' ABDUL QADEER CHAUDHRY, J.--- This appeal has arisen out of the following facts:--
1. All the appellant and respondents are the successors of late Haji Muhammad Hussain. Mst. Bilquis Sultana respondent No,6 is the daughter of Mst. Inayat Begum (deceased) daughter of late Haji Muhammad Hussain. The respondent brought a suit for Partition, Administration and Rendition of Accounts in respect of the property left by the deceased Haji Muhammad Hussain. The description of the property is mentioned in the plaint. The suit was contested by the appellant. Various issues were framed on the pleadings of the parties.
2. The suit of the plaintiff was decreed for partition of the joint properties and the appellant was also held an accounting party, except that the superstructure on the vacant plots was held to belong to the appellant.
3. Aggrieved by the judgment and decree of the trial Court, the appellant filed an appeal before the learned Additional District Judge, upholding the finding of the trial Court on all issues, except the plot of land measuring 2 Kanals 19 Marlas situate in Khasra No,2124/38, Begum Kot, Lahore, was held to belong to the appellant.
4. Against the judgment and decree of the learned Additional District Judge, two appeals were filed one by the appellant (R.S.A. No,182 of 1985) and the second by the contesting respondents (R.SA.
No, 143 of 1985) in the Lahore High Court. The High Court dismissed the Appeal No,182 of 1983 filed by the appellant and accepted Appeal No,143 of 1985 filed by the respondent and set aside the judgment and decree of the learned Additional District Judge, with regard to the plot measuring 2 Kanals 19 Marlas and the judgment of the trial Court was restored.
5. This appeal relates to 2 Kanals 17 Marlas which was decided by the first Appellate Court to be the property of the appellant.
' The learned counsel for the appellant has submitted that the learned High Court misread the evidence on record. There is sufficient material to substantiate the contention that the appellant is the owner of the land in dispute. The learned Additional District Judge has given sound reasons in support of such finding and this finding of fact cannot be disputed by the High Court in second appeal. There is force in the contention. The reason which prevailed with the learned Additional District Judge, in declaring that 2 Kanals 19 Marlas plot belonged to the appellant is that Haji Muhammad Hussain was the owner of this plot but this land was invested by him in a firm known as Messrs Sharif Sons, in which the appellant, late Haji Muhammad Hussain and respondent Mahmood Hussain were partneRs, Vide Exh.D.2/1. Late Haji Muhammad Hussain withdrew from the partnership and relinquished his rights. The respondent Mahmood Hussain by means of document Exh.D.5 also withdrew from the partnership of the firm. The firm 'Shard Sons' ostensibly came to an end on execution of document Exh.D.5. It was further held 'I leave this question for agitation between the two living partners if so advised. For the purposes of this suit/appeal, it is quite evident that the property of 2 Kanals and 19 Marlas, on transfer to Sharif Sons vide registered document dated 18-8-1965 Exh. Mark D.1, it ceased to remain in the ownership of Haji Muhammad Hussain and is therefore, not open to partition'. The learned High Court disagreed with this finding and discussed this matter in paras. 17 and 18 of the judgment. It was held that the execution of partnership deed Exh.D/1 has not been proved. Treatment of the matter by the High Court on this subject is as under:- - "In order to prove that this partnership firm was formed, the appellant produced Exhs.D.6, D.7 and D.8. Exh.D.6 is a copy of form 'A' which is maintained by the Registrar of Firms under section 59 of the Partnership Act, from which it is manifest that the firm Messrs Sharif Sons was registered on 19- 12-1963 which was recorded therein to be a firm at will. The principal place of business according to this document was shown to be Chowk Jhanda, Lahore. The names of the partners given in this document were Sh. Muhammad Sharif, Haji Sheikh Muhammad Hussain and Sheikh Mahmood Hussain. This document shows that it was filed with the Registrar of Firms on 19-12-1963. Exh.D.7 is acknowledgment of registration of firm issued by the Registrar. This document bears the date as 19-12-1963. Exh.D.8. Shows that the firm had a bank account in the Industrial Development Bank and the names of abovesaid three partners have been mentioned therein. Surprisingly no account number has been given in this document, which the firm was maintaining. Be that as it may, from these documents the appellant succeeded to establish only that a partnership firm was registered in the name and style of Messrs Sharif Sons and three persons were shown as its partners namely the appellant, Haji Muhammad Hussain and Mahmood Hussain in the record of Registrar of the Firms. Since Mahmood Hussain had denied that there was any partnership firm formed by him and Haji Muhammad Hussain deceased as partners with the appellant, it was incumbent upon the appellant to have proved on record that there was an agreement between the said three alleged partners for carrying on business in partnership as under the laws it was only through an agreement that a partnership firm could be formed. The registration of firm with the name and style of Messrs Sharif Sons disclosing therein that certain persons were its partners was not itself the proof of execution of any such agreement between the said alleged partners to do business in partnership."
6. It was further observed that the appellant was required under the law to prove its execution by proving that Haji Muhammad Hussain in fact executed it. The execution of document Exh.D.5 relating to the deed of dissolution of partnership according to the learned High Court has not been established. After coming to this conclusion the judgment of the first Appellate Court was reversed by it and that of the trial Court was restored.
' In our view the learned Additional District Judge has examined the documentary evidence and then decided the issue in favour of appellant. The finding of fact was not based on surmise or conjecture. Exh.D.1 dated 7-2-1964 partnership deed was duly executed between the parties. Exh.D.2 is a document dated 5-1-1969 whereby Haji Muhammad Hussain abandoned his rights from the partnership business. Exh.D.5 is a deed of dissolution of partnership. D.W.1, Officer Industrial Development Bank of Pakistan deposed that on 30-1-1%5 Rs,49,900 wet sanctioned as loan in favour of Sharif Sons. The partners of the firm were Haji Muhammad Hussain, Sheikh Muhammad Sharif and Sheikh Mahmood Hussain. The plot measuring 3 Kanals 16 Marlas was mortgaged in favour of the Bank in view of that loan. He also stated that on 31-8-1982, the appellant had informed the Bank that he undertook liabilities of the firm. He has further stated on 24-3-1983 that Mahmood Hussain had informed the Bank that he was not partner of the firm. The learned first appellate Court has considered the documentary evidence on record and thus came to the conclusion that the plot in question belonged to the appellant. The learned High Court has taken extraneous circumstances in rejecting the evidence produced by the appellant and considered by the Additional District Judge. A preliminary decree has been passed and it is still open to the parties to bring to the notice of the Court subsequent events. First Appellate Court has already left the question to be agitated by Muhammad Hussain partner of the firm. In Muhammad Latif v.
Muhammad Hafiz PLD 1954 FC 184 it has been held as under:-- "The shares declared by preliminary decree in partition suit can be varied consequent upon death of one of the heirs, and amendment of shares may be effected even after the preliminary decree had been appealed by a dissatisfied party and the shares declared by decree had been upheld by the appellate Court.
' A Court can and ought to take notice of subsequent events which may happen during the pendency of a suit provided no prejudice is caused to any one by doing so.
' A partition suit in which only a preliminary decree has been passed is still a pending suit and the rights of the parties have to be adjusted at the time of the final decree."
' We may also refer to Syed Mehdi Hassan Shah v. Mst. Shadoo Bibi and others PLD 1%2 SC 291 wherein it has been observed as under:-- "While an administration suit is not a remedy for getting possession from those who claim the property in their possession in their own right and adversely to the deceased, there does not appear to be a valid objection to their dispossession if they claim only as heirs or under a will from the deceased and their claim is negatived, The question as to whether a person is entitled to a share in the property of the deceased is a fit subject of decision in an administration suit.
' The object of an administration suit is the distribution of assets between more than one person and if the defendants to a suit be only trespassers and the plaintiff is the person solely entitled there can be no administration suit by such a plaintiff against such defendant."
7. In conclusion we accept this appeal, set aside the order of the High Court in respect of the suit land measuring 2 Kanals 19 Marlas and restore the judgment of the Additional District Judge dated 13-12-1983. The appeal is allowed in the above terms with no order as costs.