' MUHAMMAD MUZAMMAL KHAN, J.---This civil revision assails judgments and decrees dated 4-1- 2003 and 18-10-2003 passed by Civil Judge and Additional District Judge, Gujrat, respectively, whereby lis was decided against the petitioner.
2. Precisely, facts relevant for disposal of this petition are that respondents filed a suit for partition of land measuring 2 Kanals, 2 Marlas situated in village Kalan Khasa, Tehsil and District Gujrat. Land sought to be partitioned bears Khasra No,838 and is claimed to be Shamlat Deh, in form of 'Ghair Mumkin Chhapri'. Respondents asserted in their plaint that in earlier round of litigation they were directed to file a suit for partition by this Court, whereunder they claimed their respective shares to be separated from the petitioners, who have denied joint nature of this property, hence suit by them, as noted above.
3. Petitioners being defendants in the suit controverted the allegations in the plaint and besides raising certain Preliminary objections to the maintainability of the suit, claimed that their earlier suit for permanent injunction was decreed by this Court vide judgment dated 10-4-1993 and thus suit- land which had already been partitioned and fell to their share cannot be further partitioned. They also claimed that suit in its present form was not maintainable. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. Learned trial Judge who was seized of the matter, after doing the needful granted the respondents a decree for partition of abovementioned land vide judgment and decree dated 4-1-2003.
4. Petitioners aggrieved of the decision of the trial Court dated 4-1-2003 filed an appeal before the Additional District Judge, Gujrat, but remained unsuccessful, as their appeal was dismissed vide judgment and decree dated 18-10-2003. They have now come up in revisional jurisdiction of this Court against the two concurrent judgments and decrees and noted above.
5. Learned counsel for the petitioners submits that land subject of suit is a part of Shamlat Deh, which in entirely measurement 105 Kanals, 19 Marlas and was partitioned between the co-sharers decades back. According to him, land bearing Khasra No,838 measuring 2 Kanals, 2 Marlas subject of this litigation fell to their share whereover they are in possession for more than fifty years. He in this manner argues that neither a part of joint holding could be ordered to be partitioned nor after partition of joint holding, its further partition could be ordered and thus asserts that both the Courts below erroneously decreed the suit of the respondents. Learned counsel for the petitioner further contends that suit of the petitioners for permanent injunction was earlier decreed by this Court while deciding Civil Revision No,691-D of 1980 on 10-4-1993, whereunder unauthorized interference by the respondents in exclusive possession of the petitioners, was sought to be restrained.
According to him, in that suit exclusive possession of the petitioners was proved and it was not decided in that case that part in their possession is still joint which in no manner was directed to be partitioned by this Court.
6. Conversely, learned counsel for the respondents urged that land subject of suit was still joint and has correctly been ordered to be partitioned according to shares of the parties concurrently by both the Courts. He besides supporting the judgments of the Courts below, refuted the submission of the petitioners and also urged that 'Wajab-ul-Arz' of the Mouza in question produced by petitioners themselves as Exh.D.1 shows that after partition of Shamlat Deh some part of it, was kept joint for common use of the owners and land bearing Khasra No,838 measuring 2 Kanals, 2 Marlas, is out of that common land, hence claims that this Court cannot interfere in the revisional jurisdiction of this Court.
' I have minutely considered the arguments of the learned counsel for the parties and have examined the record appended herewith. Document Exh.D.1, 'Wajab-ul-Arz' is not denied by both the parties. It is also admitted between them that Shamlat Deh of village in question was partitioned between the co-owners and this fact has rightly been noted in Exh.D.1. The only controversy appears to be with regard to Khasra No,838 measuring 2 Kanals, 2 Marlas, which according to the petitioners fell to their share at the time of partition as mentioned in Exh.D.1, whereas it is claimed to be joint by the respondents under the same partition. According to Exh.D.1 area of entire Shamlat Deh is 105 Kanals, 19 Marlas, which was partitioned among the owners on account of consolidation proceedings and only those parts of Shamlat Deh were kept joint, which were in common use, in form of passages, graveyards etc. And those parts of land which were kept joint were decided that will not by used by anybody exclusively. There is a copy of Jamabandi for the year 1953-54 on the record, which was prepared after creation of 'Wajab-ulArz' Exh.D.1 and contains as entry in the column of ownership of Shamlat Deh "Hasab Rasad Khewat Bando Bast 1910-11" regarding Khasra No,838 of Khewat No,268, Khatoni No,500. This document shows that after partition of Shamlat Deh Khasra No,838 fell to the share of Muhammad Din son of Mehr Dad predecessor of the petitioners and that is why it was in his possession after partition. According to learned counsel for the respondents Khewat No,268 relates to land, which was kept joint in Exh.D.1, at the time of first settlement in the year 1910-11. This Khewat has six Khasra numbers besides Khasra No,838 and area of this Khata is 105 Kanals, 16 Marlas which, according to stance of the respondents, being joint, was not brought under suit in hand, for partition. A part of Khewat No,268 bearing Khasra No,838 is sought to be partitioned through suit in hand, but this course is not permissible under law. In a similar situation, matter came up for consideration before a Division Bench of this Court in the case of Chandi Shah v. Bahara Shaha and others (AIR 1930 Lahore 286(1)) and it was held that suit for partial partition should be dismissed. In another matter Honourable Supreme Court of this country in the case of Jan Muhammad and another v. Abdur Rashid and 5 others (1993 SCM R 1463), it was mandated that entire joint holding should be put to partition and part thereof which are not partitionable or under heavy constructions, other co-sharers can be compensated by way of money and it was so held on the principle that possession of one co- sharer in law is possession of all the co-owners. Identical view was taken by an Honourable Division Bench from Karachi jurisdiction in the case of Ghazi Qaiser Pervaiz and another v. Ghazi Faisal Pervaiz and another (2000 CLC 519). Refusal to partition a part of joint holding, has wisdom behind it because some parts of the joint holding may be of much more value, as compared to its other parts. Party opting to come for partition, should not be permitted to pick and chose and to have share in valuable parts of the joint holdings by leaving out its parts with lesser value. Each owner is owner of every inch of joint holding to the extent of his share and thus I am of the considered view that a part of the joint holdings cannot be permitted to be partitioned, leaving out major parts thereof, as joint, Viewing the case in hand on this touchstone, though Khasra No,838 is shown to be in exclusive possession of the petitioners, as noted above, yet if at all, in submissions of the learned counsel for the respondents, is still joint, even then this Khewat No,268 having in it other parts, as well as, joint, which were not included in the suit in hand, suit for partition of only one number Khasra to the advantage of the respondents, cannot be allowed to be partitioned. Suit of the respondents being for partition of part of the property, is not maintainable.
8. For what has been discussed above, I conclude that suit of the respondents for partition of a joint holding was not maintainable, if at all was joint, but both the Courts below did not advert to this aspect of the case, out of non-consideration of documentary evidence on the file, as such their judgments are tainted with non-reading of evidence, material irregularity and illegality, hence are not sustainable at law. I accordingly accept this revision petition set aside both the judgments and decrees dated 4-1-2003 and 18-10-2003 passed by Civil Judge and Additional District Judge, Gujrat, respectively, and dismiss the suit for partition filed by the respondents, with costs throughout.