2004 PLP 1844 (MLD)

The brief facts out of which present revision petition arises are that the petitioner filed a suit for permanent injunction on 23-9-1987 in the Court of Civil Judge 1st Class, Sialkot. The contents of plaint reveal that the area measuring 2 Kanals, 14 Marlas falling in Khewat Nos.1253, 1587, Khatoni No.1976, Khasra No.385, according to Register, Haqdaran Zamin for the year 1968-69, situated at MauzaMianapura, Sialkot, is jointly owned by the petitioner-plaintiffs, respondents-defendants and other co-sharers in which respondents-defendants have 1/8th share, they have also made constructions over their own shares and now Plot 13/14 Marlas is laying vacant, which comes in the share of the petitioner-plaintiff. The contents of plaint further reveal that the respondents-defendants have bent upon to dispose of Khasra No.385 and for that purpose the respondents-defendants have made agreement to sell and wanted to execute the sale-deed in favour of the vendee. The respondents defendants have also made constructions on their shares, therefore, they have no right to dispose of any of portion of the disputed property, if they will do so, they will do in excess of their right for which they have no right to do so. The petitioner-plaintiff has claimed in the plaint that according to law, the respondents-defendants cannot dispose of specific portion of joint property till the partition, so the petitioner-plaintiff asked the respondents-defendants not to do illegal act, but they have refused to do so. The respondents-defendants Nos.l and 7 to 10 contested the suit by filing of written statement andcontroverted the allegations levelled in the plaint. Out of pleadings of parties, the learned trial Court framed the following issues: ISSUES: (1) Whether the suit is not maintaivable in its present form? If so, its effect? OPD (2) Whether the suit is incomplete, if so, whether the suit is liable to be dismissed? OPD. (3) Whether the suit is bad for misjoinder of parties, if so, its effect? OPD. (4) Whether the plaintiff has not approached to the Court with clean hands? OPD (5) Whether no site plan attached with the plaint? If so, whether the suit is not maintainable? OPD (6) Whether the plaintiff is estopped to file the present suit? OPD (7) Whether the suit property was partitioned and the plaintiff has already constructed a market, if so, whether the plaintiff is not the owner of the land? OPD (8) Whether the defendants have already raised constructions over the land, if so, whether they have no right to raise constructions over the land excess to their share? OPP (9) Whether the suit property is yet to be partitioned? OPP (10) Whether the plaintiff is entitled to a decree as prayed for? OPP (11) Relief. The learned trial Court decreed the suit vide judgment and decree dated 16-6-1994. The respondents-defendants being aggrieved filed an appeal before the learned District Judge, Sialkot, who accepted the same vide impugned judgment and decree dated 11-1-1999. The petitioner being aggrieved filed this revision petition.

2. The learned counsel of the petitioner submits that judgment of both the Courts below are at variance. He further submits that First Appellate Court has non-suited the petitioner on technical grounds, which are not sustainable in the eye of law. The suit of the petitioner was competent which was held by the learned trial Court and subsequently wrongly reversed by the First Appellate Court. He further submits that the First Appellate Court was justified to decree the suit of the petitioneron the ground that names of all the co-sharers, are available in the record, but the First Appellate Court has wrongly reversed the findings without application of mind. He further submits that the petitioner was non-suited on the ground that the petitioner has not specifically mentioned his specific share in the contents of the plaint. He further submits that the impugned judgment of First Appellate Court is not in accordance with law laid down by the Honourable Supreme Court in "Ali Gohar Khan v. Sher Ayaz and others" (1989 SCMR 130).

3. The learned counsel of the respondents did not enter appearance, despite notice and repeated calls, even his name is mentioned in the cause list of today.

4. Respondents Nos.7 to 17 have already engaged Rana Nasrullah Khan, Advocate CC-8038, who also did not enter appearance despite repeated calls. Similarly, said Advocate has also filed power of attorney on behalf of respondent No.1. The remaining respondents did not appear in the Court despite their service. In view of the aforesaid circumstances, ex parte order is passed against the respondents.

5. I have given anxious consideration to the contention of the learned counsel of the petitioner and perused the record.

6. It is better and appropriate to reproduce parties named mentioned in the plaint, paras. Nos.1 and 5 and prayer clause of the plaint to resolve the controversy between the parties: Mere reading of aforesaid contents of the plaint clearly shows that petitioner has not impleaded all the co-sharers as defendants in the suit. Therefore, First Appellate Court was justified to non-suit the petitioner which is in accordance with the law laid down by the Honourable Supreme Court in Khaleeq Ahmad v. Abdul Ghani and others (PLD 1973 SC 214). The relevant observation is as under: "A suit for possession can be brought by all the co-owners jointly. It is open however, to one of them also to sue for possession but he must join the other co-owners as defendants and the decree will be for joint possession and not in favour of the plaintiff only." The First Appellate Court was justified that suit of the petitioner was not maintainable against the other co-sharers except by bringing a suit for partition of joint property as the law laid down by the Division Bench of this Court in Muhammad Shafi's case (1979 CLC 230). The relevant observation is as follows: "There is thus ample authority for the proposition that if a co-sharer has been in exclusive possession of a certain portion of the joint property for a long period, he cannot be dispossessed therefrom by another co-sharer except by bringing a suit for partition of the joint property." The aforesaid judgment of the Division Bench of this Court was considered and approved by the Honourable Supreme Court in Mst. Resham Bibi's case (1999 SCMR 2325). The aforesaid provision of law is also supported by the law laid down in "Munshi and 2 others v. Muhammad Shafi and 30 others" (1966 Law Notes (Lahore) 58). The First Appellate Court has reversed the finding of the trial Court after proper appreciation of evidence on record in First Appeal which is the prerogative of the First Appellate Court to reappraise the evidence as Appellate Court to come to his own conclusion on the basis of evidence adduced before the trial Court by the parties and resultantly he could competently reverse the finding of the trial Court on the question of fact in issues in question. The First Appellate Court has reversed the finding with cogent reasons after reappraisal of the evidence on record as is evident from para. No.8 of the impugned judgment. It is established proposition of law that findings on question of fact or law howsoever, erroneous the same may be recorded by a Court of competent jurisdiction cannot be interfered with by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. Unless such findings suffers from jurisdictional defect, illegality or material irregularity as per principle laid down by the Privy Council in N.S. Venkatagiri Ayyangar andanother v. The Hindu Religious Edowments Board Madras (PLD 1949 Privy Council 26).The aforesaid judgment was considered and followed by this Court in Board of Intermediate and Secondary Education Lahore v. Syed Khalid Mahmood (1985 CLC 657) which is upheld by the Honourable Supreme Court in unreported judgment dated 31-3-1985 passed in C.P. No.1146 of 1984. Learned counsel of the petitioner failed to point out any infirmity or illegality in the impugned judgment and also did not bring the case within the parameters prescribed by the Privy Council in the aforesaid judgment. In view of what has been discussed above, I do not find any infirmity or illegality in the impugned judgment of the First Appellate Court. Therefore, the revision petition has no merit and the same is dismissed with no order as to costs. M.I./A-160/L Revision dismissed.