'CH. NAEEM MASOOD, I.-- Neither the petitioner nor his counsel was present on last three consecutive dates of hearing i.e, 4-2-2009, 16-3-2009 and 8-4-2009. Today too, none has entered appearance on behalf of the petitioner, therefore, this civil revision is being decided in absence of the petitioner.
2. Through this civil revision petition, the petitioner has assailed the judgment and decree dated 21- 2-2008, passed by the learned Civil Judge, Kot Addu and concurred by the learned Additional District Judge, Kot Addu, District Muzaffargarh vide his judgment and decree dated 31-5-2008.
3. Brief facts of the case are that predecessor-in-interest of the parties was their father Jan Muhammad, who died on 24-5-1989 and left behind property measuring 3-Kanals and 18-Marlas, which devolved upon the parties through mutation of inheritance No,3394, dated 2-1-1991. Mst.
Wakeelan/respondent No,1 filed a suit for partition of the property in dispute. She asserted that the suit property remained joint between the parties and was constantly in possession of the petitioner/defendant. She further submitted in the suit that earlier her brother the petitioner used to pay her rent money and income of the suit property but stopped it afterwards. The suit was contested by the petitioner/defendant. After recording the evidence of the parties, the learned trial Court decreed the suit filed by respondent No, 1/plaintiff for partition of the suit property through the impugned judgment and decree dated 21-2-2008. The appeal preferred by present petitioner against the above-said judgment and decree, was dismissed by the learned Additional District Judge, Kot Addu vide his judgment and decree dated 31-5-2008.
4. The petitioner in his petition has contended that the property in dispute in an agricultural land, situated at Mauza Pir Her B Sharqi Shah Sunareywala and Shah Dewan Wala and, therefore, in the light of section 135 of the Land Revenue Act, respondent No,1 was under boundened duty to approach the revenue office for partition of her share. It is further asserted in the petition that under section 172 of the Land Revenue Act, the civil Court is said to have no jurisdiction in any manner in such like issues and thus the suit was not maintainable for lack of jurisdiction of the civil Court.
5. It is pertinent to note that the other suit filed by the petitioner against respondent No,1 for cancellation of document, which is discussed in some parts of the impugned judgment, is not relevant as after the decision of the said suit, Mst. Wakeelan Bibi, respondent No,1 never filed any appeal or revision against the said judgment and decree. Only Ghias-ud-Din petitioner has assailed the legality and validity of the impugned judgment and decree of the learned trial Court by filing the appeal and revision.
6. Learned counsel for the respondent N.1 submits that the learned trial Court had ample jurisdiction to try the suit as the property was situated in urban area.
7. I have heard the arguments and have been the record minutely.
8. The admitted position is that Ghias- ud-Din/petitioner. And Mst. Wakeelan/ respondent No,l are brother and sister and are only legal heirs of Jan Muhammad deceased and that the property in dispute has devolved upon both of them through mutation of inheritance No,3394, dated 2-1-1991 and as a result of this mutation, both parties are joint owners of the property in dispute. The ownership of the parties is a sine qua non for the partition of the property in dispute. The record of the case reveals that the petitioner has no established in his evidence that the property i.e, agricultural land was under cultivation. The production of a mere Jamabandi by the petitioner, which has a presumption of truth, is not conclusive that presumption has been rebutted by respondent No,l through a drafted site plan showing the existence of shops in and around the property in dispute Respondent No,l/ plaintiff had clearly stated in para. No,5 in her amended plaint that the property in dispute is situated in urban area of Kot Addu and comprises of two shops and eight houses and is a valuable one. The petitioner has not controverted this fact, rather has given an evasive reply.
In his testimony/examination-inchief recorded as D.W.1, petitioner himself admitted that the shop was in a dilapidated condition and it took one and half lac to reconstruct it. P.W.4, Abdul Hameed is the husband of respondent No,1 and her D General Attorney. This witness has also asserted in his examination-in-chief with existence of shops in the property in dispute. Strangely enough, this witness has not been put any question that the property has not become urban and that it is an agricultural one.
'In 1985 CLC 2111 (Muhammad Yasin v. Shabbir Ahmed), it was held that if there was no cross- examination on act deposited in examination-in-chief, presumption would be that the evidence has been admitted against the party against whom it was given. This proposition of law was reiterated in following cases:- '1986 M LD 2001, "Zafar Iqbal v Imtiaz Hussain" .
'2001 YLR 51, "Kabool Khan v. Shamoon through Legal Heirs and another".
'1991 CLC 1907 "Messrs Habib Bank Limited v. Messrs Public Industries Ltd" .
'2001 M LD 1277 "Muhammad Akram v. Muhamad Rauf".
'1993 CLC 505 "Mrs. Chung Ying Hsiung v. Mst. Seema Saeed".
'1992 M LD 860 "Muhammad Anwar v. Haji Muhammad Ismail and others".
'2001 M LD 957 "Ramzan and two others v. Lara through Legal Heirs and another" .
'Similar is the view on this point of law by Indian Courts. In AIR 1966 Cal. 620 titled "Mst. Sukharagi v.
Calcata State", it was held that a failure to cross-examine a material statement of a witness in examination-in-chief is fatal.
'Likewise, in AIR 1969 Raj 219 titled "State v. Bhola", the decision was that when a party declines to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony could not be disputed at all and that it is the rule of essential.
9. In the light of the above authoritative law, special assertion of witnesses in the examination-in- chief with regard to the property in dispute being urban, having not been challenged in cross- examination, would amount to admission of the same. Besides there is no jurisdictional error or any illegality of misreading or non-reading of the facts.
10. In sequel thereof, the revisional petition is dismissed.