2003 PLP 362 (YLR)

Bashir Ahmad and two others (respondents in the civil revision) had filed a suit against Abdul Ghaffar (petitioner in civil revision) for partition of Property No. 82, present 189/1, measuring 6 Marlas 3 Sarsahi situated in Chak No. 439/EB, Tehsil Burewala,

2. Precisely their case was that they are owners of 1/2 share i.e. 3 Kanals 1‑1/2 Sarsahi in the suit property by virtue of registered sale‑deed, dated 20‑12‑1990, (Exh. P.1) whereas defendant was the owner of the remaining one‑half share but at the spot they are in possession of 2 Marlas 1‑1/2 Sarsahi whereas defendant is in possession of 4 Marlas 1‑1/2 Sarsahi i.e. 1 Marla over and above his entitlement. Prayer in the said suit was for partition of the said joint property, by metes and bounds according to the shares of the parties.

3. The suit was contested by the defendant who in his written statement did not deny half share of the plaintiffs but resisted the partition by metes and bounds on the ground that the private partition had already been effected between the previous owners through partition deed Exh. D.1, the plaintiffs being successor‑in‑interest of the vendor Hakim Ali (previous owner) were bound by that private partition and their suit was, therefore, not competent.

4. On the pleadings of the parties issues were framed, evidence was recorded and ultimately vide judgment, dated 20‑10‑2000 a preliminary decree for partition was passed by the learned trial Court in favour of the plaintiffs.

5. Defendant's appeal against that preliminary decree was dismissed by Additional District Judge, Burewala on 4‑6‑2002. Both the aforesaid judgments and decrees are assailed in the civil revision by the defendant.

6. Petition is opposed by the learned counsel for the respondents. Arguments heard, revision petition and the Annexures appended therewith perused.

7. At the very outset it may be observed that learned counsel for the petitioner has assailed the findings of the Courts below only on Issues Nos. 1 and 3; finding of trial Court on the rest of the issues were not pressed before the Appellate Court nor they are challenged before this Court.

8. Issues Nos. 1 and 3 are reproduced as under:- Whether the plaintiffs are estopped by their conduct and act to file this suit against the defendant? Whether the plaintiffs are entitled to the decree for possession through partition of the land in accordance with averments of the plaint?

9. Learned counsel for the petitioner argued that on Issues Nos. 1 and 3 findings of both the Courts below are erroneous because while deciding these issues, both the Courts were unmindful that under Article 114 of Qanun‑e‑Shahadat Order, 1984 the respondents were estopped to claim partition because from partition deed Exh. D.1, it stood proved that a private partition of the joint property had already taken place between the previous owners Hakim Ali and Mal Din and respondents being successors- in‑interest of Hakim Ali were bound by that arrangement and were thus estopped to claim partition.

10. I am not inclined to agree with the above contention for the reasons that a perusal of the impugned judgments reveals that while dealing with Issue No.1, both the Courts below were mindful of the said legal objection raised by the petitioner and their finding that actual partition between the previous owners was not proved, is based ors evidence and sound reasoning after having examined and assessed the evidence available on record. From a perusal of the evidence authenticity of partition deed was not proved. It was an unregistered agreement of partition it was not established that it was ever acted upon or given effect to. Being an unregistered document, it did not operate to create any right or title. Apart from that respondents were admittedly not a party to that agreement Exh. D.1, hence they were not bound by it. At the most the said document could be deemed as an agreement regarding family arrangement or private settlement but certainly not a deed of partition. It is worth notice that in the written statement, half share of the plaintiffs in the joint property was not denied and during his cross‑examination the petitioner (defendant in the suit) admitted that Hiba made in his favour in respect of the joint property was in respect of 3 Marlas and 1‑1/2 sarsahi (i.e. half share). Since he himself admits that half share in the suit property was gifted to him he has no right to retain possession of more than that. It is well‑settled that Hissadari possession by way of family settlement does not amount to ultimate partition.

11. For the foregoing reasons, concurrent findings of the two Courts below on Issues Nos. 1 and 3 which were recorded after examining and assessing the evidence, which are based on sound and plausible reasoning cannot be disturbed in revisional jurisdiction. Petition dismissed. S.A.K./A‑660/L Petition dismissed