ABDUL WAHEED KHAN, J.--- The respondent/plaintiff filed a suit for possession through partition of residential plot measuring 1-Kanal 18-Marlas situated in Mohallah Sadar Bakhash, Bhakkar against his brothers namely Muhammad Yousaf and Muhammad Yaqub. The suit was contested by filing the written statement whereby the petitioners/defendants denied the averments of plaint as according to them, respondent/plaintiff had no concern with the property in any manner whatsoever and after the settlement of issues, the parties adduced their evidence.
2. The respondent/plaintiff examined Muhammad Ishaq PW-1, Bashir Ahmad son of Muhammad Nawaz as PW-2 respondent himself entered into witness box as PW-3 and produced extract of sale-deed Ex.P1 to Ex.P27 and examined Fateh Sher son of Alamsher as PW-4 and concluded his evidence by producing orders of EDOR dated 15.5.2003 Ex.P28, copy of appeal Ex.P29 and order of D.C.Ex.P30 while in rebuttal he examined Habib Ullah constable Excise and Taxation Department as PW-5 who produced PTI from 1998 to 2003 by producing record. In rebuttal Muhammad Yousaf one of the respondents/defendants entered into witness box as DW-1 and examined Kauo Khan son of Hussain Bakhsh as DW-2 and Abdul Majid as DW-3 and concluded evidence by tendering PTI as Ex.D1.
3. The suit of the respondent/plaintiff was dismissed by the Civil Court vide judgment and decree dated 17.7.2001. Subsequently, appeal was filed which was accepted by Additional District Judge-II,.
Bhakkar vide judgment and decree dated 10.8.2004.
4. Feeling aggrieved the same, the petitioners/defendants has come before this Court through this Civil revision.
5. The contentions of learned counsel for the petitioners/defendants are that Muhammad Yousaf petitioner purchased the suit property from one Nazir Ullah Khan Dhandla and that the respondent/plaintiff has no concern with the property in any manner whatsoever, Learned counsel for the petitioners/defendants submits that since the parties are not co-sharers of the property, therefore, the question of partition does not arise. He further submits that the record of Excise Department also proved that Muhammad Yousaf, petitioner/defendant is owner of the property.
Lastly contends' that the suit before the Civil Court was badly time barred, who rightly dismissed the suit of respondent/plaintiff. It is further submitted that appellate Court has exercised its jurisdiction in an erroneous manner, therefore, the judgment and decree of the appellate Court be set-aside.
6. Conversely, the contentions of learned counsel for the respondent/plaintiff are that it was an oral sale with an intent to avoid the stamp duties, therefore, the value of the property was shown to be less than Rs. 1000/- and for this reason, the sale-deed was not got registered. It is submitted that infect the property L was purchased in the name of respondent /plaintiff and also in the name of parties, which is fully proved from the register of petition. It is next submitted that petition writer, namely Ghulam Hussain has expired and his son namely Muhammad Ishaque has proved the fact that Muhammad Nazir Dhandla alienated the property in the name of respondent/plaintiff and also in the name of petitioners. According to him, the suit for partition can be filed at any stage.
With these submission, it is prayed that impugned judgment passed by learned Additional District Judge, Bhakkar does not call for any interference.
7. I have heard the arguments of learned counsel for the parties and perused the record.
8. It is an admitted fact that parties are real brothers interse. The onus to prove the fact that respondent/plaintiff is co-sharer in the suit property and is entitled for the decree for partition of the same was on the respondent/plaintiff. To discharge the said onus he produced Muhammad Ishaq son of Ghulam Hassan, who is son of petition writer, who made statement that his father has expired and that he has brought record maintained by his father for the execution of deeds and petitions. He made statement that according to Sr. No. 1017, dated 25.3.1981 and Sr. No. 1018 to 1041, 1056, 1063, entries of sale-deeds were recorded, which were in the name of Muhammad Yousaf, Muhammad Yaqub and Muhammad Ayoub sons of Muhammad Bakhsh. According to him at Sr., No. 1019 sale-deed No. 36 is recorded in the name of Muhammad Ayoub which is Ex.P1 and according to SR.No. 1022 sale-deed Ex.P1 to Ex.P27 recorded in the name of Muhammad Ayoub respondent/plaintiff. The said PW was cross-examined at length but nothing could be brought on record in favour of the petitioners/defendants. Bashir Ahmad PW-2 is the marginal witness of sale entries Ex.p1 to Ex.P27. He is the signatory of the said sale-deeds. The statement of the PW was also remained unchallenged. Muhammad Ayub also appeared as PW-3 and he specifically stated that he and his brother namely Muhammad Yousaf and Muhammad Yaqub jointly purchased the property to the extent of 1 /3rd share each and that he raised construction to the extent of his share. He further stated that original sale-deeds and entries which are recorded to Ex.P1 to Ex.P27 are in possession of the petitioner/defendant, who did not return the same to him and had refused to share the property. The statements of PW 1 to PW-3 are further corroborated by Fateh Sher, PW-
4. Muhammad Yousaf while appearing as his on witness in rebuttal stated that the respondent/plaintiff was of the age of 10/11 years and that he was not in a financial position to purchase the property and that ancestral house was jointly owned by the parties, which had already been partitioned. It is an admitted fact .That petitioner/defendant has failed to produce any sale-deed before the Civil Court. He has admitted that the property purchased through sale- deed on stamp paper, which was not to be registered. The petitioner/defendant was in possession of best evidence but for the reason best known to him he withheld the same and his failure to produce the same before the Civil Court raises the presumption against him. The respondent/plaintiff has successfully proved the sale documents Ex.P1 to Ex.P27 and the same proved the fact that the property was purchased in the name of respondent/plaintiff and the petitioners/defendants jointly and that it was not sold by Nazir Ahmad Dhandla to the petitioner alone. The respondent/plaintiff has successfully proved his claim to the extent of 1/3rd share in the joint property through convincing, cogent, oral as well as documentary evidence. Since it has been established that the property was purchased at the name of three brothers and not in the name of petitioners/defendants only, it is held that the respondent has cause of action to file the suit. The appellate Court has rightly given its finding in holding the respondent/plaintiff to be a co-sharer in the suit property to the extent of1/3rd share. Learned counsel for the petitioners/defendants could not point out any illegality or irregularity in the impugned judgment passed by appellate Court, which does not call for any interference, Resultantly, the instant revision petition having no force is hereby dismissed with no order as to costs.
Civil .