' JAWW AD S. KHAWAJA, J.--Islam-ud-Din petitioner/plaintiff impugns the appellate judgment and decree dated 9-12-2000 whereby the decree of the learned trial Court 17-11-1996 was set aside and the declaratory suit filed by the petitioner/plaintiff was dismissed.
2. The facts of this case are straightforward. Islam-ud-Din petitioner/ plaintiff is the full brother of Ahmad Khan and Sultan (defendants/respondents Nos.1 and 2). Khuda Bukhsh (respondent No.3) is a vendee from Ahmad Khan (respondent No.1).
3. The three brothers above-named were owners of a joint Khata comprising of agricultural land measuring 210 Kanals. It was the case of the petitioner/plaintiff that the Khata had been privately partitioned between the brothers as far back as 1962 and thereafter each brother had taken separate possession. According to the petitioner, the private partition between the brothers gave 75 Kanals out of the Khata to the petitioner while the two brothers Ahmad. Khan and Sultan (respondent Nos.1 and 2) took 67-1/2 Kanals each. The reason for this disparity given by the petitioner/ plaintiff was that his land was of lesser quality being scattered over four Squares bearing Nos.283, 279, 218 and 300 while the land of the other two brothers was compact.
4. Subsequent to the private partition it appears that the three brothers exercised separate proprietary interest in severalty in respect of the land occupied by each of them. This fact is also demonstrated by the sale of land by Ahmad Khan to Khuda Bukhsh (respondent No.3) vide Mutation No.1304 (Exh.P.5). Through this sale Ahmad Khan conveyed land in distinct Killa Nos.17 and 20 in Square No.218 which had fallen to his share pursuant to private partition. Khuda Bukhsh (respondent No.3) in his written statement also asserted that he had acquired title in the land on the assurance that the private partition had taken place.
5. Likewise the petitioner/plaintiff also exchanged specific killa numbers in Square No.218 with one Mashooq Ali vide Mutation No.651 (Exh.P.6) and Mutation No.660 (Exh.P.7) sanctioned on 16-3-1983.
6. Apart from the above documentary evidence the petitioner/plaintiff produced on record Exh.P.1, which is a copy of an application jointly moved by the brothers, before the Tehsildar on 5-7-1977 praying that the private partition be implemented in the Revenue Record. This application (Exh.P.1) was admitted in evidence without any objection on the part of the respondents/defendants.
Although the written statement filed by the respondents Nos.1 and 2 shows that the respondents do not acknowledge any private partition, para.1 thereof is of relevance. The respondent Sultan does not expressly deny his signatures on the application. He has merely averred that the petitioner had prepared the application on a plain white paper. The implication of this averment clearly is that Sultan accepts his signatures on the application (Exh.P.1). As to Ahmad Khan (respondent No.1) it was stated that he was of unsound mind at the relevant time. Here it may be noted that the application (Exh.P.1) has been signed by Muhammad Mushtaq son of Ahmad Khan. The written statement has been filed by respondents Nos.1 and 2 through counsel and it bears the thumb- impression of Ahrnad Khan himself. Ahmad Khan did not appear in the witness box to deny the partition or to deny the signatures of his son on Exh.P.1. There is nothing on the record to indicate that he was of unsound mind and was incapable of taking care of his own interest in the suit property. In the circumstances, the testimony of the P.Ws. Coupled with the exhibits mentioned above including the application (Exh.P.1) were sufficient to prove the case of the petitioner as far as Ahmad Khan is concerned.
7. In respect of Sultan his own testimony is clearly indicative of the fact that he had taken his share in the khata by distinct killa numbers 3/4 years after the land had been allotted to the three brothers.
8. In view of this express testimony, the partition of the joint khata stands proved on record on account of the admission of Sultan to the extent of his interest and on account of the failure of Ahmad Khan to enter the witness box to deny the fact of partition.
9. The learned trial Court was fully justified, therefore, in decreeing the suit filed by the petitioner/plaintiff. The learned appellate Court, I am afraid, has wholly misdirected itself and has overlooked the above evidence. In particular, Exh.P.1 has been discarded by the learned appellate Court for the reason that it does not bear the signature of Ahmad Khan appellant and on the ground that Sultan had denied his signatures on the document. These reasons are not tenable in view of the above discussion. The learned appellate Court has also refused to treat the application (Exh.P.1) as evidence on the ground that it was not mentioned in the body of the plaint. The said document was relied upon by the petitioner and it was wholly unnecessary to mention the document in the body of the plaint considering that the petitioner had expressly asserted that the private partition had taken place between the brothers. The learned appellate Court has noted certain discrepancies in the testimony of the P.Ws. As to the time when the private partition took place. These discrepancies are not material and are only a result of the fact that the evidence of the P.Ws. Was recorded almost thirty years after the partition. In any event, consideting that Sultan acknowledged the partition in his testimony and Ahmad Khan did not enter the witness box to deny the same, there was no occasion for the learned appellate Court to disregard the oral and documentary evidence discussed above which formed the basis of the decree of the learned trial Court.
10. In the foregoing circumstances, I find that the learned appellate Court fell into serious error by excluding material evidence from its consideration and by not considering the material aspects of the case discussed above. The appellate decree,