' FAZAL ELAHI KHAN, J.--This Regular Second Appeal by the defendants (treated as revision) has arisen out of a suit instituted by Shaukat Ali and others respondents 1 to 8 in the Court of Civil Judge, Charsadda for declaration to the effect that they were the owners of 1/3rd share in the land bearing Khasra No,2015/1124/1125 total measuring 8 Kanals 18 marlas sitauted in Mauza Agra, Tehsil Charsadda. It was further prayed that the defendants have no right to sell their share and to raise construction over it till regular partition takes place between the parties. As consequential relief injunction was prayed for to be issued against the defendants restraining them from sale of the land and from raising construction over it. Defendants in their joint written statement resisted the plaintiffs' suit on the basis that family partition has taken place some 50 years back in which suit Khasra number had fallen into the share of defendants 1 to 5 and that since then they alongwith defendants 6 to 9 were in possession of it and then sold it in favour of defendants 17 to 27 and 29 to
31. It was further stated that Abdul Khaliq, the predecessor-in-interest of plaintiffs and defendants 7 to 16 transferred their total entitlement in Mauza Agra in favour of defendants 7 to 9 hence they have been left with no interest and title in the suit land. It was further stated that after the sale made in favour of defendants 17 to 27 and 29 to 31 in the year 1979 the vendees have raised construction over it.
2. After framing the necessary issues arising out of the pleadings of the parties and recording evidence thereon the plaintiffs' suit was dismissed on the ground that defendants were successful in proving that in the private partition between the parties suit Khasra number had been allotted to defendants 1 to 5 as their share in the joint property and that they remained in exclusive possession of it since then. The plaintiffs' appeal against the judgment and decree was accepted by the learned Additional District Judge vide his judgment and order, dated 10-9-1983 and the plaintiffs were granted decree for declaration and permanent injunction to the extent of 4/18th share in the suit land. Defendants 17 to 31 were held to have no right to raise construction over the suit land till the hare of the plaintiffs is separated. However, the plaintiffs were directed to deposit compensation for improvements amounting to Rs,14,436 within 30 days failing which their suit was to stand dismissed. The afore-mentioned judgment and order of the appellate Court is challenged by the defendants in R.SA. No,1 of 1984 while the plaintiffs have challenged the same in C.R. No,414 of 1983. Both these matters arising out of the same judgment and decree are disposed of by this single judgment.
3. Counsel for the parties heard and record of the case perused.
' Admittedly the property in dispute originally belonged to Abbas Khan son of Amir Khan as is evident from settlement record of the year 1926-27 copy Exh.P.W.1/1. On the death of Abbas Khan his inheritance mutation No,154 was attested on 5-8-1928 in favour of Abdul Ghaffar, Abdul Khaliq and Fazal Ilahi, his sons in equal shares. In the lifetime of Abbas Khan the suit Khasra number was under cultivation of Toora Baz, his tentant, on payment of `Batai Nisfi'. In the year 1928-29 Abdul Ghaffar Khan is shown in Hissadari possession of the suit land through Toora Baz and subsequently in the year 1932-33 it was under his self-cultivation. Thereafter, Abdul Ghaffar is shown in cultivating possession through various tenants from time to time. Vide Mutation No,1447 attested on 16-7-1965, the inheritance of Abdul Khaliq devolved on Fazal Karim his son, Mst. Sahib Nazira, Mst. Niaz Parwara, Mst. Khurshida and Mst. Wilayat Nazira, his daughters in the column of ownership. Abdul Ghaffar made a gift of his share through Mutation No,1471 in the name of Ghulam Muhammad. Tila Muhammad, Saleh Muhammad, Taj Muhammad and Hussain Ahmad, his sons. In the column of cultivation these heirs of Abdul Ghaffar are recorded in Hissadari possession through their tenants.
The inheritance mutation of Fazal Karim son of Abdul Khaliq was attested in favour of his heirs on 14-5-1975 and plaintiffs are their successors-in-interest. Defendants 1 to 5 are the heirs of Abdul Ghaffar. Fazal Ilahi (defendant-6) son of Abbas Khan is still alive.
4. It is not denied that Abbas Khan owned considerable agricultural land in Mauza Ibrahim Zai, Shahbara Jangle and Agra which was inherited by his three sons. Plaintiffs have, however, alleged that the property is still joint while the defendants have set up a case, in brief, that through private partition the suit Khasra number had fallen to the share of Abdul Ghaffar, the predecessor- ininterest of defendants 1 to 5. To support their respective pleas both the parties have led evidence.
Azharuddin Patwari Halqa and Fazal Malik special attorney of the plaintiffs appeared on behalf of the plaintiffs while Ghulam Muhammad defendant 1 and Fazal Ilahi defendant 6 appeared as their own witnesses and produced Gul Amin and Mir Ahmad Gul as their witnesses. Gauhar Rehman, Advocate was appointed as a Commissioner who assessed the market value of construction raised over the suit property. The trial Court after discussing evidence of the parties under issues 1 and 8, pertaining to the cause of action and the plaintiffs' assertion to be co-owners to the extent of 1/3rd share in the suit land, held that private partition between the parties did take place in which whole of the Khasra number in suit was allotted to defendants 1 to 5 and that since then they are in its exclusive possession. It was further held that till private partition takes place they are to hold the land and that the remedy of the plaintiffs lies in partition of the entire joint property and not by way of the present suit. On that score the plaintiffs were held to have got no cause of action.
Similarly sale of the land by defendants 1 to 5 was held valid and binding and the rights of the vendees protected under the law. On the other hand, the learned Additional District Judge in appeal by the plaintiffs held that there was no documentary evidence in support of private partition and that the oral evidence was not confidence inspiring. Reliance was also placed on the revenue record available on the file in which the plaintiffs are recorded co-owners in the column of ownership. Accordingly the finding of the trial Court on the issue was set aside and the plaintiffs' suit decreed as prayed for.
4. The contention of the learned counsel for the petitioners that the findings of the learned appellate Court on the material issue are based on misreading and non-reading of evidence, is supported by the record. Fazal Malik one of the plaintiffs and attorney for the other plaintiffs has himself admitted in his cross-examination that the three brothers mentioned above had landed property in three different villages and that the plaintiffs are in possession of their respective shares in all the three villages. Reference can be made to his statement relevant part whereof is as follows:-- {{URDU TEXT}} ' His statement is supported by Ghulam Muhammad defendant inasmuch as he has admitted in his statement in Court that in Mauza Agra they jointly owned 29 jaribs of land and each brother got 7-1/4 jaribs of it which is in their possession. The statement of Fazal Ilahi, the only survived son of Abbas Khan, who is the owner of 1/3rd share in his inheritance is very useful in the context of the present dispute between the parties. He has stated that although no regular partition has taken place between the parties of their ancestral property, yet they have privately partitioned it by drawing lots in which the suit khasra number was allotted to defendants 1 to 5 and since then Abdul Ghaffar in his lifetime and thereafter his heirs are in its exclusive possession. His statement, which was against his own interest, was discarded by the learned appellate Court without any cogent reason. The revenue record placed on file from the year 1927-28 upto date fully supports the plea of the defendants that they are in exclusive Hissadari possession of the suit Khasra number since more than 40 years and they were selling it to various persons. Furthermore, the report of the commissioner is in positive that defendants 1 to 5 have sold the land in favour of rest of the defendants about which mutations have been duly entered in the revenue record and possession delivered under it and that the vendees have raised construction over it.
5. Such being the case when there is no assertion in the plaint that the suit Khasra number in possession of defendants 1 to 5 has some special characteristic and potentiality and that the same is not in excess of their entitlement in the entire joint holding, no case has been made out for the relief sought for by the plaintiffs in the present suit. It also does not stand to reason in such a case to restrain the defendants from exercise of their right of ownership in the suit land. It is further established 'on the record that construction has been raised over the suit land by the defendant- vendees, without any objection and hindrance by the plaintiffs and that since then the vendees are residing in it which aspect of the case has not been considered in its true perspective by the learned Additional District Judge while setting aside the finding of the learned trial Judge. On the facts and circumstances of the case the learned trial Judge was perfectly justified in holding that the remedy available to the plaintiffs is to seek partition of the entire joint holding if they are not satisfied with the mutual arrangement existing since last 40/50 years.
For the reasons stated above this revision petition is accepted, the judgment and order of the learned Additional District Judge is set aside and that of the trial Court restored. In consequence C.R. No,414 of 1983 is dismissed as having become infructuous. No order as to costs.