2007 PLP 2645 (YLR)

MUHAMMAD RAZA KHAN, J,

A civil suit was instituted for declaration to the effect that the house, described in the head-note of the plaint, belonged to the plaintiff and that the defendants be restrained through perpetual injunction to interfere therewith. There was a prayer, in alternative, for possession. The claim was based on the sole ground that. the house, in question along with other houses and shops were owned by Haji Muhammad Ayaz Khan, the predecessor of the parties and that as a result, of private partition, the suit house was allocated to the plaintiff but the defendants were interfering therein. The defendants contested the suit alleging that the suit house was given to the defendants during the private .partition and that they were in possession thereof and had made improvements therein. After recording evidence, the learned Senior Civil Judge, Lakki Marwat, vide. his judgment and decree dated 5-6-2002, dismissed the suit wherein it was held that the plaintiff has failed to establish that the suit house was his exclusive ownership. An appeal was .filed and during the pendency of the appeal, an application for the withdrawal of the suit with permission to file a fresh one was A moved whereby the plaintiff-appellant wanted to file a suit for partition of the entire joint property, between the legal heirs of Haji Muhammad Ayaz Khan. This petition was resisted and vide an order dated 12-6-2003, the learned District Judge, Lakki Marwat rejected the said petition on the ground that the .application was inconsistent with the stand taken by him in the plaint: This order has been challenged in a revision petition in this Court. During the pendency of the revision petition, the learned District Judge dismissed the appeal of the plaintiff-appellant on 7-7-2003. So, the earlier revision petition was withdrawn and the present revision petition was filed. A miscellaneous petition was again moved for the withdrawal of suit with permission to file a fresh one. The said C.M. as well as the -civil revision came up for hearing today.

2. The learned counsel for the respondents resisted the petition for withdrawal as well as the civil revision on the ground that the petition did not indicate the formal defect which was required as a pre-condition for the withdrawal of the suit and since both the Courts have concurrently non-suited the plaintiff-petitioner, therefore a new round of litigation shall not be fair and just.

3. The new round of litigation is a must. The private partition alleged by both the parties has not been believed by the Courts. Therefore, the title of both the parties to the portion allocated to them shall become controversial and even the other brothers and sisters who would have been put in possession of certain property, even their title and possession is disputed by the findings in this case. The plea of the petitioner for the withdrawal of the suit may be inconsistent with his pleadings but such plea is consistent with the findings of both the Courts. The pleadings, therefore, become immaterial when the Court had made certain observations contrary to the pleadings because thereby the parties have to follow the ruling of the Court. Both the parties had claimed their title on the basis of private partition but the same has not been approved by the Court. The petitioner has challenged the observations in appeal as well as in revision but the position of the defendants-respondents .shall be more serious because the observation of the learned trial Court against the defendants B has not been. challenged by way of appeal or cross-objections. If the plea of partition is not approved, it does not deprive the parties of their claim in the joint ancestral property. The parties have a right to file an independent partition proceedings, and in view of the joint possession of the co-owners, the objection of limitation cannot be taken. Therefore, a suit of partition was not barred even if the present proceedings were withdrawn unconditionally but by way of abundant caution, the plaintiff-petitioner has chosen to ask for permission and this request has a considerable force. In the cases where private partition is alleged but not accepted by the Court, the entire private partition is nullified and the matter has to be referred back for a final partition, where the entire property and all the legal heirs of the predecessor have to be impleaded for the effective and conclusive partition proceedings.

4. C.M. No.115 of 2003 is accepted and the petitioner is allowed to withdraw the proceedings, commenced through his civil suit, with permission to file a fresh suit for partition for the entire joint property by impleading all the legal heirs of their predecessor. The civil revision as well as the original civil suit are also dismissed .as withdrawn. No order as to costs. H.B.T./139/P Order accordingly.