2006 PLP 193 (MLD)

MAULVI ANWARUL HAQ, J.

On 11-3-1990 the respondents filed a suit against the petitioners. In the plaint, it was stated that the lands mentioned in the plaint under the head and were joint. In the year 1972 a, private partition took place and possession was delivered inter se. According to the plaint, the land in fell to the share of the respondents while land in went to the petitioners. A declaration was sought accordingly. The respondents denied the said allegations. It was particularly stated that Khasra Nos.22/6/2, 6/3 (hereinafter to be referred to as the disputed land) is their exclusive property and was never joint. Inter alia, following Issue No.6 was framed with reference to the said specific plea:-- "

6. Whether the Khasra Nos.22/6/2, 6/3 is in possession of defendants? OPD." Evidence of the parties was recorded. The learned trial Court dismissed the suit of the respondents vide judgment and decree dated 5-6-1994. A first appeal filed by the respondents was heard by a learned ADJ, Multan. He allowed the same and decreed the suit vide judgment and decree dated 19-10-1994. Regarding Issue No.6, it was observed that since finding has been recorded by the learned trial Court against the petitioners and a cross-appeal or cross-objection has not been filed, the same is upheld.

2. Learned counsel for the petitioners contends that his clients had the right to support the decree by attacking the point decided against them and for this reason, there was no need for filing of an appeal or a cross-objection. According to the learned counsel, the learned Courts below failed to read the evidence on the record while deciding the said Issue No.6 against the petitioners. The respondents were issued notices through a Process Server as well as registered post. They have refused to accept service. They are accordingly proceeded against ex parte as no one has turned up despite several calls.

3. I have gone through the copies of the records. It will be noted that the only point being agitated by the learned counsel is that the said land, subject-matter of Issue No.6, was the exclusive land of the petitioners and never formed part of the joint Khata of the parties and as such there was no question of its private partition between the parties.

4. Now I find that according to copy of Register Haqdaran Zamin for the year 1986-87 (Exh.P.4) as well as (Exh.D.1), the said land is recorded to be exclusively owned by the respondent-party along with Mst. Tahira Kabeer and Central Government (pages 92, and 93 of the paper book refers as it is a voluminous document). In any case the petitioners do not find any mention at all in the ownership column. This being so, there was no question of any private partition for the simple reason that the condition precedent for a partition whether through a Court or private is the existence of joint land. The petitioners having no share in the said land, there was no question of its partition being effected privately or otherwise.

5. Having, thus, examined the record civil revision is partly allowed inasmuch as the judgments and decrees passed by the learned Additional District Judge is modified and inasmuch as the suit of the respondents is decreed to the extent of entire suit-land mentioned in the plaint except the land comprising Khasra No.22/6/2, 6/3 measuring four Kanals, eight Marlas at Chah Phauloowala, Tehsil Multan. Regarding this land, the suit is dismissed. No orders as to costs. Office to prepare the decree-sheet accordingly.

6. A copy of this judgment be immediately remitted to the learned District Judge, Multan. H.B.T./N-80/L???????????????????????????????????????????????????????????????????????????????????? Order accordingly.