' ABDUL LATIF KHAN, J.---Through the instant revision petition, the petitioner has called in question the judgment and decree dated 16-6-2011 passed by the learned Additional District Judge-VI, D.I.Khan whereby on acceptance of appeal of respondent No,1, the judgment and decree dated 8- 10-2010 of the learned Civil Judge-VII, D.I.Khan was set aside and suit of the petitioner for declaration-cumperpetual injunction and possession through partition of a house, fully - mentioned in the heading of the plaint, was dismissed.
2. Learned counsel for the `petitioner contended that the learned appellate Court has accepted the appeal without any justification. The statements of official witnesses and the registered deed No,418 dated 11-3-1996 (Exh.P.W.1/2) have been ignored. It was also contended that the registered deed was exhibited without any objection by the other side. He argued that the admission of DW-1 in respect of registered deed No,418 has also been ignored. It was contended that out of six marlas, three marlas were transferred in the name of Ghulam Qasim and three marlas were transferred in the name of petitioner, wherein house of Ghulam Qasim existed at the time of registered deed but the appellate Court has wrongly observed about the ownership of Khuda Bakhsh regarding the suit house. He contended that the appellate Court has wrongly assumed the issue of succession of Khdua Bakhsh, as the same was not available before it. It was argued that the appellate Court has based the findings on misconception about the admission of petitioner that Ghulam Qasim had a daughter, still alive. In fact the stance of the petitioner is that Ghulam Qasim died issueless, however, adopted 2 daughter who is still alive but cannot inherit any share out of the estate of Ghulam Qasim. It was argued that the appellate Court has wrongly reversed the findings of trial Court on issues Nos.4 and 5 and rest of the issues were left unattended and on this score too, the impugned judgment is liable to be reversed.
3. Conversely, learned counsel for the respondent No,1 contended that from the statements of P.W.3 and P.W.4 the relation is not proved. It was also contended that the house in dispute was not owned by Ghulam Qasim, rather it was the ownership of Mst. Hasina Bibi. So far as transfer of six marlas is concerned, the respondents are owners to the extent of 1/2 i,e, three marlas which is not in dispute here and the disputed property is other than that and the petitioner is trying to intermingle the properties. It was contended that the record about 'abadideh' has not been annexed with the file. He supported the judgment of the appellate Court.
4. Learned counsel appearing on behalf of the applicant who has moved CM for impleadment which was allowed subject to all legal and just objections, contended that being sister of Allah Nawaz, she is also entitled to inherit the property out of the legacy of Ghulam Qasim along with Allah Nawaz. He contended that she was supported to be arrayed as party in the lower Court but has been purposely not impleaded in order to get decree in her absence.
5. I have given my deep thought to the arguments of learned counsel for the parties and perused the record with their valuable assistance.
6. Perusal of the record reveals that the petitioner filed a suit for declaration regarding house to the extent of 3/4th share on the basis of being nephew of Ghulam Qasim, original owner of the property and also sought the possession through partition of 3/4th share out of the suit house. It was averred in the plaint that the rest of 1/4th share would go to defendant Mst. Hasina Bibi. It is pertinent to mention that parties claim the inheritance to the extent of 3/4th and 1/4th share which is a declaration un-called for. If the plaintiff was the nephew of the deceased, he could straightaway ask for possession through partition of the suit house, in case he is out of possession.
There is no need of asking declaration about his entitlement as well as the right of defendant. The defendant in her written statement has denied the ownership of the house in favour of Ghulam Qasim, her husband, rather claimed that she was the real owner of the house and the suit of the plaintiff was misconceived. Admittedly, the suit house is situated in 'abadi-deh'. The plaintiff has A not produced any proof regarding the title of Ghulam Qasim. It is also admitted in the evidence that suit house is in possession of the defendant ' Mst. Hasina Bibi, who claims to be the owner of house situated in abadi-deh'. It was the bounden duty of the plaintiff to prove his case. The evidence available on file is also deficient of proof of plaintiff's claim. P.W.3 produced by the plaintiff deposed that the suit house was originally the ownership of Khuda Bakhsh and on his death, three sons. Ghulam Qasim, Sarwar and Allah Nawaz became owners and later on Ghulam Qasim contracted marriage with Mst. Hasina and after that Allah Nawaz purchased Some share from his brother Sarwar. He further deposed that the suit house was in fact owned by Ghulam Qasim and the parties are his legal heirs. The statement of this witness is self contradictory. He has admitted in cross-examination that he knows nothing about the ownership of the suit house nor he has seen the documents in this respect. P.W.4 produced by the plaintiff, deposed that the original owners of the house were Khuda Bakhsh, Sarwar and Ghulam Qasim who were brothers inter se and Allah Nawaz happens to be the son of Khuda Balohsh. This deposition is in total conflict to P.W.3, meaning thereby that both the witnesses are unaware of even relations of the persons named therein. P.W.5 has given a different account of the matter. Apart from this, plaintiff himself appeared as P.W.6. No documentary evidence has been produced about the ownership of Ghulam Qasim or for that matter, the father and brothers of Ghulam Qasim and as such has failed to prove the case to the extent of ownership of Ghulam.
Qasim.
7. Mst. Shahnaz Bibi was not party to the proceedings. She has moved the application for the first time before this Court which was allowed subject to all legal and just objections. The petitioner has seriously objected her locus standi. Despite the fact that she is real sister of the petitioner, he denied her right by referring to the Mohammadan law wherein the niece has not been given share out of legacy of paternal uncle in case where the nephews are available. Though the provisions referred are relevant to this extent, but as the plaintiff has not proved the ownership of Ghulam Qasim over the suit property nor his relation with him, therefore, the question of her entitlement does not arise.
8. So far as the relation with Qasim is concerned, no pedigree table has been produced nor any other documentary evidence has been brought on file to the effect that he was the actual nephew of said Ghulam Qasim and was the sole legal heir to be entitled to 3/4th share. The stance of the plaintiff in the light of Exh.P.W 1/1 and Exh.P.W.2/1, vide which he claims to have purchased six marlas of land by him and Ghulam Qasim negates the version of the plaintiff made in the plaint. The perusal of these documents reveals that both of them are owners to the extent of 1/2 share each, but the averments of plaint show that he claims ownership to the extent of 3/4th share out of the entire house on the basis of his entitlement as legal heir, which is clear violation of his stance that the house was purchased by dint of Exh.P.W.1/1 and Ex,P.W.2/1 by him and Ghulam Qasim to the extent of equal shares i,e, three marlas each. Had it been the case of plaintiff that he is entitled out of half of the house measuring three marlas to the extent of 3/4th share, the matter would have been altogether of different significance, but this grave self contradiction alone is sufficient to non- suit the plaintiff. The learned trial Court has not considered this vital aspect of the case and has wrongly observed about the entitlement of the plaintiff which was rightly upset by the Court of appeal, to which no exception can be made.
9. For the reasons mentioned above, the instant petition being bereft of any merit is hereby dismissed with no order as to costs.