2005 PLP 3015 (YLR)

Pursuant to the order, dated 7-10-2004 passed by this Court, the respondent entered appearance through her learned counsel. After hearing the parties at some length, this case with the consent is admitted to regular hearing. The learned counsels for the parties are prepared to address arguments. Let the civil revision be taken up today.

2. The respondent filed a suit for declaration and injunction claiming ownership of the property in dispute and the documents representing exchange (Exhs.D.1 and D.2) are liable to be cancelled. The petitioners entered appearance, filed written statement. Parties produced their respective evidence.

3. I have heard the learned counsel for the parties and peruse the record with their able assistance.

4. Abdul Ghaffar appeared as P.W.1. He is special attorney of the plaintiff. He stated that Hafiz Ghulam Rasul was owner of the disputed property. He had two daughters namely Mst. Sharam Hazoor and Mst. Azmat Bibi. She was married by Hafiz Ghulam Rasul in his life-time. On death, his widow Rehmat Noor re-married Abdul Razzaq. The plaintiff was minor at the time of the death of her father Hafiz Ghulam Rasool. Rehmat Noor was in occupation of the disputed premises along with the plaintiff. She started living in the said property with permission of the plaintiff. In the year 1989 the parties agreed to exchange their properties as mentioned in written agreements. The agreement was not performed and was cancelled. In cross-examination, she denied the execution of two agreements. She did not produce any other witness in the witness-box. On the contrary, Abdul Majid appeared as D.W.1. He stated that the agreement Exh. D.1 and Exh.D.2 were marginally witnessed by him. The plaintiff had transferred the property in favour of the defendants. D.W.3 Allah Bakhsh has also witnessed the agreements Exh.D.1. and Exh.D.2. Abdul Razaq, D.W.4, one of the defendant-petitioners No.2 examined himself. He stated that in obedience to the agreement Exh.D.1, and Exh.D.2 the respondent/ plaintiff was given the possession of the property detailed in the agreements. She in exchange also transferred and delivered the possession of property. Exchange was not cancelled. In cross-examination, he conceded that he claims ownership in the house on the basis of EXh.D.I and Exh. D.2 no sale-deed or mutation was attested on the strength of these documents. He did not file any suit.

5. Exh. D.1 and Exh. D.2 are agreements allegedly executed by Mst. Azmat Bibi in favour of her real mother, respondent No.

1. Agreeing transfer of the disputed premises in favour of her mother against agricultural land given in exchange. Exh.D.2 is another agreement executed by Mst. Azmat Bibi plaintiff transferring her share in the house and domestic articles in favour of Abdul Razzaq and in exchange receiving share from Abdul Razzaq.

6. Admittedly, agreement Exh.D.1 and Exh.D.2, conferred no title on the petitioner-defendant. The same were rightly adjudged to be of no avail by both the learned Courts below. The findings recorded by the learned Courts below to this extent, thus, does not call' for interference.

7. The property in dispute was owned by Hafiz Ghulam Rasul. He transferred the same by way of gift through Mutation No.64 to the extent of 1/4th share infavour of his wife while 3/4th share was transferred in equal share of 318th each to Mst. Azamat Bibi (plaintiff) and Sharam Hazoor. There is no evidence of partition of the property in dispute. Exclusive decree for possession, as consequential relief, thus could not have been passed in favour of the respondent/plaintiff. She is co-sharer to the extent of 3/8th shares in the house. The decree for exclusive possession cannot be granted. She will be deemed to be in joint possession of the property in dispute. She is however in peaceful possession of the property. She can maintain her possession over the property in dispute till it is, partitioned by metes and bounds.

8. For what has been discussed above, this civil revision is disposed of by affirming the judgments and decrees passed by the learned Courts below except with the modification that the plaintiff shall be deemed to be in joint possession of the disputed property to the extent of 3/8 share. Judgments and decrees passed to the extent of exclusive possession are set aside. H.B.T./A-552/L Order accordingly.