1995 PLP R154 (SCMR)

FAZAL ILAHI KHAN, J.‑‑‑Leave to appeal is prayed for against the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 19‑5‑1993 in Civil Revision No. 159 of 1992. , The petitioner/plaintiff brought the present suit for declaration that she was the owner in possession of the property bearing No. B.IX.15‑S‑53 measuring 2 Marlas 66 Sq.Ft. situated in urban area and that the gift deed dated 21‑10‑1984 allegedly made by respondent No. 1 and Shaukat Ali predecessor‑in‑interest of respondents Nos. 2 to 5, in favour of respondent No.6 was fictitious and ineffective on her rights. It was alleged in the plaint that the petitioner, Muhammad Ali respondent No. 1 and Shaukat Ali predecessor‑in‑interest of respondents Nos.2 to 5 are sister and brothers inter se and are the heirs of Shaikh Amjad Ali who died about 28 years before filing of the present suit. That out of the property left by their father the suit property fell to the share of the plaintiff /petitioner in private partition and since then she is in continuous exclusive possession of it as full owner. The suit was contested by the respondents and ultimately dismissed by the trial Court on 31‑7‑1989. The appeal and revision petition against the judgment and decree of the trial Court were also dismissed by the learned Additional District Judge and the learned High Court vide orders dated 12‑2‑1992 and 19‑5‑1993, respectively. Leave to appeal is prayed for against the judgment of the High Court. It was contended by the learned counsel for the petitioner that respondents have admitted that Rs.31 per mensem is received by the petitioner as her share and Rs.39 per mensem by Shabbir Ali son of Akbar Ali respondent No. 6 which clearly supported her entitlement but the learned High Court misread and misconstrued the same. We find no substance in the contention of the learned counsel. Admittedly on the death of Sh. Amjad Ali his property devolved on his heirs; namely, Mst. Jameela Begum daughter, Muhammad Ali and Shaukat Ali his sons as his legal heirs. When Shaukat Ali died his share in the property was inherited by Mst. Sauria Begum widow, Mst. Nighat Parveen and Mst. Kausar Parveen daughters and Riaz Shaukat his son. No documentary and reliable oral evidence has been led to prove that private partition amongst the legal heirs ever took place and that the suit property entirely fell to the share of the petitioner and respondent No.

6. The fact that petitioner and respondent No. 6 have been receiving Rs.21 and Rs.39 per mensem respectively, as rent of the suit property would not advance the petitioner's case as held concurrently by all the three Courts below. There is no infirmity in the judgment of the learned High Court therefore, this petition for leave to appeal is dismissed. ' AA./J‑113/S Appeal dismissed.