' JAWWAD S. KHAWAJA, J.---This revision petition arises out of a suit filed by Khawaja Nayyar Qayyum (plaintiff/petitioner) seeking possession through partition, of his share in the property fully described in paragraph 1 of the plaint. The said property was owned by Abdul Qayyum, who is the common predecessor-in-interest of the parties to this revision petition. The petitioner Khawaja Nayyar Qayyum and the respondent No,1 Zubair Qayyum are the sons of Abdul Qayyum. The respondents Nos.2 to 5 are also the son and daughter respectively of Abdul Qayyum, while respondent No,6 Mst. Fahmida Begum is the widow of Abdul Qayyum. The seventh respondent, namely, Mst. Humaira Bano is also the daughter of late Abdul Qayyum.
2. Respondents Nos.2 to 7, who were impleaded as defendants in the partition suit, submitted a conceding written statement. Only Zubair Qayyum respondent No,1 contested the suit. In his written statement, he took up the plea that late Abdul Qayyum was owner of two other properties also, namely, Wyne House located in Gali Muhammad Islam, Khadim Ali Road, Sialkot and Kothi No,94 located on Muradia Road, Model Town, Sialkot, although Wyne House was owned Benami in the name of respondent No,6 Fahmida Begum (widow of Abdul Qayyum), while Kothi No,94 was owned Benami by Yasmin wife of Khawaja Abdul Qayyum (petitioner/ plaintiff). On this basis, it was contended that the partition suit filed by the petitioner/ plaintiff was not maintainable because he had sought partial partition.
3. The learned trial Court decreed the partition suit vide judgment and preliminary decree dated 11- 6-1988. Feeling aggrieved, Zubair Qayyum respondent No,1 preferred an appeal. The learned lower appellate Court reversed the finding of the learned trial Court on Issue No,2 (Whether the suit is not maintainable in view of partial partition? OPD) holding that the two other properties, namely, Wyne House and Kothi No,94 also had to be dealt with in the present proceedings. The case was, therefore, remanded to the learned trial Court.
4. I have gone through the impugned appellate judgment, with the assistance of both learned counsel, and find that the same is not legally sustainable. The petitioner/ plaintiff was entitled to confine his suit to the property described in the plaint, which admittedly was owned by Abdul Qayyum, predecessor-in-interest of the parties. The suit filed by the petitioner was a partition suit and not an administration suit in which all properties of Abdul Qayyum had to be consolidated.
Furthermore, the other properties, namely, Wyne House and Kothi No,94 quite clearly were not owned by the late Abdul Qayyum. These properties were respectively in the names of Fahmida Begum widow of Abdul Qayyum and Yasmin wife of the petitioner. If at all, Zubair Qayyum (respondent No,1) had any claim as to Wyne House and Kothi No,94, he could separately have initiated proceedings by claiming declaration of title in the said properties.
5. In the foregoing circumstances, I find that the learned lower appellate Court was not justified in remanding the case by reversing the finding of the learned trial Court on Issue No,2.
6. It is clear from the contents of paragraph 4 of the impugned appellate judgment as also from the arguments advanced by learned counsel for Zubair Qayyum that the only issue pressed before the learned lower appellate Court was Issue No,2. The other issues, including Issue No,1, are, in fact, common to the parties in the sense that all of them claim to be the legal heirs of Abdul Qayyum and this is also the admitted position.
7. In the toregoing circumstances, the judgment and decree of the learned lower appellate Court dated 10-12-1991 is set aside. As a consequence of the foregoing discussion, the judgment and decree of the learned trial Court dated 11-6-1988 stands restored.