JAWWAD S. KHAWAJA, J.---The petitioner/plaintiff, namely, Zeenat Bibi impugns the appellate judgment and decree, dated 27-1-2001, whereby the learned Appellate Court set aside the decree of the learned trial Court, dated 29-10-1999 and proceeded to dismiss the suit filed by the petitioner seeking possession of her share of the disputed property through partition.
2. The facts of this case are straightforward. It was the case of the petitioner that the suit property was originally owned/occupied by Jewan Bukhsh, who was a refugee from Jammu and Kashmir.
The petitioner is the daughter of Manzoor Ahmad deceased son of Jewan Bukhsh. The three respondents are the sons of Jewan Bukhsh and brothers of Manzoor Ahmad. The relationship between the parties is not in dispute.
3. On the basis of the admitted relationship, it was claimed by the petitioner that she was entitled to 1/8th share in the disputed property being the only legal heir of Manzoor Ahmad deceased. The respondent No.1, namely, Bashir Ahmad filed a written statement claiming that he was the sole owner occupant of the suit property and that neither the petitioner nor her grandfather Jewan Bukhsh had any proprietary or possessory interest therein. The two other respondents, namely, Ghafoor and Yaqoob conceded the claim of their brother Bashir Ahmad.
4. The parties led evidence on issues which were framed by the learned trial Court. Of these, Issue No.6 is the crucial issue. Both learned counsel also confined their arguments to Issue No.6 which was framed in the following terms:-- "Whether the disputed house and shop was owned by Jewan Bukhsh/grandfather of the plaintiff, if so, what are respective shares of the parties? OPP."
5. After considering the evidence adduced by the parties, the learned trial Court came to the conclusion that Jewan Bukhsh was, indeed, the owner occupant of the disputed property and, as such, the petitioner, being daughter of Manzoor Ahmad son of Jewan Bukhsh, was entitled to 1/8th share in the suit property.
6. The decision of the learned trial Court appears to have been accepted by Ghafoor and Yaqoob (respondents Nos.2 and 3), who did not file an appeal to assail the same. Only Bashir Ahmad (respondent No.1) preferred an appeal which, as noted above, has been allowed by the learned Appellate Court. The reason, which has prevailed with the learned Appellate Court, is that the petitioner has not been able to establish through any documentary evidence that Jewan Bukhsh was the owner occupant of the disputed property. Here it may be noted that even Bashir Ahmad was not able to produce any document to support his claim that he was the exclusive owner occupant of the property in question.
7. The testimony of Bashir Ahmad (respondent No.1), who appeared as D.W.1, is most relevant and is, by itself, sufficient to establish the claim asserted by the petitioner/plaintiff. Although in his examination-in-chief Bashir Ahmad claimed to be the exclusive owner of the property, he admitted in his cross-examination that all four brothers, namely, Manzoor Ahmad and the three respondents, together with their father Jewan Bukhsh, were in occupation of the property since 1947 when their family migrated from Jammu and Kashmir. He further admitted that the three surviving brothers (respondents herein) were living in their separate portions of the disputed property which they had partitioned among themselves by raising dividing walls. This admitted position is sufficient to belie the exclusive claim over the disputed property asserted by Bashir Ahmad. His testimony is also probative of the fact that Manzoor Ahmad was also entitled to equal share in the property along with his three brothers after the death of their father Jewan Bukhsh. On the basis of the testimony of Bashir Ahmad himself, I am not left in any doubt that the petitioner, being the daughter of Manzoor Ahmad, was entitled to 1/8th share in the suit property.
8. The learned Appellate Curt has committed error in law, firstly, by proceeding on the premise that the petitioner had not produced documentary evidence to establish the claim of her grandfather Jewan Bukhsh in the suit property. Being refugee, from Jammu and Kashmir, it A is obvious that Jewan Bukhsh did not have any document of title in respect of the suit property. Bashir Ahmad also did not have any document of title. The title of Jewan Bukhsh and, after his death, his sons was based on their occupation and possessory interest in the suit property. Secondly, the learned Appellate Court also erred in the exercise of its jurisdiction by failing to draw the irrefutable inference arising from the testimony of Bashir Ahmad, that the brothers, rather than Bashir Ahmad alone, were entitled to the property in dispute.
9. In the foregoing circumstances, I find that the appellate decree is not legally sustainable. The same is, therefore, set aside. As a result, the judgment and decree of the learned trial Court, dated 29-10-1999 stand restored.