MAHMOOD AHMAD BHATTI, J.---This revision petition is directed against the judgments and decrees dated 13.10.2004 and 07.07.2005 passed by the learned Civil Judge, Shujabad and an Additional District Judge, Shujabad, District Multan, respectively whereby suit for declaration and possession through partition along with perpetual injunction was dismissed and an appeal preferred thereagainst was dismissed as well.
2. In a nutshell, the case of the petitioners/plaintiffs is that Captain Shadi Khan was owner in possession of a house bearing 176/A, situated in Ward No,5, Railway Road. He was survived by four sons and six daughteRs, The plaintiffs are the legal heirs of Muhammad Sadiq, one of the sons of late Captain Shadi Khan. It is maintained in the plaint that private partition was effected between the respondent and the plaintiffs. It is also asserted by them that by virtue of the private partition, they have been in possession of a shop No,3. However, they are entitled to 1/7th share of the house described above. On the basis of these averments, a declaration was sought that the plaintiffs were owners in possession of shop No,3, whereas they were entitled to 1/7th share of house No,176/A, which was shown in red in the rough site plan annexed to the plaint. As a consequential relief, possession of the share of the house falling to their lot was sought. In the alternative, it was prayed that partition of house No,176/A be made, separating the share of the plaintiffs from that of the respondent.
3. The defendant entered appearance and filed written statement, denying their claim regarding house bearing No,176/A, situated in Ward No,5, Railway Road. At the same time, it was maintained by the respondent/defendant that the co-sharers made a private partition some 22 years prior to the institution of the suit and they have ever since been acting upon the same.
4. Given the divergent pleadings of the parties, following issues were framed by the learned trial Court on 04.09.2000.
ISSUES:
1. Whether the plaintiffs are entitled to the decree for partition as prayed for ? OPP
2. Whether the plaintiffs have no cause of action? OPD
3. Whether the suit is barred by limitation? OPD
4. Whether the suit is under valued for the purpose of Court Fee and jurisdiction? OPD
5. Whether the defendant is entitled to special costs under Section 35-A of C.P.C.? OPD
6. Relief.
5. Issue No,5-A was added in the wake of a direction issued by the learned appellate Court vide judgment and decree dated 03.05.2003, which reads as under:-- Issue No, 5-A.
Whether the partition of the suit property took place according to family settlement the possession was delivered in view of the same. If so, its effect? OPD
6. In support of their respective pleas, the parties led pro and contra evidence. One of the plaintiffs, namely, Muhammad Mukhtar appeared as P.W.1. He also produced Sufaid Khan as P.W.2 and Riaz Ahmad as P.W.3. In documentary evidence, he got exhibited the rough site plan of the suit house as Ex.P.1, a copy of PTD issued in favour of Captain Shadi Khan, predecessor-in-interest of the parties as Ex.P.2 and a copy of a Hiba Nama as Ex.P.3. In rebuttal, the defendant/ respondent examined himself as D.W.I.
7. The learned trial Court seized of the suit dismissed it vide judgment and decree dated 08.11.2002.
Feeling aggrieved, the petitioners herein preferred an appeal, which was allowed vide judgment and decree dated 03.05.2003, remanding the case to the learned trial Court for decision afresh, after the framing of an additional issue No,5-A and allowing the parties to produce additional evidence, if they so desired.
8. Pursuant to the remand order, the learned trial Court struck issue No,5-A which has been produced hereinabove.
9. In post-remand proceedings, Muhammad Mukhtar re-appeared as P.W.4 and also produced Muhammad Suleman as P.W.5. He also brought on record a number of documents, which were exhibited as Ex.P.4 to Ex.P.9. However, the respondent/defendant took strong exception to the admissibility of Ex.P.4, the purported deed of private partition between the parties to the suit. Be that as it may, the learned trial Court deferred its decision as to its admissibility until the final judgment and decree to be passed.
' As against the evidence produced by the plaintiffs, the defendant examined his two sisters, namely, Fatima Khanum and Mehmooda Begum as D.W.2 and D.W.3, respectively, who testified that their father had left a house and four shops as a bequest. Each son was given one shop, while the six sisters were held entitled to the house lying behind the four shops. It was further deposed to by them that all the sisters transferred their respective shares in the house to the defendant.
Mehmooda Begum, D.W.3 also stated in her examination-in-chief that the price of every shop is more than the price of the house as a whole.
10. The suit of the plaintiffs was dismissed again by the learned trial Court vide judgment and decree dated 13.10.2004. Once more, they preferred an appeal to call into question the validity thereof, which was also dismissed by an Additional District Judge, Shujabad, District Multan vide judgment and decree dated 07.07.2005. Hence this revision petition.
11. Learned Counsel for the petitioners submits that Ex.P.4 was allowed to be brought on record without any objection. Therefore, the mode of proving it was waived by the respondent/defendant.
Now it is too late in the day to turn around and to raise objection to its admissibility. It is further argued by him that it is common ground between the parties that in the wake of the death of Shadi Khan, his bequest was divided amongst his legal heirs through a family settlement. The case of the petitioners is that that arrangement was reduced into writing, whereas the case of the defendant/respondent is that the family settlement was never reduced into writing.
12. On the other hand, it is forcefully contended by the learned counsel for the respondent that the petitioner did not make mention of the family settlement in writing in their plaint nor did they annex the copy thereof to the plaint nor did they enter the same in the list of reliance furnished under Order VII, Rule 14, C.P.C. It is stressed by him that Ex.P.4 was not produced in the affirmative evidence and. Under no circumstances could it be allowed to be produced at the stage of rebuttal. It is also pointed out by him that had this document been in existence it could have been put to Muhammad Aslam D.W.1 as well as to other D.Ws, who were none other than the real sisters of the defendant. It is elaborated by him that under Article 140 of the Qanune-Shahadat Order, 1984 it was incumbent upon the petitioner to confront Aslam and others with Ex.P.4, allowing them an opportunity to explain it away. Learned counsel for the respondents adds that Muhammad Sadiq, predecessor-in-interest of the petitioners remained alive for over two decades, but in his lifetime he did not challenge the private partition. Therefore, the petitioners are estopped by their own words and conduct to institute the suit.
' Exercising his right of rebuttal, learned counsel for the petitioners submits that once a document is brought on record and got exhibited without any abjection, no objection can be raised to its admissibility afterwards.
13. I have heard the learned counsel for the parties and perused the record with their assistance.
14. The plaintiffs were rightly non-suited by the learned trial Court and their appeal deserved to be dismissed for a variety of reasons:
(i) The plaintiffs themselves set up the case that a private partition of the bequest of Captain Shadi Khan had taken place. According to them, they came into possession of shop No,3 by virtue of that private partition. However, when Muhammad Mukhtar, one of the plaintiffs appeared as P.W.4, he flatly and stubbornly denied the partition of the property. It goes without saying that the plaintiffs attempted to improve upon their case, which is not permissible under the law of the land;
(ii) The plaintiffs did not make mention of any writing in the plaint regarding the private portion of the property, indicating and confirming that the private partition stated to have been effected between the parties to the suit was not reduced into writing. They did not produce any such document in pre-remand proceedings, resulting in the dismissal of their suit vide judgment and decree dated 08.01.2002. However, they came up with Exh.P.4 in the post-remand proceedings, making it the anchorsheet of their case. Had this document been in existence, a copy thereof would have been annexed to the plaint or at least reliance thereon could have been made under Rule 14 of Order VII, C.P.C. The very fact that it was never put to the defendant or to any of his witnesses in terms of Article 140 of the Qanun-eShahadat Order, 1984 casts doubts on its genuineness. The learned trial Court rightly discarded this document and the learned appellate Court rightly did not find fault with the approach so adopted by the Court below; v. It is in the evidence that Captain Shadi Khan passed away in 1978. His son, Muhammad Sadiq, predecessor-in-interest of the petitioners remained alive for 20/22 years after his death. In his lifetime, he did not object to the possession of the defendant/ respondent of one of the four shops nor did he raise so much as a little figure at the transfer of the house to him by his sisters, meaning thereby that there did take place a family settlement between the brothers and they continued enjoying possession of one shop each in accordance therewith, but the plaintiffs did a U-turn and preferred to institute the suit by repudiating the family settlement reached between the offspring of Captain Shadi Khan.
(iv) It can not be lost sight of that two brothers and six sisters of the defendant never came forward to join in the proceedings. Contrarily, the defendant/respondent examined two of his sisters, who stoutly opposed the claim of the plaintiffs, siding with the defendant.
15. From the evidence produced by the parties, it is clearly established that a family settlement had taken place, but it was never reduce into writing. Each son got one shop, whereas six daughters of Captain Shadi Khan got one house as a whole. In paragraph No,2 of the plaint, it was averred by the plaintiffs themselves that the other legal heirs of Captain Shadi Khan had already transferred their respective shares to the defendant/respondent and for the very same reason they were not being arrayed as parties to the suit. This admission on their part reinforces the claim of the respondent regarding the family settlement and its having gone into effect. Since the plaintiffs had themselves spoken of some sort of private partition, I need not dwell upon the same.
16. As noted herein above, Mehmooda Begum, D.W.3 stated that the value of each shop was more than the value/price of the whole house. Curiously enough, her testimony on this vital aspect of the case was not challenged in the course of cross-examination, meaning thereby that her veracity remained unshaken. That is why the learned appellate Court attached importance to this aspect of the case. The learned counsel for the petitioners did not pick holes in the relevant part of the judgment passed by the learned appellate Court.
17. At this juncture, it would be advantageous to make reference to the judgment of Hon'ble Supreme Court of Pakistan reported as "Allah. Dad and 3 others v. Dhuman Khan and 10 others"
(2005 SCM R 564), in which the value and object of a family settlement was commented in the following words:-- "It is to be seen that the object behind the family settlement is always to settle existing or future dispute of the property amongst the members of family and to create goodwill and avoid future disputes between the successors-in-interest. The bona fide transaction of family settlement would be binding on the parties and if the settlement by conduct of parties, is capable of receiving constant recognition for a long time, the right to assert under the agreement must not be subsequently allowed to be impeached and Courts may not reject the family settlement on technical grounds."
18. The concurrent findings recorded by the learned Courts below are not open to challenge, particularity when they have not been shown either to the contrary of the record or offensive to the law of the land. IE In this respect, reliance may well be placed upon the judgment reported as "Mst.
Zait000n Begum v. Nazeer Hussain" (2014 SCM R 1469), in which the Supreme Court held that such findings are not open to interference in limited jurisdiction of the High Court, albeit they are, to some extant, erroneous both on points of facts and law.
19. In the case of "Noor Muhammad v. Mst. Azmat Bibi" (2012 SCM R 1373), it was observed that "Concurrent findings can not be disturbed in revisional jurisdiction unless Courts below, while recording findings of fact had either misread the evidence or had ignored any material piece of evidence or those were perverse and reflected some jurisdictional error".
20. In the case of Administration Thal Development Authority (2012 SCM R 730) it was held that "Revisional jurisdiction is meant for correction of jurisdictional defects/errors and material illegalities/ irregularities, resulting in miscarriage".
21. In the afore quoted judgment of Allah Dad's case (2005 SCM R 564) one comes across the following observations of the Hon'ble Supreme Court of Pakistan regarding the scope of revisional jurisdiction:-- "This is well-accepted rule that revisional jurisdiction is meant primarily for correction of errors made by the subordinate Courts in the exercise of jurisdiction and the proceedings conducted by the said Courts but the finding of fact is not open to challenge and correction in revision unless it is shown to be not based on any evidence or suffering from non-reading or misreading of evidence.
This is settled law that erroneous conclusion of law and fact can be corrected in appeal and a revision is not competent in such matters but an erroneous decision on a point of law or fact in consequence to which Court assumes or declines to assume jurisdiction is revisable, therefore, the finding of fact even if erroneous, cannot be disturbed in the revisional jurisdiction unless it is shown that the same was the result of misreading or non-reading of evidence."
22. The upshot of the discussion made above is that there is no merit in this revision petition, which accordingly is dismissed, with no order as to costs.