ANWAAR HUSSAIN, J.---The petitioners before this Court instituted a suit for possession through partition against the respondents regarding the land measuring 14-Marlas, 2325/6912th share of the total land, measuring 02-Kanals, situated in Square No.106, Acre No.13/1, Mouza Khumb Khurd, Tehsil and District Mandi Bahauddin as per record of rights for the year 1992-93, which was decreed vide judgment and decree dated 31.10.2012 in favour of the petitioners and the findings have been reversed through the impugned judgment and decree dated 26.06.2015 by the learned Appellate Court below on the ground that the property is agriculture in nature and the suit for partition was not maintainable.
2. Learned counsel for the petitioners submits that the judgments of the learned Courts below are at variance and the impugned judgment is result of mis-appreciation of record. Adds that the disputed property is adjacent to the village, hence, the suit was rightly instituted.
3. Conversely, learned counsel for respondents submits that the property is agriculture in nature and falls in Khewat No.124 and total land has not been included by the petitioners and partial partition is not permissible. Adds that the petitioners have opted to institute the suit instead of approaching the revenue hierarchy for partition, which is the competent authority in effecting partition of agricultural land.
4. Arguments heard. Record perused.
5. The petitioners/plaintiffs averred in the plaint that the suit land is a Haveli and part of village site and is not under cultivation for a long period and the respondents are adamant to raise construction on the joint property and alienate the same whereas the petitioners/plaintiffs are unable to enjoy any benefit from the suit property lawfully owned by them, therefore, the same should be partitioned. Conversely, it is the case of the respondents/defendants that they are not raising any construction and merely a Dera has been constructed on the property, which was made for agricultural purposes as a saw machine has been installed thereon and hence, suit was not maintainable. Issue No.1 framed by the learned Trial Court pertains to the maintainability of the suit, whereas, issue No.4 had been framed in the terms to examine whether the petitioners/plaintiffs are entitled to possession through partition after removing the superstructure available on the disputed property. Onus to prove issue No.4 was on the petitioners/plaintiffs.
Admittedly, the suit was to the extent of Square No. 106, Acre No.13/1, land measuring 02-Kanals as per record of rights for the year 1992-93 situated in Mauza Khumb Khurd and it finds mentioned in the plaint that the suit property is adjacent to the Abadi Deh/Mutsila Abadi Deh Meaning thereby that it is not in fact located within the Abadi Deh and hence, does not form part of the Laal LakeerExh.D-1 is the Jamabandi for the years 2004-05 in which the said land is mentioned as Ghair Mumkan Dera, which also substantiate the stance of the respondents that it is not part of Abadi Khewat in which the disputed property is situated consists of 32-Kanals out of which the disputed property measuring 02-Kanals and 08-Marlas is recorded as Ghair Mumkan Dera, which fact has not been mentioned in the plaint. Learned Appellate Court below observed that the complete picture of the disputed Khewat has not been disclosed before the learned Trial Court. These facts along with the oral evidence led by the respondents persuaded the learned Appellate Court below to reverse the findings of the learned Trail Court by putting forth cogent reasons, which have been encapsulated in the following terms: "10........So, it meant it is not part of Abadi Deh. Plaintiff has tendered Exh. P-1 while in rebuttal, Exh.D-1 has been tended (sic) in evidence which is jamabandi for the years 2004-05 in which 02 kanals 08 marlas land is mentioned Ghayr Mumkan Dera while this khewat consists of 32 kanals along with 03 kanals 08 marlas. So, it is not Abadi Deh, Ghair Mumkan Abadi, total detail of khewat has been concealed by plaintiff as is evident in Ex.P-1 in this khewat the major portion of the property is agriculture and only.02 kanals 08 marlas is recorded as Ghayr Mumkan Dera. Plaintiff himself mentioned the suit property as havaili where Dhara, one room, one room of Engine and foundation for the rooms have been construction, so plaintiff has only choose one khasra from the khewat which is Ghayr Mumkan havaili/dera and it has not been included in Abadi Deh/Red line. So, without complete land of the khewat, partition cannot be entered by meets and bounds. As discussed above, 02 kanals 08 marlas is minor portion in the khewat wherein major partition is agricultural land and it is irrigating of Raj Bah Mianwal and the minor portion will go with the major portion of the land, Dera/havaili is part and parcel of the agricultural land, as the parties used to construct their dera for the agricultural purpose, it is not proved that it is meant for residential purpose, type of construction shows it is for agricultural purpose. So, this property, so this, property
(sic) is also meant for the agricultural purposes mentioned in Exh.D-2, it is also recorded as Ghayr Mumkan land 01 kanal 08 marlas."
Oral evidence Pw-1 stated that the suit property is near to the village.
"Boundary wall has been constructed Saw machine has been installed and foundations of the rooms have been constructed, so it also proved that suit property is not village site rather it is a dera and plaintiff has purchased during pendency of suit property, they have purchased the share of Sardara it means that they choose to get the possession where Sardara was in possession as they will step into the shoes of Sardara."
The above quoted operative part of the impugned judgment is self-explanatory. There is also no denial that the petitioners purchased the property during the pendency of the suit from Sardara and while evaluating the evidentiary resume, the learned Appellate Court below concluded the matter in the following terms: "10 .......PW-2 also stated that Sardara and defendants have land in the joint khata and constructions are of the defendants. He has also disclosed that there is one room, Dhara, Engine and boundary wall, foundations of the rooms are constructed, so this oral evidence further reveals that nature of the construction is of Dera and not of Residential building falling within definition of the village site, this type of construction is raised for agricultural purposes not for residential purposes in the agricultural land. So, plaintiff fails to establish i. that property is village site. ii. plaintiff has not included the total land of the joint khata and partition cannot be effected by all meets and is bounds without including total land of the impugned khewat, no pick and choose can be made and no effective partition is possible without partition of the complete khewat and if land of complete khewat is considered, it is agricultural land mainly, and only the disputed property/suit property is of Ghayr Mumkan Dera so, this is part and parcel of the agricultural land and Revenue Court will have the jurisdiction to partition the disputed Khewat."
(Emphasis supplied)
6. Preponderance of evidence indicates that the petitioners failed to establish their case and the learned Appellate Court below has analyzed the same through cogent reason and has rightly reversed the judgment and decree of the learned Trial Court and dismissed the suit of the petitioners after proper appraisal of evidence. Even otherwise, it is well settled law that in case of conflicting judgments of Courts below, the findings of the learned Appellate Court below are to be preferred and respected than that of the learned Trial Court unless it is shown from the record that such findings are not supported by evidence or the conclusions drawn are against the material on record or the judgment of the learned Appellate Court suffers from misreading or non-reading of evidence or that the reasons recorded for reversal of judgments of Trial Court are arbitrary, fanciful and perverse. Any guidance needed in this regard can be sought from cases reported as "Enayat, Sons (Pvt.) Ltd. v. Government of Pakistan through Secretary, Finance and others" (2007 SCMR 969) and "Amjad Ikram v. Mst. Asiya Kauser and 2 others" (2015 SCMR 1). Learned counsel for the petitioners has failed to point out any defect in the impugned judgment of the learned Appellate Court below, hence, no interference is warranted.
7. For what has been discussed above, this civil revision has no merit. The same is accordingly dismissed.