' JAWWAD S. KHAWAJA, J.---The petitioners-defendants impugn the concurrent decrees of the learned trial Court, dated 8-6-2002 and of the learned appellate Court, dated 6-4-2006, whereby a suit for possession through partition filed by Mst. Saddan respondent-plaintiff, has been decreed.
2. The parties hereto are all lineal descendants of Allah Ditta, who was survived by his widow Mst.
Bakhan (petitioner No,1), five sons and four daughters. Mst. Saddan alone filed a suit for possession through petition. The defence setup by the petitioners was that the property had already been partitioned privately, which partition had been duly acted upon and recorded in the arbitration award, dated 17-3-1985 (Exh.D-1) rendered by two arbitrators. Falak Sher (respondent No,2), who is one of the sons of Allah Ditta, was impleaded as a defendant, but filed a conceding written statement.
3. The primary issue involved in this case is as to whether or not'a partition had privately been effected between the legal heirs of Allah Ditta .Deceased. A secondary question, which has arisen, is whether the failure of the parties to have the award (Exh.D-1) made a rule of the Court, was sufficient for purpose of holding that a private partition had not been effected between the parties.
4. Learned counsel for the petitioners-defendants argued that the arbitrators appeared and testified that the partition had been duly effected between the parties. Secondly, even Mst. Saddan respondent-plaintiff did not dispute the arbitration award. Her objection merely was that the award was not made rule of the Court. Learned counsel for the petitioners has referred to the case titled Bibi Najma and others v. Abdul Rehman (1998 SCM R 1304) to argue that even if the award had not been made rule of the Court, if the same has been acted, this would be sufficient to justify the conclusion that the property had been partitioned.
I have gone through the cited precedent, which , prima facie, supports the contention of learned counsel for the petitioners.
5. Secondly, learned counsel has taken me through the evidence on record. Falak Sher (respondent No,2), who sided with the respondent-plaintiff, had earlier filed a declaratory suit in which he expressly acknowledged that the legal heirs of Allah Ditta deceased had privately partitioned the property jointly inherited by them and were in separate possession of their respective shares by metes and bounds. The plaint in the said case has been brought on record as Exh.D-5.
6. Learned counsel also draw the attention of the Court to the fact that Mst. Saddan herself did not enter the witness box. Only her son Zafar Ali appeared as P.W.1. He alone stated that the property had not been partitioned. His Nikahnama, however, was produced as Exh.D-4 wherein the plot of land, which fell to the share of Mst. Saddan, has been shown as given to his Wife in lieu of dower.
7. On the above basis, it was argued that the private partition stood proved. The learned Courts below, however, have proceeded on the premise that because arbitration award (Exh.D-l) had not been made rule of the Court, the partition, privately effected by the parties, could not be recognized or given legal effect. Learned counsel argued that this premise is not legally tenable because the factum of partition between the legal heirs of Allah Ditta deceased stood established through other evidence and even the arbitration award had evidentiary value as enunciated by the Honourable Supreme Court in the case of Najma Bibi v. Abdul Rahman, referred to above.
8. Learned counsel for the respondents, firstly, argued that the matter as to the effect of the arbitration award already stood settled in the judgment of a learned Bench of this Court, dated 24- 9-2001 passed In C.R.. No,79 of 1998. I have gone through the said judgment wherein it has been held that the arbitration award (Exh.D-1) could not have been made the basis for holding that the partition of the suit property between the legal heirs of Allah Ditta had been effected thereby. There is no cavil with the legal proposition that arbitration award could not have been treated as an instrument of partition of the estate of Allah Ditta deceased. This, however, does not mean that the private partition asserted by the petitioners-defendants could not be proved through other evidence.
9. The ratio in the case titled "Najma Bibi and others v. Abdul Rehman" supra is squarely applicable to the facts of the present case. The award (Exh. D.1), though not an instrument of partition, nonetheless has evidentiary valued for corroborating the plea of the petitioners. The Nikahnama (Exh.D.4) referred to above alsosubstantiates the plea of the petitioners that a private partition had been effected between the parties and had been acted upon. Most importantly, however, it is of relevance that Mst. Saddan chose not to appear as a witness and to submit to cross-examination.
Only she had direct knowledge as the private partition. Her son Zafar Ali (P.W.1) could, at best, depose on the basis of hearsay on this issue. His testimony is, therefore, of little help to the plaintiff.
10. Learned counsel for the respondents argued that the respondent Mst. Saddan was an illiterate and pardanasheen lady and, therefore, did not appear in Court. This, however, is no reason for not having her statement recorded through a local commission. No application for this purpose was moved on her behalf. Learned counsel for the respondent/plaintiff submitted that the reference to property given in the Nikahnama (Exh.D-4) was a subsequent interpolation therein. There is, however, nothing on the record to establish this fact. Moreover, Zafar Ali (P.W.1) did not produce his own copy of the original Nikahnama to substantiate this plea.
11. In addition to above, the petitioners who are respectively the mother, brothers and sisters of Mst.
Saddan have acknowledged that the estate of Allah Ditta deceased was privately partitioned between them. Even Falak Sher, who supported Mst. Saddan in the present' case, could not deny that he had accepted the private partition in an earlier suit filed by him.
12. In the foregoing circumstances, I find that the decrees of the learned Courts below, though concurrent, proceed on erroneous legal premises. The same are, therefore, set aside. As a result,