ramchand Dutt and others (17 I A 110) has been considered and relied upon. He has also invited my attention to a judgment of the Peshawar Bench of the former West Pakistan High Court reported as Haji Khan Muhammad and others v. Yaqub Khan and others (P L D 1956 Pesh. 96) and two judgments of the Dacca High Court Abdul Gani Talakdar v. Rushan and others (P L D 1960 Dacca 359) and Ahmad Miaji and others v. Eakub Ali Munshi and others (P L D 1961 Dacca 259). It was vehemently argued that a decree for joint possession could not be granted where the plaintiffs wanted to interfere with the possession of one party. This is not the relief claimed in the instant case. The declaration asked for is a declaration of joint ownership with possession. It would of course be a symbolic possession and not physical one, for, for that purpose the plaintiffs have to ask for partition of the property.

5. Raja Said Akbar learned counsel for the respondents has cited Manji and others v. Ghulam Muhammad and others (I L R 2 Lah. 73) in which Watson & Co. v. Ramchand Dutt and others was distinguished by a Division Bench. Another Single Bench judgment of the Lahore High Court reported as Pir Muhammad and others v. Ghulam and others (A I R 1925 Lah. 369) was also referred. The obvious distinction, therefore, drawn by Sir Shadi Lai, C. J. in Manji and others v. Ghulam Muhammad and others is the main distinguishing feature of the case before me, which is to the effect that a decree can be passed in favour of the plaintiffs for joint possession but no decree for ejectment can be passed for enforcement of the joint possession, for, the plaintiffs in this case do not ask for actual share by way of physical possession of the area which falls to their share.

6. In this view of the matter the appeal cannot succeed which has to be thrown out. It is ordered accordingly. Parties are left to bear their own costs. S. A. H. Appeal dismissed.