' The appellant above-named, being aggrieved by judgment dated 19th July, 1980 passed by the learned 1st Additional District Judge, Karachi, in Civil Appeal No, 14/79, by which he allowed the said appeal filed by the respondents and set aside the judgment and decree dated 22nd October, 1978 passed by XXVIth Civil Judge Second Class, Karachi, in Suit No, 777/75, has preferred this Revision petition, on the following facts and grounds :-
2. Brief facts of the case of the appellant are, that she is the real sister of respondents, who jointly inherited half of the plot No, 79 sheet No, LY-12, measuring about 657 Sq. Yds. Alongwith her, from their father Ali Muhammad. It was further alleged that said plot was privately partitioned between her father Ali Muhammad and her uncle Usman in their lifetime by partition wall. The appellant and respondents are Hanafi Muslim, and according to Hanafi Muslim Law, she is entitled to 1/5th share in the divided plot bearing private No, 79/2 as well as she is entitled to rents and profits in respect of her said share in the said plot No, 79/2. She has further stated, that the part of the plot is rented to 3 tenants from whom, the respondent No, 1 realises rent amounting to Rs, 170 per month, since the death of her father. Out of which, she is entitled to get Rs, 34 per month.
3. The respondents in their written statement raised objections to the non-maintainability of the suit, etc. Have denied all other allegations levelled against them. Respondents above-named further raised the plea, that husband of appellant while raising dividing wall between plots Nos. 79/1 & 79/2, each measuring 3281 Sq. Yds. About 10 or 12 years prior to filing of the suit in question had encroached upon 40 Sq. Yds. Of plot No, 79/2 and since Mst. Fatema, and Mst. Aisha, as daughters of Usman, had inherited together 657 Sq. Yds. Of plot No, 79/1 and consequently appellant's 1/5 share in plot No, 79/2 measuring about 65 Sq. Yds. And income thereof was adjusted by family settlement against the said encroachment and share of Mst. Fatema and Mst. Aisha and as such appellant is not entitled to partition of her share in plot No, 79/2 and to income thereof, in view of this family settlement, which has been acted upon since last over 10/12 years, between the parties.
The respondents further alleged that they spent Rs, 10,000 on present constructions standing on plot No, 79/2 and have been paying all property taxes on the said plot.
4. On the above pleadings of the parties, the learned trial Court framed the following issues :-
(1) What is the share of the appellant/plaintiff in half portion of the plot No, 79, sheet No, LY-12 ?
(2) Whether the suit as framed is not maintainable ?
(3) What monthly rent is being realised from the tenants by respondent No, 1/Defendant No, 1.
(4) Whether the suit is bad for non-joinder of necessary parties ?
(5) Whether the appellant/plaintiff is entitled to occupy the disputed tenements ?
(6) Whether respondent No, 1/Defendant No, 1 is liable to render accounts of rent and if so, from what date ?
(7) Whether the suit is not properly valued and proper Court fee had not been paid ?
(8) Whether the respondent/defendants are entitled to any share in the rent realised by the successors of late Muhammad Usman, son of Ahmad and the appellant/plaintiff if so, to what share and its effects ?
(9) Whether the successor of late Muhammad Usman, son of Ahmed and appellant are in possession of excess area. If so, to what effect ?
(10) What should the decree be ?
5. The plaintiff/appellant and defendants/respondents examined themselves in support of their respective claims.
6. The learned trial Court after considering the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decreed appellant's suit with cost and further ordered the preliminary decree to be prepared for taking accounts and to partition the suit property in terms of the said decree and appointed Mr, S. A. Chuhan, Advocate, as Commissioner for the said purposes and directed him to submit his report within one month.
7. The respondents above-named, being aggrieved by the above-mentioned judgment and decree, of the XXVIth Civil Judge, Karachi filed a Civil Appeal No, 14/79, in the Court 1st Additional District Judge, Karachi which was allowed by learned Additional District Judge, Karachi, vide his judgment dated 19th July, 1980 by which he set aside the preliminaty decree and dismissed the appellant's suit with cost. Learned Appellate Court further directed recovery of Court fee of Rs, 1,860 from the appellant.
8. The appellant above-named, being aggrieved by the impugned judgment dated 19th July, 1980 of the learned 1st Additional District Judge, Karachi, has filed the above Revision Petition, on the following grounds
(a) That the judgment of the learned Appellate Court is patently illegal and against the facts and law involved in the suit.
(b) That the learned Appellate Court has misread the evidence on record and the judgment is out of sight of the evidence available on record.
(c) That the learned Appellate Court had erred in holding that the Appellant is in possession of 40 Sq. Yds. And that the same is an admitted position.
(d) That the plot in dispute has been legally partitioned and the learned Appellate Court has wrongly held that the same has not been partitioned.
(e) That the heirs of the deceased Usman are not necessary party, as no claim is lodged against them and the learned Appellate Court has wrongly held so, as all parties of deceased Ali Muhammad had been joined in the suit.
(f) That on issue No, 7 the learned Appellate Court has directed the appellant to pay Court fee for 20 years, when the suit was filed on 1st April, 1975.
(g) That the judgment, of the learned Appellate Court is based on conjectures and surmises.
(h) That other and further grounds shall be urged at the time of final hearing.
9. I have heard the learned counsel for the parties and have gone through the evidence adduced before the learned trial Court as well as through the judgment of both the learned lower Courts.
10. The main contention urged by the learned counsel for the appellant was, that the learned Appellate Court has misread the evidence on record and the judgment of the learned First Appellate Court is contrary to the evidence on record. In support of this contention, learned counsel submitted, that learned First Appellate Court has come to the conclusion, that the appellant has admitted to be in possession of 40 Sq. Yds. Of the land from the privately partitioned area inherited by the father late Ahmed and stated that there is no such admission in the statement of the appellant. The second contention that has been urged by her learned counsel was, that the disputed entire plot was legally partitioned, as it is evident from the statements adduced before the learned trial Court, btd in spite of this, the learned First Appellate Court has come to the conclusion, that there was no such partition of the original entire plot No, 79 and consequently it has come to a wrong conclusion, that the heirs of deceased Usman were necessary party, to appellant's suit. The third contention that has been urged by the learned counsel was, that the learned First Appellate Court has directed the appellant to pay Court fee, on the basis of 20 years rent, when the suit was filed on 1st April, 1975. Finally the learned counsel urged, that the Judgment of the First Appellate Court is based on conjectures and on surmises only and as such it cannot be sustained and is liable to set aside by this Court.
11. Learned counsel for the respondents on the other hand submitted, that the suit filed by the appellant was clearly time-barred under Article 120 of the Limitation Act, which was applicable to the said suit and although this plea was not taken specifically by the respondents, the learned lower Courts ought to have taken into consideration this legal position, as it was evident from the facts brought on record. Beside this, learned counsel submitted, that the learned First Appellate Court has correctly read the evidence on record and its findings are based on evidence on record as such they are not to be set aside in this Revision Petition, when prima facie there is no illegality and/or material irregularity in the judgment of the learned First Appellate Court. Learned counsel further submitted, that the learned trial Court misread the evidence on record and came to a wrong conclusions consequently and decreed the appellant's suit, whereas the learned First Appellate Court has correctly read and appreciated the evidence on record and has come to the conclusions which are based on the evidence on record and are correct. Learned counsel further submitted, that this is a Revision Petition and unless the learned counsel for the appellant pointed out illegality and/or material irregularity in the judgment of the learned First Appellate Court, which he failed to do so, the judgment of the learned First Appellate Court cannot be set aside in this Revision Petition and in support of these contentions of his, learned counsel has relied on cases reported in PLD 1964 Kar. 149, PLD 1964 SC 97, PLD 1975 Kar. 26, PLD 1980 Pesh. 82, 1980 CLC 237 and PLD 1980 Kar. 296 and submitted that the above petition is liable to be dismissed.
12. I have carefully considered the above submission made by the learned counsel for the parties and have gone through the authorities cited by the learned counsel for the respondents.
13. It is an admitted position that plot No, 79 Sheet No, LY-12. Measuring 657 Sq. Yds. Originally belonged to one Ahmed son of Haji Juma and on his death, the said entire plot was inherited by his two sons, namely, Ali Muhammad and Muhammad Usman in equal share. It is further admitted position, that the said plot was officially divided between the heirs of late Ali Muhammad on one hand and late Muhammad Usman on the other band and the compound wall was built between the divided portions and the heirs of deceased Ali Muhammad and Usman eversince construction of the said dividing wall are in exclusive possession of the said divided plots. However, the respondents raised the plea, that in raising the compound wall between the two partitioned portions, 40 Sq. Yds. Belonging to the portion of Plot No, 79/2 which came to the lot of the heirs of A deceased Ali Muhammad, were encroached upon by the husband of appellant and further Mst.
Fatima and Mst. Aisha daughters of late Usman had inherited 657 Sq. Yds. In Plot No, 79/1 and consequently on account of family settlement, the share of the plaintiff in the area numbered as 79/2 of the said entire plot was fully adjusted against this encroachment and against the shares of Mst. Fatima, the wife of respondent No, 1 and Mst. Aisha, in view of this appellant was not entitled to ask for partition of her share and/or for the accounts in respect of income of her share of Plot No, 79/2, which is in exclusive possession of the respondents, since over 10/12 years, on account of family settlement in question.
14. It is also admitted position that after appellant's suit was decreed, by the learned trial Court, respondents and other legal heirs of Usman have filed Suit No, 1333/79 in the Court of Second Civil Judge, First Class, Karachi, in March, 1979 for partition and possession of 52.5 Sq. Yds. Plus 8 Sq. Yds.
On account of inheritance from Mst. Fatima and Mst. Aisha daughters of Muhammad Usman and on account of encroachment made by the heirs of .Late Muhammad Usman on Plot No, 79/2, from Plot No, 79/1, and for accounts of their said shares, from the heirs of the late Muhammad Usman and appellant above-named, which is still pending.
15. Keeping in view the above factual position and admitted facts and having perused the copy of plaint and written statements filed in suit in question I find both the parties admit, that original plot No, 79 measuring 657 Sq. Yds. Was divided equally between the heirs of Ali Muhammad and Usman in equal shares after their death and partition wall was raised to divide both the portions, unofficially numbered as 79/1 and 79/2, by the parties about 10/12 years, prior to filing of suit. It is also admitted position, that on account of said dividing wall 40 Sq. Yds. In excess have gone to Plot No, 79/1, which is in possession of the heirs of late Usman. There is also no dispute, that the share inherited by appellant in the plot No, 79/2 in question is I/5th only, according to Hanafi Law, which is applicable to the parties.
16. Therefore in my opinion, the real dispute between the partie before the learned trial Court was, whether appellant's 1/5th share in Plot No, 79'2 stood fully accounted for on account of the pleas raised by the respondents in their written statement or appellant was entitled to partition of her share and accounts, as claimed in the suit. Unfortunately the learned trial Court, while disposing of Issue No, '3, did not consider this aspect at all, which arose from the pleadings of the parties, and could have been determined under Issue No, 8, but the learned trial Court in view of its conclusions, that respondents did not file counterclaim in the said suit, by paying requisite Court-fee, it gave no finding on this issue at all. However the learned appellate Court, considered this aspect of the case, while discussing issues Nos. 1 and 5 and came to conclusion, that I/5th share of the appellant stood accounted for by respondents, who proved family settlement as alleged in their written statement and as such appellant was not entitled to any relief claimed by her said suit. I see great force in this conclusion arrived at by the learned Appellate Court, which is based on the evidence adduced by the parties and on the basis of cogent reasons given in the impugned judgment by the learned appellate Court, while arriving at this conclusion on Issues Nos. 1 and 5. I find no illegality and/or material irregularity in this conclusion arrived at by the learned Appellate Court.
17. In view of above finding on Issue No, 5, by the learned appellate Court, the finding of appellate Court, on Issue No, 4 is contradictory and as such cannot legally be sustained, according to learned Advocate for the applicant. I agree with the contention of the learned Advocate for the applicant, and as such I set aside this finding of learned Appellate Court on this issue, and uphold the finding of the learned trial Court on this issue that appellant's suit is not bad for non-joinder of necessary parties.
18. Similarly the finding of the learned Appellate Court on Issue No, 7, that appellant should have valued her suit at Rs, 88,160 on the basis of 20 years rent of her alleged share at the rate of Rs, 34 per month, also cannot legally be sustained. According to the learned Advocate for the applicant. I agree with this contention of the learned Advocate for the applicant, for the reasons as applicant's suit has been dismissed for accounts and as such tentative valuation put by the applicant to the relief of accounts, was in accordance with law and since her suit for accounts has been dismissed, applicant cannot be called upon to pay Court-fee on the basis of Rs, 8,160 as held by the learned Appellate Court and as such I set aside the finding of the learned Appellate Court on Issue No, 7, as the same is not legally maintainable. Since applicant's suit is dismissed on other grounds. It is not necessary to consider plea of limitation raised by learned counsel for respondent.
19. In view of my findings on issues Nos. 4 and 7, I hold, that abo Revision Application was legally maintainable and cases relied upon by the learned Advocate for respondent in this connection, are not applicable t the above petition, as findings of the learned Appellate Court on Issue Nos. 4 and 7. Suffer from material iregularity.
20. In view of my above conclusions and findings, I uphold the impugned judgment dated 19th July, 1980 of the learned 1st Additional District Judge, Karachi, with above modification in 'respect of findings on issues Nos. 4 and 7 only.
21. The above revision petition stands disposed of in the terms of the above order, with no orders as to cost.