1997SCMR457 (PLP)

NASIR ASLAM ZAHID, J.‑‑‑In a suit for partition and possession of certain properties in Ganj Mughalpura, Lahore, filed by respondent No.l Mst. Shamim Akhtar, daughter and heir of deceased Mst. Umar Bibi, against other legal heirs of the deceased, petitioner Abdul Sattar filed an application under Order, rule 10, C.P.C. for being joined as a party claiming to be the owner of one of the said properties. By order dated 10‑11‑1993, the trial Court, namely, Civil Judge First Class, Lahore, granted the application holding that petitioner Abdul Sattar was a necessary party to the proceedings respecting the said property. Being aggrieved, plaintiff Mst. Shamim Akhtar filed a revision application under section 115, C.P.C. which has, been allowed by the impugned judgment of the Lahore High Court dated 1‑11‑1995. In this petition challenging the High Court judgment in revision, it has been averred by Mr. Talib H. Rizvi, ASC for the petitioner, that petitioner was a necessary party.

2. Apart from the suit in question, respondent Mst.. Shamim Akhtar had filed several other suits also relating to the properties in question. According to Mst. Sharnim Akhtar, previously Moula Bakhsh was the owner of the properties in dispute and he died in the year 1968 and the properties devolved upon his heirs including Mst. Umar Bibi who was receiving the rent of the properties in question. Mst. Umar Bibi died in 1983 leaving behind plaintiff Mst. Shamim Akhtar and other dependents (excluding petitioner Abdul Sattar) as her legal heirs and, according to Mst. Sharnim Akhtar, the legal heirs of Mst. Umar Bibi became the sole owners of the properties in question. However, according to Mst. Sharnim Akhtar, after the death of Mst. Umar Bibi, Abdul Sattar, brother -in‑law of the plaintiff, claimed to be the sole owner of the property bearing No. l I on which the plaintiff had to file other suits for cancellation of documents and other reliefs. At the time, the suit for partition and possession filed by the plaintiff against other legal heirs was also pending, which was consigned to record by the trial Court. The case of petitioner Abdul Sattar has been that after the death of Moula Bakhsh his other legal heirs executed waiver deeds to favour of Mst. Umar Bibi who executed sale‑deed in favour of Abdul Sattar. The suits filed by Mst. Shamim Akhtar were consolidated and, before the Civil Judge, petitioner Abdul Sattar made an offer to Mst. Shamim Akhtar to take a special oath inter alia to the effect that,house No. 11 had not been sold by Mst. Umar Bibi to Abdul Sattar. On 14‑3‑1989, special oath on Holy Qur'an as suggested by petitioner Abdul Sattar was taken by Mst. Sharnim Akhtar in the presence of the parties with which oath according to the Civil Judge, petitioner Abdul Sattar was satisfied. Pursuant to the offer made by Abdul Sattar and the special oath taken by Mst. Sharnim Akhtar, one of the suits filed by Mst. Shamim Akhtar was decreed inter alia to the effect that the sale‑deed allegedly executed by Mst. Umar Bibi in favour of petitioner Abdul Sattar was illegal and void and did not affect Mst. Sharnim Akhtar's rights. The trial Court by the judgment dated 14‑3‑1989 also held that other suits filed by Mst. Shamim Akhtar against Abdul Sattar had, therefore, become infructuous. Mr. Talib H. Rizivi learned counsel appearing for petitioner Abdul Sattar, has admitted before us that the said judgment of the trial Court dated 14‑3‑1989 was not challenged in appeal/revision by Abdul Sattar and that the same had attained finality. The suit for partition and possession filed by Mst. Shamim Akhtar against other legal heirs then proceeded and, as observed, the application under Order 1, Rule 10, C.P.C. filed by petitioner Abdul Sattar to be joined as a party in the said suit, inter alia relating to the property previously claimed by Abdul Sattar, was allowed by the Civil Judge but then the order of the Civil Judge was set aside by the High Court in revision. The High Court has held that, by judgment dated 14‑3‑1989, the sale‑deed in favour of Abdul Sattar alleged to have been executed by deceased Mst. Umar Bibi had been declared to be illegal and void and as such he could not claim any interest in the said property and, by the impugned judgment, the High Court dismissed petitioner's application for being joined as a party to the suit for partition and possession of the properties in question.

3. We find do merit in this petition seeking leave from the judgment of the High Court. The sale‑deed on the basis of which petitioner claimed ownership of the property and, as a consequence, wanted to become party to the suit for partition and possession was declared to be illegal and void by the decree of the trial Court on the basis of special oath taken by plaintiff Mst. Shamim Akhtar with which the petitioner was satisfied and against which he did not file any appeal or revision. He could no longer claim to be the owner of the said property on the basis of the said sale‑deed. It has also been noted that, in the application under Order 1, Rule 10, C.P.C., petitioner suppressed the facts about the previous litigation, special oath taken by Mst. Shamim Akthar on the suggestion of the petitioner and the said decree passed by the Civil Judge.

4. No ground for interference is made out the petition is rejected and leave is refused. A.A./A‑1417/S Leave refused.