2003 PLP 884 (MLD)

(1) Whether the disputed property is jointly owned by the parties? OPP. (2) Whether plaintiff is entitled to decree' prayed for in the main suit? OPP. (3) Whether the plaintiff has no cause of action and locus standi? OPP. (4) Whether the present Court has got no jurisdiction to entertain this suit? OPD. (5) Whether the suit has been wrongly valued for the purposes of court-fee and jurisdiction? OPD. (6) Whether the, map is not according to High Court Rules and Orders, if so its effect? OPD. (7) Relief.

5. The parties produced the evidence. Issues Nos. 1 and 2 were decided against the petitioner. Issues Nos.3 and 4 were decided in favour of the respondents. Issues Nos.5 and 6 were found in negative. The learned Civil Judge proceeded to dismiss the suit of the petitioner vide his judgment and decree dated 20-1-1993.

6. Aggrieved by the judgment and decree of the learned trial Court the petitioner preferred an appeal which was also dismissed by the learned Additional District Judge, on 22-7-1996, by observing that. "It has been proved on the record of the trial Court that according to Exh.P.3. Exh.D.1, the statement of A. W.1 Mirza Ghulam Hussain, Exh.D.2, Exh. D.3, and Exh.D.4, the respondents/defendants Nos. 1 to 15 were fully owners of the plot measuring 6 Marlas, 141 sq. ft with specific boundaries, who later on sold the same to the appellant/defendant No.

16. Under these circumstances the appellant/plaintiff could not be able to prove his title, over the suit property at all."

7. The learned counsel for the petitioner contends that the property was not an evacuee property in view of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the same, vest in the Central Government and after the repeal of the Evacuee Law, the property was transferred to Government of Pakistan, therefore, the Civil Court has the jurisdiction to pass the decree for partition. Further contends that the findings of the Courts below that the property is not joint between the parties and the same has also been partitioned, is result of complete misreading of evidence.

8. Conversely, the learned counsel for the respondents contends that the property had been transferred with specific boundaries separately by the Settlement Authorities in favour of the parties. Respondent No. 16 has purchased the same through registered sale-deed a specific boundary. Paramount title of respondent No. 16 acquired through registered sale has not been challenged by the petitioner in the suit, therefore, according to him the suit for possession through partition was not maintainable.

9. According to the transfer deed Exh.P.1 Plot No. 1/71 measuring one Maria and 153 sq. ft. has been transferred in the name of Raja Muhammad Afzal son of Raja Khushi Muhammad which he purchased through open auction and bid was confirmed in his name Exh. P.3 is the site plan signed by the Deputy Settlement Commissioner, Gujrat shows that the petitioner was transferred 35 x 10 sq.ft. of plot with the specific boundaries. Combined reading of site-plan Exh.P.2 and Exh.P.3 would show the separate dimension and portion of petitioner Muhammad Afzal and the respondents Nos.1 to 15, alongwith portion which was claimed by Zulfiqar. Exh. P.7 is the PTD in favour of the petitioner. According to the T. O. Exh. D.2 Plot No. 1/71 measuring 6 Marlas and 141 sq. ft. has been transferred to the respondents. The Deputy Settlement Commissioner vide his order dated 17-4-1978 Exh.D.3 transferred the same in favour of the respondents, who further sold it to the respondent No. 16 on the basis of the registered sale-deed Exh. D.1. The boundaries have been given in the sale-deed dated 22-1-1987 on the basis of the above-stated document, both the Courts were right in saying that the property has been partitioned and the parties are not the joint owners of the suit property. Unity of title and unity of possession is condition precedent for bringing a suit for possession through partition. In the case reported as Syed Mohsin Raza Bukhari and 4 others v. Syeda Azra Zenab Bukhari (1993 CLC 31), it has been held that:-- "It is well-settled that the necessary condition for a suit for partition are; first; that there must be unity of title; and, secondly, there must be unity of possession. Unity of title and unity of possession must exist between the parties impleaded in the suit for partition qua the property sought to be partitioned. If any one impleaded in the suit claims a paramount title in the property, obviously he is negating unity of title and as such the plea falls outside the scope of a partition suit. "

10. There is concurrent finding of fact against the petitioner on the basis of evidence recorded by the competent Court of jurisdiction; which cannot be interfered in exercise of the revisional jurisdiction of this Court under section 115, C.P.C. Resultantly, this civil revision fails and is dismissed with costs. H.B.T./M-1663/L Revision dismissed.