1980 PLP 355 (SCMR)

Bashir Ahmad Ansari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing : 4th December, 1979. MUHAMMAD AFZAL ZULLAH, J.‑Leave to appeal is sought by a defendant in a declaratory suit from a judgment of the Peshawar High Court dated 11th March 1978, whereby his second appeal was dismissed. The respondents' (plaintiffs') plea before the learned trial Judge was that a small piece of open land known commonly as daga, measuring about 8 marlas, surrounded by the houses of the parties was jointly owned by all the parties concerned and "that despite partition of other properties, by their ancestors this small vacant space was allowed to remain in joint ownership and possession for better enjoyment of the residential properties around it." It was further asserted that the parties did use the land jointly for a very long time for the said purpose, but a year before the institution of the suit, the petitioner started claiming exclusive rights therein. Proceedings under section 145, Cr. P. C. commenced which ended in a direction for the resolution of the dispute by a civil Court. The petitioner alone, out of about 70 defendants, contested the suit on various pleas one being that he is the sole owner of the disputed land on account of the original partition during the last century and subsequently through family settlements. Learned trial Judge held that `this site remained un partitioned from generations' and that "it was left over as a joint property for the common use of the owners whose houses surround it". It was also held that a partition of the site would cut it into small bits which will be of no use to either of the parties. Accordingly, the suit was decreed with a declaration that "the suit site is joint property of the parties and it cannot be parti tioned. It will be used for common enjoyment of the parties and none of the parties will make any abadi on it". Realising that there ace concurrent findings of fact on questions of partition and/or ownership ‑exclusive or joint, of the property, learned counsel has tried to assail the same on the plea of misreading of evidence. He has taken us through the statements of the Patwari concerned who prepared the site plan Exh. P. W.1/1, which has also been examined with his assistance. He has also read from copies of some exhibited document relied upon from the petitioner's side in proof of the alleged partition o the site in question. After hearing the learned counsel and perusing these documents also another site plan Exh. P. W. 21, we are satisfied that there was misreading of evidence. The learned High Court was justified in refusing to interfere in second appeal. We accordingly dismiss this petition. Petition dismissed