NASIR SAEED SHEIKH, J. --- The present petitioner instituted this Civil Revision against the judgments and decrees passed by the two Courts below in a suit instituted by the respondent No. 1 Nazir Ahmad for the partition of House No. 21, Block No. 8, measuring 25 Marlas situated in Khasra. Nos.
1397-1398 in new Civil Line, Faisalabad. It was contended in the plaint that Muhammad Ismael, father of the plaintiff as well as that of defendant No. 1, gifted away the subject property in half shares to both of his sons, the plaintiff as well as the defendant No. 1 and that the property is joint and be partitioned. The defendant No. 1 contested this suit by alleging that a private partition of the property was effected between the plaintiff and the defendant No. 1 and that out of his own sources, the said defendant No. 1 constructed the commercial portion of the property on the basis of the private partition. The petitioner as a defendant No. 1 prayed for dismissal of the suit.
2. The learned Civil Judge who heard the matter, framed the following issues on 29.06.2002:
1. Whether the private partition of the suit property has taken place with the consent of the parties?
OPD Whether the suit is not maintainable due to non-joinder of necessary parties? OPD Whether the plaintiff is estopped from his words and conduct to file this suit? OPD Whether this suit is not maintainable due to mis-joinder of causes of action? OPD
5. Whether the defendant No. 1 raised construction over the suit property from his own pocket? OPD Whether the suit property is jointly owned by plaintiff,and defendant No. 1? OPP Whether the suit property is partiable? OPP Whether the plaintiff is entitled to a decree of partition of suit property and recovery of mesne profit? OPP
9. Relief.
3. Both the parties produced their respective evidence . The learned Civil Judge vide judgment and decree dated 17.11.2008 passed a preliminary decree for partition of the subject property. The relief clause of the judgment dated 17.11.2008 passed by leaned Civil Judge is reproduced as under:- "For what has been discussed in all the above issues a preliminary decree for partition is hereby passed. Parties are admittedly owners of equal shares in the suit house, which is 25-M in toto.
Share of plaintiff is thus 12-1/2-M and that of defendant No. 1 also 12- 1/2-M in the suit house. Mr. Nasir All Goraya, Advocate is hereby appointed local commission for a fee of Rs.6,000/- to be paid by the plaintiff. Learned local commission is directed to give notice to the parties, to visit the suit house and to prepare his report on the folio wing points:
1. Whether the suit house is partitionable?
2. What should be the mode of partition according to shares of the parties?
Learned local commission is further directed to submit his report on the above point on 22.12.2008."
4. Both the parties preferred two separate appeals against the judgment and decree dated 17.11.2008 passed by the learned Civil Judge. The reasons for filing an appeal by the plaintiff/respondent No. 1 was that the learned Civil Judge declined the relief of mesne profits in the judgment and decree dated 17.11.2008 to the plaintiff/respondent No. 1. Both the appeals came up for hearing before a learned Addl. District Judge who vide judgment and decree dated 10.07.2010 dismissed the appeal of petitioner Muhammad Farooq against the preliminary decree and accepted the appeal of the plaintiff/respondent No. 1 Nazir Ahmad by setting aside the findings of learned Trial Court on the issue No. 8 and further directed the learned Trial Court to determine the quantum of mesne profits and grant the share therein to the plaintiff/respondent No. 1 in accordance with law. This Civil Revision is directed. Against the judgments and decrees passed by the two Courts blow.
5. It is contended by the learned counsel for the petitioner that all the necessary parties were not limpleaded in the suit and therefore the suit was not competently instituted. According to the learned counsel for the petitioner, the subject property was owned by a number of joint owners and this objection has been raised in the written statement by the petitioner and therefore the suit should not have been decreed in the absence of necessary parties. It is next contended that the petitioner/defendant moved an application dated 9th September, 2008 for production of copies of a number of mutations and which application was illegally rejected by the learned Trial Court vide order dated 22.09.2008. The learned counsel for the petitioner further contends that the petitioner/defendant took the plea in his written statement that he had himself constructed the subject property by spending Rs. 10 lacs and that the petitioner successfully proved the above-said fact through his evidence which fact has been ignored by the learned two Courts below. I/ is next contended that DW.1 Muhammad Khalid Mahmood was produced by the petitioner to prove that the , three storeys constructed over the portion of subject-matter which is in the possession of the petitioner could have been constructed after rendering expenditures of Rs. 10 lacs. It is next contended that father of the parties who appeared as ,PW.3 in support of the case of the respondent No. 1/plaintiff was biased against the present petitioner on account o religious differences and that his partiality is apparent on th record on the basis of his presence in the Court proceeding on a number of occasions and even when the matter wa taken up before the Hon'ble Supreme; Court of Pakistan, th father of the parties kept on appearing with the responden No. 1/plaintiff which proved his partiality. Thus the learned counsel for the petitioner contended 'that the judgments and decrees passed by the two Courts below are illegal and without lawful authority and that the case be remanded back by allowing the petitioner opportunity to produce the copies of mutations which were requested to be .Produced through the application dated 09.09.2008 moved by the present petitioner/defendant before the learned Trial
6. Conversely, the respondent No.1has himself addressed the arguments in this matter as according to him he cannot arrange a lawyer. He has contended that the petitioner could not prove through any reliable evidence that he had any source of income of Rs. 10 lacs for the purpose of spending the same over the construction of the commercial portion of the subject property. The respondent No. 1/plaiitiff has further contended that he has occupied a portion measuring 6 Merles in which there is not a toilet available and that the petitioner is depriving him from the benefits of the property from the last so many years which was originally gifted away by the father of the parties in equal shares to the respondent No. 1 as well as to the petitioner.
7. Arguments heard and record. Perused.
8. After considering the arguments of the parties the learned Civil Judge vide judgment and decree dated 17.11.2008 recorded a crucial finding on issue No. 1 by holding that the defendant No. 1 of the suit failed to prove the private partition of the subject property through any documentary evidence or even through any other reliable evidence produced by him and the learned Judge treated the property as a joint holding in equal shares between the plaintiff and the defendant No. 1. The, learned Civil Judge recorded another important finding on issue No. 5 which relates to the claim of the present petitioner about the incurring cf expenses of Rs. 10 lacs for the construction of commercial plaza. The learned Civil Judge recorded the following observation on issue No. 5:- "Defendant did not produce any documentary evidence to prove this issue in his favour. Even otherwise if it had been so it cannot effect the partition of the suit house, because in a joint holding any construction of a specific portion of the joint holding is always subject to the partition and no benefit can be sought for by either of the parties. This issue is decided against the defendants".
9. The learned Civil Judge then recorded finding on issue No. 6 by holding that the property, subject-matter of the suit, is jointly owned by the defendant No. 1 and plaintiff. The learned Civil Judge while recording his finding on issue No. 9 came to the conclusion that the subject property is unpartitiondd and found the plaintiff of the suit entitled to get a decree for possession through partition of the subject property. However, in respect of the prayer for the recovery of mesne profits, the learned Chit Judge declined the relief to the plaintiff of the suit while observing as under:- "As far as the matter of recovery mesne profit is concerned no solid evidence has been produced by the plaintiff to prove the quantum of mesne profit, which was obligatory upon the plaintiff and to this extent issue is decided in negative."
10. The learned Civil Judge accordingly passed a preliminary decree for partition of subject property as directed in the relief clause reproduced above. The learned Addl. District Judge in the impugned judgment dated 10.07.2010 passed on appeals preferred by the two parties recorded important observations in paragraph Nos. 14, 15, 16 and 17 and finally decided the appeals by observing in Para-18 as under-- "Therefore, appeal filed by Muhammad Farooq defendant No. 1 against the preliminary decree is hereby dismissed and appeal filed by Nazir Ahmad plaintiff to the extent of finding of learned Trial Court upon issue No. 8 is accepted in the above terms with no order as to costs. The files of this Court be consigned to the record room while record of learned Trial Court be returned forthwith. Parties are directed to appear there on 24.7.2010."
11. The contention raised by the learned counsel the petitioner that the suit of the plaintiff was not maintainable on account of non-impleadment of necessary parties has no factual or legal force.
The learned counsel for the petitioner admitted that in the written statement no name of any particular person has been mentioned by the petitioner/defendant who according to the defendant No. 1 is the co-owner or joint owner of the subject property nor the defendant who appeared in his evidence as DW.5 mentioned the name of any person in his examination-inchief who can be said to be the joint owner of the subject property. It is an admitted position on the record that the subject property was previously owned by Muhammad Ismael, father of the plaintiff as well as of the defendant No. 1, who has appeared as PW.3 himself in the evidence and has made categorical statement that he has constructed the property himself and that the subject property was gifted by him to his two sons, the plaintiff and defendant No. 1. Thus the plea of learned counsel for the petitioner that the suit of the 'plaintiff was not maintainable on account of nonimpleadment of necessary parties is without any substance and is rejected.
12. The learned counsel for the petitioner has vehemently argued that the petitioner has taken the plea in this written statement that he had spent Rs. 10 lacs over the construction of the subject property himself and in order to prove this plea the learned counsel for the petitioner has stated that his two sisters appeared as DW.3 and DW.4 from whom the petitioner boirrowed some amount and that he also took a loan from the bank and the total amount was spent by him equal to Rs. 10 lacs over the construction of subject property . I have considered the plea of tha learned counsel for the, petitioner and find that in his examination-in-chief as DW.5 the petitioner did not mention that he spent a sum of Rs. 10 lacs over construction of the subject property and that he borrowed the said amount from his sisters and some from bank . The two sisters who appeared as. DW.3 and DW.4 did not specifically mention any amount which was lent by them to the petitioner/defendant.
The petitioner did not specify any amount borrowed from his sisters in his written statement.
Additionally, the petitioner did not produce any document on the basis of which he could prove the obtaining of any loan from any bank as no such document was exhibited on record. The plea of the learned counsel for the petitioner that an application was made by the petitioner for producing the copies of the mutations mentioned in application dated 09.09.2008 whereby the sales effected by the father of parties of his land, which documents according to the learned counsel for the petitioner, did not reflect the actual amount of Rs. 4 lacs which the father claimed over the construction of property, and that the rejection of thisapplication by the Courts below has resulted into miscarriage of justice is also without any substance. The application of the petitioner was rejected by the learned Civil Judge vide order dated 22.09.2008 and according to the learned counsel for the petitioner a revision petition filed against the said order was also dismissed therefore there is no justification now available for the petitioner to pray for them and of the case as requested by the learned counsel for the petitioner for allowing those documents to be produced. There is nothing on the file as to whether the present petitioner successfully proved that he spent Rs. 10 lacs over the construction of subject property as discussed above. The petitioner has miserably failed to prove this fact through any convincing evidence. The father of the parties has appeared as PW.3 and has fully supported the case put up by the respondent No. 1/plaintiff and has further proved that he himself raised the construction over the subject property. The contention of the learned counsel for the petitioner that the father of the parties is biased on account of some religious differences has no substance although some suggestions were given in this respect. The petitioner when appeared as DW.5 did not allege any bias against his father in his examination-in-chief, therefore, there is no force in the argument of learned counsel for the petitioner that his father is biased against the present petitioner and therefore he be presumed to be a false witness. Merely because the father of the parties has been appearing on different dates in the matter does not cause any adverse effect upon the conduct of the father of the parties who appeared as PW.3. The learned. Counsel for the petitioner could not point out any other misreading or non-reading in the evidence of the parties. The two Courts below recorded concurrent findings in the matter against the petitioner. The learned Addl. District Judge further amended the relief clause for allowing the due share to the respondent in the mesne profits therefore no case for interference in exercise of revisional jurisdiction is made out in the matter. The instant Civil Revision is therefore dismissed with costs throughout.
Civil review .