This civil revision is directed against the judgment and decree dated 10.10.2015 and 16.10.2012 passed by the learned Courts below whereby the suit filed by the petitioner was dismissed.
2. Both the learned Courts below through concurrent findings have reached to the conclusion in a suit filed by the petitioner for partition of the property left by the predecessor of the parties, that the partial partition of the property is not permissible in law and consequently dismissed the suit filed by the petitioner.
3. As per record, the petitioner filed a suit for partition along with permanent injunction contending therein, that predecessor of the parties to the suit namely Bashir Ahmad left the suit property, which is to be .Partitioned among the legal heirs of late Bashir Ahmad. The suit was contested by the Respondent No, 1, who is real brother of the petitioner and one of the legal heir, through written statement wherein it was averred, that the petitioner while filing the suit has concealed a property/House No, 2/52, village Kalas Wala, Tehsil Pasrur District Sialkot, which was also owned by the predecessor of the parties, therefore, the suit for partition of partial property is not maintainable.
4. The learned trial Court out of controversial pleadings of the parties framed necessary issues, recorded evidence of the parties and finally dismissed the suit on the ground, that as the petitioner while filing the suit concealed one property which is owned by the predecessor of the parties to the suit and partial partition is not permissible in law. An appeal, being aggrieved of the judgment and decree of the trial Court was filed, which was dismissed on the same ground.
5. Learned counsel for the petitioner submits, that the property bearing House No, 2/52, village Kalas Wala, Tehsil Pasrur District Sialkot was not owned by the predecessor of the parties to the case but by Nazir Begum wife of Alam Khan resident of Kalas Wala Tehsil Pasrur District Sialkot.
Learned counsel also referred Rxh.P-2 wherein the name of Nazir Begum is mentioned. Reliance is placed Khawaja Nayyar Qayyum v. Zubair Oayyum (2006 YLR 2059).
6. When it was confronted to the learned counsel for the respondent, the learned counsel had no answer to it but submitted, that the property was'in fact allotted to the father of the petitioner.
7. The concurrent findings of the learned Courts below have been examined with the assistance of the learned counsel for the parties and it appears, that both the learned Courts below have not idverted to this important aspect of the case, therefore, it can -.Onveniently be held that it is case of misreading and non-reading of avidence. Furthermore, the respondent could not place any documentary evidence to show, that the House No, 2/52, Village Kalas wala Tehsil Pasrur District Sialkot is owned by the predecessor of the parties to the case namely Bashir Ahmad.
8. As regard the framing of issues on this point, the learned trial Court, despite the fact not agitated by any party, was not denuded of power to frame issue and decide the same after collecting the evidence of the parties. Needless to mention that only the partition of those properties can be prayed which are owned by the predecessor of 13 the parties, whereas in this case, the house is not owned by the predecessor of the parties and therefore, if the respondent still has any grievance, may approach to the Civil Court.
9. Since both the learned Courts below without perusing the record available on the file have dismissed the suit for partition, through the concurrent findings, which in any case are not sustainable in law, therefore, in order to resolve the controversy and to partition the property owned by Bashir Ahmed, the predecessor-in-interest of the parties to the case, it would be appropriate to remit the matter to the learned trial Court to re-decide the matter after providing fair opportunity of hearing to all the parties.
10. Resultant this petition is allowed, the impugned judgment and decree dated 10.10.2015 and 16.10.2012 passed by the Courts below is set aside and the case is remanded to the learned trial Court to decide the same afresh after providing right of hearing and defending to the parties. No order as to costs.