' ATTAULLAH KHAN, J.---Through this revision petition, petitioners have impugned the judgment/decree dated 25-2-2005 passed by learned Additional District Judge-III, Bannu vide which the appeal of petitioners was dismissed by maintaining the judgment/decree passed by learned Civil Judge-IV, Bannu dated 19-1-2004 vide which the suit of respondents/plaintiffs was decreed.
2. Facts of the instant revision are that respondents/plaintiffs filed a suit for declaration and permanent mandatory injunction in respect of the suit property fully described in the heading of the plaint. The plaintiffs asserted in the body of the plaint that they and defendants are join owners of the suit property and the defendants Nos.15 to 33 have sold their shares in Khasra No,760 to the defendant No,1 and possession has been delivered to him upon which the plaintiff No,1 has instituted the pre-emption suit against the defendant No, 1 . That Khasra No,196 was previously Khasra No,339 which is undivided. The defendant No,1 has started the construction in Khasra No,760 though no registry or mutation has been sanctioned in his favour but the possession is delivered to him. The suit property is the joint property and no official partition thereof has been taken place.
The defendants Nos.1 to 33 were asked not make any construction in the suit property but they refused, hence filed a suit in the trial Court.
3. The petitioners/defendants appeared in the trial Court and submitted their written statement.
The learned trial framed the following issues from the divergent pleadings of the parties.
(1) Whether plaintiffs have got the cause of action?
(2) Whether plaintiffs have come to the Court with clean hands?
(3) Whether the disputed Khasra No,760 is ownership and in possession of one Asghar Ali and he is raising construction in the said Khasra?
(4) Whether the suit property is joint ownership of the parties?
(5) Whether pre-emption suit of the plaintiffs regarding Khasra No,760 was dismissed by the Court of Senior Civil Judge, Bannu, if so its effect?
(6) Whether the suit property has not been, partitioned between the parties as yet, if so its effect?
(7) Whether plaintiffs are entitled to the decree as prayed for?
(8) Relief.
4. The trial Court after framing issues, directed the parties to produce their respective evidence as they wished and after hearing the arguments from both sides the suit of respondents/plaintiffs was decreed vide judgment/decree dated 19-1-2004.
5. Petitioners/defendants impugned the judgment/decree of the trial Court before the learned Appellate Court, who after hearing arguments of both the sides dismissed the appeal of petitioners defendants vide judgment/decree dated 25-2-2005 by maintaining the judgment/decree of the trial Court, hence the instant revision petition.
6. Both learned counsel for the parties submitted their written arguments. I have perused the written arguments as well as record on file including evidence of the parties, in the light of which my discussion is as under.
7. The trial Court decreed the suit against which the cross-objection and appeal were dismissed by the learned appellate Court. The plea taken by the petitioners that both the lower Courts failed to take the notice of evidence of the plaintiffs in which he has admitted in cross-examination that some houses are already constructed on Khasra No,761. This fact has established that private partition has taken effect between the parties. It is further stated in the written arguments that the plaintiff/respondent No,1 has failed to prove the sale, of Khasra No,760. It is also in the written arguments that according to Fardjamabnadi Exh.P.W.1/1 one Amanullah is in exclusive possession of Khasra No,760.
8. On the other learned counsel for the respondents contended in the written arguments that the parties are co-owners in the suit property and no official partition has taken place as apparent from the revenue record Exh:P .W.1/1 to Exh:P .W.1/4. According to written argument's since partition has not been taken, therefore, the construction raised by the petitioners is against law and fact. It is further contended that the plea taken by the petitioners in respect of private partition has not been proved through evidence. According to written arguments, the plea of private partition has not been taken by the petitioners in the trial Court and is taken at the time of revision for the first time and which is not allowed.
9. Record shows that Haji Usman etc., plaintiffs filed the suit for declaration to the effect that the suit property comprised of Khasra Nos.759 to 761 are the joint ownership of the parties and defendant No,1 without partition is not entitled to raise construction on Khasra No,760. The plaintiffs also prayed for giant of permaneni injunction. In support of their claim Patwari Halqa has been produced by the plaintiffs. He also examined Muhammad Yousaf Bailiff of the Civil Court and also recorded his statement as P.W.3. The plea taken by the plaintiffs is that the suit property is joint ownership of the parties and so for no private partition has been taken place. The statement of Patwari Halqa reveals that the suit property is in the joint ownership of the parties. He expressed his ignorance about the private partition between the parties..
10. In my opinion statement of Patwari Halqa is sufficient to prove the plea of the plaintiffs about the joint ownership and non-partition of the suit property. In the arguments the petitioners have taken the plea of private partition for the first time at revisional stage is not correct because this plea has been taken by the plaintiffs in his plaint as well as in the statement before the Court as P.W.3. The plaintiffs have denied any official/private partition of the suit property. On the other hand, while appearing as his own witness Azad Khan petitioner/defendant has taken the plea that some 30 years back the suit land was privately partitioned between the parties and every owner is in possession according to their share. The defendants have failed to produce any cogent evidence in rebuttal.
11. The result of my above discussion is that the respondents/ plaintiffs have proved that the suit property is joint ownership of the parties and no private or official partition has taken place between them. The petitioners/defendants has failed to establish any illegality or gross miscarriage of justice and jurisdictional error in the impugned judgments/decrees.
12. In the light of above stated position I do not see any illegality or irregularity in the judgments/decrees passed by learned lower Courts. Resultantly, the instant revision petition is devoid of merits, therefore, dismissed.