MUHAMMAD AMEER BHATTI, J.--- Through this C.R, the judgment of the learned First Appellate Court dated 22.01.2002 has been challenged whereby the suit of the petitioner has been dismissed by reversing the findings of the learned Trial Court.
2. The brief facts of the case are that the house measuring .4-M and 8 1/2 Sarsai was initially allotted to five brothers namely Siraj Din, Taj Din,, Dilshad Ahmed, Muhammad Iqbal and Jan Muhammad. PTD was issued in their names in the year 1962. Two brothers namely Muhammad Iqbal and Dilshad Ahmed sold their shares through registered sale-deed to one brother Siraj Din in the year 1987, however, at one stage in the year 1981, a dispute had arisen between the parties and a suit for partition was filed, however, it was withdrawn on the basis of a compromise but nothing has brought on record abut the settlement of the parties. It is also not disputed that the front portion of this house remained in possession of Jan Muhammad who after demolishing the front portion constructed two shops and out of these two, one shop was sold by Anwar-ul-Haq to Abdul Waheed. It is also relevant to mention here that Jan Muhammad transferred his share to his three sons vide mutation No. 8368 through a will dated 22.1.1985, however, the mutation was sanctioned in the year 1992. One of the sons namely Anwar-ul-Haq sold his shop to Abdul Waheed with boundaries indicated in the sale-deed. The same portion of this house with the same description and boundaries as mentioned in the sale-deed has been transferred by Abdul Waheed to Muhammad Fazil. Taj Din has also transferred his share in favour of Siraj Din, the present petitioner through a relinquishment deed dated 06.08.1992. As such, when the petitioner became owner of 4/5 share of the disputed property, filed a suit for partition against Ehsan-ul-Haq, Khushi Muhammad and Muhammad Fazil.
3. The written statement was filed wherein, apart from dispute the factual position, the defendants took a specific stand about the family settlement/partition taking place in the year 1983. The plea of res judicata was also taken as a preliminary objection. Issues were framed and parties produced their oral as well as documentary evidence.
4. It is appropriate to mention here that during the pendency of this suit, Ehsan-ul-Haq and Khushi Muhammad sons of Jan Muhammad sold their shares to the present petitioner and there was only one contesting litigant i.e. Muhammad Fazil, who was subsequent vendee from Anwarul-Haq.
However, the learned Trial Court vide its judgment dated 22.1.2001 passed a preliminary decree which was challenged by the respondent before learned First Appellate Court who vide his judgment dated 22.1.2002 accepted the appeal and while setting aside the judgment and decree of the learned Trial Court dismissed the suit of the present petitioner. Hence this Civil revision.
5. The learned counsel for the petitioner contends that the learned Trial Court has misread and misconstrued the evidence of the petitioner hence the judgment and decree of the learned First Appellate Court is not sustainable in the eye of law. He has referred to many excerpts of oral evidence and the documentary evidence produced by him to prove this fact that the front portion where the shops were constructed was in possession and ownership of all the five brothers, however, five rooms which are available besides this front portion, have been apportioned for each.
It is not denied by the plaintiff that the rent of the shops was allowed to be received by Jan Muhammad, the predecessor in interest of Muhammad Fazil vendor. The nutshell of the claim of learned counsel for the petitioner is that when five brothers were equitably given five rooms, how this front portion can be given to one brother in addition to the room. Since this portion of the property remained undivided, hence he was entitled to get the de3cree for its partition. It is also contended by the learned counsel for the petitioner that the res judicata is not applicable in the partition suit. He has relied on PLD 1967 Dhaka 809, 1987 CLC 195 and 1994 CLC 967.
6. On the other hand, learned counsel for the respondent contends that the partition suit earlier was filed by the parties and it was withdrawn keeping in view the compromise/settlement between the parties, which serves as a good evidence to come to this conclusion that the partition had taken place were the parties and according to this partition, they were in possession and the present respondent Muhammad Fazil accordingly purchased the shop, from Abdul Waheed through a registered sale-deed who had purchased this shop from Anwar-ul-haq, the son of one of the Original allottee of the house/property. He has referred to the sale-deeds where with specific description this shop has been transferred, though to the extent of the share of Anwar-ul-haq. So far as the application of res judicata is concerned, he has relied on 2003 M LD 961 and 2001 MLD 61.
7. I have considered the arguments and perused the record with the assistance of the learned counsel for the parties.
8. I find that the learned First Appellate Court has rightly held taking into account the sale-deeds as boundaries of the shop have been specifically mentioned in the sale- deeds-not only in the sale-deed in favour of Muhammad fazil but also in the sale-deed in favour of the petitioner. Particularly, in the transfer deed, the boundaries have been earmarked. So far as the contention of the learned counsel for the petitioner is concerned that he has purchased the share of the co-owners, hence Muhammad Fazil shall also be treated as co-sharer and no prior partition had taken place, as the respondent has failed to prove the factum of partition held between the parties, so he is entitled to get the disputed house to be partitioned according to the present situation of the disputed property as he is now the owner of maximum portion of the disputed house, is not tenable as he himself purchased the portion of the other co-owners not only on the basis of their shares but the registered deed also disclosed the description and boundaries of the share whatever he has purchased from the co-owners. It has not been denied by the learned counsel for the petitioner that the front portion of the house except the DURI which was in common use of all the owners, remained in custody and utilization of Jan Muhammad, the predecessor in interest of the vendor of Muhammad Fazil. It has also not been denied by the learned counsel for the petitioner that the said Jan Muhammad after demolishing the front portion himself reconstructed two shops and at that time, the petitioner had not raised any objection. Even then, the shops had been transferred in the names of his three sons by Jan Muhammad, namely Anwar- ul-haq, Ehsan-ulhaq and Khushi Muhammad and one room out of those five rooms which had been allocated for each brother and the present petitioner, purchased two shares of the two brothers and one share was purchased by Muhammad Fazil. Since Muhammad Fazil has purchased ' specific portion with specific identification, boundaries and earmark, he cannot be dispossessed from this portion of disputed property under the garb of partition. In fact, Muhammad Fazil respondent has purchased the land after verification of the registered document and being a bond fide purchaser, he cannot be deprived of his legitimate right at this stage.
9. I do not find any misreading, non-reading or perversity in the judgment of learned First Appellate Court, which has been passed after appreciating the entire evidence produced by the parties in proper perspective. There is no illegality or irregularity in the judgment, hence this revision petition fails and dismissed. No order as to costs.
Civil Revision .