MIANGUL HASSAN AURANGZEB, J:- Through the instant regular second appeal under Section 100 of the Code of Civil Procedure, 1908 ("C.P.C."), the appellant, Bahria Town (Pvt.) Ltd., impugns the concurrent judgments and decrees dated 28.06.2019 and 22.10.2019 passed by the learned Trial Court and the first Appellate Court, respectively, whereby the suit instituted by respondent No.1, Mirza Zahid Iqbal, for separate possession through partition, declaration, permanent and mandatory injunction was decreed by the learned Trial Court and the appellant's appeal against the judgment and decree of the learned Trial Court was dismissed by the learned Appellate Court.
2. The record shows that vide registered sale deed dated 21.11.2009 (Exh.P/1), respondent No.1 had purchased 4 kanals and 8 1/2 marlas of land in khasra Nos.3307, 3218, 3270, 3217 and 3207 in Mouza Mohrian, Tehsil and District Islamabad ("the suit property"). The said land was mutated in the revenue record in respondent No.1's favour through mutation No.6436. Apprehending his dispossession of the said land at the hands of the appellant, respondent No.1, on 23.09.2015 filed a suit for separate possession through partition, declaration, permanent and mandatory injunction against 48 defendants including the appellant before the Court of the learned Civil Judge, Islamabad. The trial culminated in the preliminary judgment and decree dated 28.06.2019 whereby a decree for separate possession through partition of respondent No.1's land falling in khewat Nos.95 and 96, khatooni Nos.127, 130, 132, 133 and 135, khasra Nos.3218, 3270, 3217, 3307 and 3207 was passed in respondent No.1's favour. Furthermore, the learned Civil Court also passed a decree for restraining the defendants in the said suit from interfering with respondent No.1's peaceful possession of the suit property. The learned Civil Court also appointed a local commission in order to determine whether khewat Nos.95 and 96 could be partitioned. The commission was also required to determine if the land in the said khewats is not capable of being partitioned, what should be the mode of execution. The commission was also to determine the market value of the suit property.
3. The said preliminary judgment and decree was assailed by the appellant before the Court of the learned Additional District Judge, Islamabad. Vide judgment and decree dated 22.10.2019, the said appeal was dismissed. The said concurrent judgments and decrees have been assailed by the appellant in the instant regular second appeal.
4. Learned counsel for the appellant, after narrating the facts leading to the filing of the instant appeal, submitted that through registered sale deed dated 21.11.2009, respondent No.1 had purchased 4 kanals and 8 1/2 marlas of land not just in khewat Nos.95 and 96 but also in khewat Nos.986 and 991; that it is well settled that partial partition of immovable property cannot take place; that respondent No.1 should have, in his suit, sought the partition of the entire immovable property purchased by him through the said sale deed; that respondent No.1 had sought the partition of the land in khewat Nos.95 and 96 but not of the land in khewat No.986 and 991; that in the suit, khewat Nos. 986 and 991 have not been mentioned and their owners have not been impleaded as defendants; that under the provisions of the Land Revenue Act, 1967, partition takes place of khewats and not khasra numbers; and that in fact, respondent No.1 had filed a suit for partial partition, which is not permissible under the law. In support of his submissions, learned counsel for the appellant placed reliance on the judgments reported as PLD 2009 SC 189, 2006 YLR 2289 and PLD 1973 Note 13.
5. Learned counsel for the appellant further submitted that khewat No.95 has 14 khasra numbers but in the plaint partition was sought of land in only 4 khasra numbers; that khewat No.96 comprises bifurcated khasras; that the appellant had filed an application before the learned Trial Court for the summoning of the Halqa Patwari which was dismissed vide order dated 20.06.2019; that the sole ground why the learned Appellate Court did not interfere with the said order dated 20.06.2019 was that the appellant had not mentioned the Halqa Patwari in its list of witnesses; and that the Court is not denuded of its power to call any witness for the just determination of a dispute. Reference in this regard was made to the judgment reported as PLD 2013 SC 255. Learned counsel for the appellant prayed for the concurrent judgments and decrees to be set-aside.
6. On the other hand, learned counsel for respondent No.1submitted that in the suit, a clear reference was made to the sale deed in which all the khewat numbers are mentioned; that the said sale deed was filed along with the suit and tendered in evidence as Exh.P/1; that respondent No.1 had also placed reliance on the mufassil report (Exh.P/2); that respondent No.1 had impleaded all the co-owners as defendants in the suit; that the appellant had filed an application to produce the Halqa Patwari after the stage when the recording of evidence had been completed; that partition of immovable property is to be carried out in the presence of the Tehsildar; and that during the process of partition, all objections of the co-owners can be taken into consideration.
Learned counsel for respondent No.1 prayed for the appeal to be dismissed.
7. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant appeal have been set out in paragraphs 2 and 3 above and need not be recapitulated.
8. Before I delve into the merits of the case, it ought to be borne in mind that the appellant is seeking for this Court to interfere in the concurrent judgments and decrees passed by the Courts below while exercising jurisdiction under Section 100 C.P.C.
9. It is well settled that findings of fact cannot be interfered with while deciding a second appeal under Section 100 C.P.C. However, in the case of Ali Shah Vs. Ghulam Ali (2004 SCMR 1342), it was held that interference in a second appeal can be made if the findings of an Appellate Court not supported by evidence on the record and where the findings are found to be without logical reason or are found to be arbitrary or capricious. In the case of Muhammad Idrees Vs. Mst Uneza Shahid (2004 MLD 1033), it was held that interference in a second appeal was permissible only if the impugned judgment was contrary to law or it had been rendered without deciding some material issue of law or there had been any error or defect of procedure provided by law. In the case of Muhammad Khan Vs. Rasul Bibi (PLD 2003 SC 676), it has been held as follows:- "Ordinarily concurrent findings recorded by the courts below could not be interfered with by the High Court while exercising jurisdiction in the second appeal howsoever erroneous the findings may be, unless such findings had been arrived at by the courts below either by ignoring a piece of evidence on record or through perverse appreciation of evidence. High Court, in the present case, was justified in interfering with concurrent findings, after noticing that the judgments of the courts below suffer from acute miscarriage of evidence and exclusive of material available on the record, resulting in gross miscarriage of justice."
10. There is no denying the fact that 4 kanals and 8 1/2 marlas of land purchased by respondent No.1 through registered sale deed dated 21.11.2009 was situated in different khasra numbers in khewat Nos.95, 96, 986 and 991. In his suit for partition, respondent No.1 had sought partition of the land described in paragraph 1 of the said suit. Respondent No.1 had sought the partition of land falling in khewat Nos.95 and 96 and not in khewat Nos.986 and 991. There is nothing on the record to show that the land purchased by respondent No.1 through the said registered sale deed is one compact piece of land. I am of the view that since respondent No.1 had not sought partition of land falling in khewat Nos.986 and 991, there was no reason for him to implead all the co-owners of the said khewats as defendants in the said suit.
11. Section 135 of the Land Revenue Act, 1967 provides that any joint owner of land may apply to a revenue office for partition of his share in the land if (a) at the date of the application, the share is recorded in the revenue record as belonging to him; or (b) his right to the share has been established by a decree which is still subsisting at the date; or (c) a written acknowledgment of that right has been executed by all persons interested in the admission or denial thereof.
12. Bearing in mind the requirements of the said provision, what respondent No.1 was under an obligation to do was to have impleaded all the co-owners of the land in the khewat of which he was seeking partition. A person may be the owner of un-partitioned land in several khewat numbers. He is not under an obligation to seek partition of his land situated in every khewat. As long as he impleads as defendants in the suit for partition, all the co-owners of the khewat of which he is seeking partition, he will be considered as having acted in compliance with the law.
13. The purpose behind the requirement to implead all the co-owners of a khewat as parties for suit to the partition is that an equal opportunity is given to each co-owner to be involved in the process of partition so that their rights are not transgressed. This principle had adequately been explained by the Hon'ble Peshawar High Court in the judgment reported as Muhammad Ayaz Vs. Zareef Khan (PLD 2016 Peshwar 8), paragraphs 9 and 10 whereof are reproduced herein below:- "9. There is no cavil to the legal proposition that partition has to be sought for all the undivided immovable property, and partial partition thereof would not be competent. With this is another essential requirement that all the co-owners of the said undivided property are to be impleaded in the said suit for partition. The rationale behind these essential requirements is to safeguard all the co-owners from being discriminated and thus the entire corpus is placed in a common pool for the Court to ensure that each co-owner is allotted his share equitably depending on the value thereof, which would surely be dependent upon the area, location and the nature of the property.
This basic principle was discussed in Chandi Shah's case (AIR 1930 Lahore 286), and followed by the superior Courts of our jurisdiction in Jan Muhammad's case (1993 SCMR 1463), Qazi Qaiser Parvez's case (2000 CLC 519) and finally in Ghulam Rasool's case (2006 YLR 2289), wherein the worthy Court reiterated the principle in terms that: "refusal to partition a part of joint holding has wisdom behind it because some parts of the joint holding may be of much more value, as compared to its other parts. Party opting to come for partition should not be permitted to pick and choose and to have share in valuable parts of the joint holdings by leaving out its part with lesser value. Each owner is owner of every inch of joint holding to the extent of his share and thus I am of the considered view that a part of joint holding cannot be permitted to be partitioned."
10. Once it is ensured that all the undivided immovable property has been included and also that all the co-owners have been impleaded in the suit, then the question of legal forum and jurisdiction would arise. Generally, we have two separate forums; the Revenue hierarchy under the West Pakistan Land Revenue Act, 1967 ("Act of 1967") and the Civil Court under the Partition Act, 1893."
14. Since respondent No.1 had sought the partition of his land located in khewat Nos.95 and 96 and since he had impleaded the co-owners of the land in the said khewats, I am of the view that the learned Courts below did not violate any provision of the law in concurrently decreeing his suit for partition. As regards the process of partition, the learned Trial Court had appointed the Tehsildar Islamabad as the local commission to determine whether respondent No.1's land could be partitioned from that of the other co-owners. In this process, the Tehsildar is to associate all the co- owners in order to determine their respective shares in khewat Nos.95 and 96.
15. Respondent No.1 faced with the threat of encroachment over his land. Therefore, he filed the suit for partition on 23.09.2015. He has been subjected to the rigors of litigation before three Courts over a period of almost eight years. This Court is not to set-aside concurrent judgments and decrees or to remand a matter on technical grounds only to add to the woes of respondent No.1 as well as the co-owners of khewat Nos.95 and 96.
16. There is absolutely no question of law involved in the second appeal for me to interfere with the concurrent findings of fact arrived at by the learned Courts below on a proper appreciation of the evidence on the record. I have also been given no reason to interfere with the concurrent orders / judgments passed by the Courts below to dismiss the appellant's application for the production of Halqa Patwari for the simple reason that the appellant had not included the Halqa Patwari in the list of witnesses. Additionally, the application for the production of Halqa Patwari was filed at the tail end of the proceedings and at a stage when the statements of the contesting parties had already been recorded.
17. In view of the above, the instant second appeal is dismissed with no order as to costs.