1989 PLP 4194 (MLD)

Hassan Ahmad Khan Kanwar for Respondents Nos. 1 and

2. Nemo for Respondents Nos. 3 to

18. Date of hearing: 5th April, 1989. This Civil Revision has been maintained to assail a preliminary decree for partition of two houses passed by the trial Court on 25‑7‑1985 and upheld in the appeal below on 19‑4‑1988; on the main ground that Muhammad Bakhsh the deceased father of the petitioner had left three houses respectively occupied by his three sons as one house each due to partition between them resulting from family‑settlement and, if ever, all three houses were liable to be included in the claim for partition as the joint properties devolved through inheritance but the plaintiff had omitted to include one house in his own occupation in the claim for partition and when his attention was drawn to this omission in the course of his statement made in the suit; he explicitly refused to include that house in the plaint and wrongly asserted it to have been gifted to him by the father despite the fact that he had, in his life time, given one house to each of the three sons for their beneficial use by way of family settlement which the plaintiff was out to misconstrue as gift in his favour with regard to that third house and the suit was hence liable to be dismissed on the authority of cases Qadir Bakhsh and 9 others v. Member, Board of Revenue (Consolidation), Punjab and 28 others (P L D 1973 Notes 13) and Kefatulla Sikdar and others v. Kurban Sk. Minor and others (1971 DLC 366).

2. The foregoing contention is controverted by the opposing learned counsel on the basis of the gift‑deed (Ex.P.1) dated 1‑3‑1948 which had even been challenged by the defendants earlier on identical pleas but their suit was dismissed vide judgment (Ex.P.2) dated 9‑6‑1983 by upholding the gift made in favour of the plaintiff and they did not anywise contest the finding but acquiesced in it wherefore finality gets attached to it.

3. It is conceded for the defendant‑petitioner that despite the order of remand passed on 12‑3‑1984 in the first appeal, during the earlier round, filed in the present suit; for the said decree dated 9‑6‑1983 being considered to decide the dispute afresh, no challenge was thrown to that order. It is obvious that exclusive title in that house held therein to be vesting in the plaintiff as being its sole owner is not disputable now and it has rightly been held that suit with regard to partition of the other two houses which had been left behind by the father Muhammad Bakhsh is in order. The precedents cited by the learned counsel for the petitioner are only inapt in the facts found above. Even otherwise, the rule leaning against the claims of partial‑partition does not seem tenable in view of the law laid down in Muhammad Latif v. Muhammad Hafiz and others (P L D 1954 FC 184).

4. The decrees passed by the two Courts below are not open to any valid exception and there does not exist any case for interference in exercise of revisional jurisdiction. The revision petition is, therefore, dismissed but the parties, being closely related intere se, are left to bear their own costs. H.B.T./M‑1447/L Revision dismissed,