' This will dispose of Civil Revisions Nos. 2384 and 2385 of 1985 by the defendant Malik Muhammad Abdullah. They have arisen out of the judgment and decree of the learned Additional District Judge, Sialkot, dated 5-10-1985 whereby the appeal of Malik Manzoor Elahi plaintiff and the appeal of the defendant Malik Muhammad Asif and Mst. Zuhra Begum, against the judgment and decree of the learned Senior Civil Judge, Sialkot, dated 19-7-1984 were accepted and a preliminary decree for partition of one half share of the suit property mentioned in para 1(a) and (b) of the plaint was passed in favour of the plaintiff against the defendant Malik Muhammad Abdullah, petitioner herein, "alongwith mesne profits at the rate of Rs,100 per month as claimed by the plaintiff and further from the institution of the suit till the date of final decree." The learned Senior Civil Judge had, by his judgment, dated 19-7-1984, dismissed the suit.
2. The plaintiff Malik Manzoor Elahi and the first defendant Malik Muhammad Abdullah are real brothers. They are the sons of Faqir Muhammad. The latter had two other sons, named, Malik Muhammad Asif and Malik Attaullah but it was common ground between the parties that they had sold their shares inherited by them from Faqir Muhammad to Malik Manzoor Elahi and Malik Muhammad Abdullah. The suit was brought by Malik Manzoor Elahi on 3-7-1974. In the original suit partition was sought of two properties (i) House No, B-XVIII-II-S-30-RH and (ii) Haveli B-XVIII-II S- 108-RH. The parties were agreed that these two properties were their ancestral properties.
3. There were three defendants in the suit, namely, Malik Muhammad Abdullah, petitioner herein,,Malik Muhammad Asif and Mst. Zuhra Begum. Malik Muhammad Asif defendant is a son of Muhammad Abdullah petitioner but has been adopted by the plaintiff Malik Manzoor Elahi, who has no issue of his own. Mst. Zuhra Begum defendant is the wife of the plaintiff Malik Manzoor Elahi.
4. Malik Muhammad Abdullah defendant (to be referred to as the petitioner) contested the suit by filing a written statement. The claim set up by him was that besides the above-mentioned two properties, there were two other properties owned jointly by them, namely, a bungalow and a plot; that they were running business jointly; that "the parties acquired immovable properties with the joint funds of the plaintiff and defendant No,1 i.e. shares in the disputed house and haveli, bungalow in the name of defendant No,2 and a plot in the name of defendant No,3"; that there had been private partition between them with the result that the ancestral house and haveli fell to the share of the petitioner and the other two properties fell to the share of the plaintiff. In pursuance of the private partition, the parties were put in possession of their respective properties in September, 1971.
5. In this judgment House No, B-XVIII-II-S-30-RH and Haveli No,B-XVIII-II-S-108-RH will be called the ancestral properties and the remaining two properties will be described as the bungalow and the plot. The parties argreed that the bungalow was in the name of Malik Muhammad Asif defendant and the plot was in the name of Mst. Zuhra Begum defendant. Later the bungalow and the plot were also included in the suit.
6. Malik Muhammad Asif and Mst. Zuhra Begum filed a written statement supporting the claim of the plaintiff Malik Manzoor Elahi.
7. On the parties' pleadings the following issues were framed and tried:----
(1) Whether the suit has not been correctly valued for the purposes of court-fee and jurisdiction? If so, its effect? OP.1.
(2) Whether the suit is not maintainable in its present form? OP.1.
(3) Whether there had been private partition executed between the parties and possession was changed in consequence thereof? OPD
(4) Whether the plaintiff is entitled to recover the mesne profits from defendant No,1? If so, to what extent? OPP.
(5) If issue No,3 is not proved then what are the shares of the parties in the suit property? OPP
(6) Relief.
8. The learned Senior Civil Judge held that there had been a private partition of the properties; that in the private partition, the ancestral properties had been given to the petitioner; that the Bungalow and the plot had in fact been purchased with the funds drawn from the joint business; that as regards those properties Malik Muhammad Asif and Mst. Zuhra Begum were mere Benamis and that in the private partition those properties had fallen to the share of the plaintiff. The learned Senior Civil Judge decided issue No,1 in the plaintiff's favour and issues Nos. 3, 4 and 5 against him.
9. The learned Additional District Judge found on issue No,1 that the valuation of the suit for the purposes of Court-fee and jurisdiction was Rs,25,000 and that the plaintiff had already paid Court- fee on it. It was said that the bungalow and the plot being also the subject-matter of the suit. The valuation of the suit should, therefore, have been fixed at a higher level. He did not agree with that contention. On issue No,3 the learned Additional District Judge observed that though the matter "involved was very important one as it pertained to valuable rights in property and it could not be decided on mere oral evidence of a few witnesses on one side rebutted by the oral statements of a few witnesses on other side" and that there was absolutely "no cogent evidence led by defendant No,1 to prove his vague allegations raised merely to defeat the admitted right of the plaintiff in the suit property". It was held that the oral evidence led by the petitioner himself "is by itself sufficient to show that he has no case". He then referred to the evidence of Kh. Mukhtar Hassan (D.W.3) who had acted as Arbitrator between the parties who according to the learned Additional District Judge had "dearly admitted that the decision which he made was reduced to writing"; the learned Additional District Judge then referred to section 91 of the Evidence Act had held that "the document should be proved by direct or by secondary evidence but oral evidence cannot be led to prove the contents". He, therefore, concluded that the oral evidence of the petitioner "cannot be considered in favour of domestic partition". On the question whether Malik Muhammad Asif and Mst. Zuhra Begum were mere Benamidars in respect of the bungalow and the plot, the learned Additional District Judge held that the learned trial Judge had so found on mere presumptions and conjectures. In that behalf he noticed that no motive for Benami transaction had been put forward; that Malik Muhammad Asif defendant was a partner in the firms and had, therefore, his own source of income; that Mst. Zuhra Begum being the wife of the plaintiff "can get money from her husband".
10. Learned counsel for the petitioner maintained that the entire oral evidence of the petitioner was excluded on the wrong assumption that a partition deed had been written between the parties; in that connection he took me through the entire evidence, particularly, the evidence of Kh. Mukhtar Hassan (D.W.3) to point out that a partition deed had been written. He maintained further that the learned Additional District Judge did not take into consideration the evidence of the petitioner as was done by the learned Senior Civil Judge. Learned counsel for the petitioner also argued that the valuation of the properties in suit was much more Rs, 25,000 and the appeal before the learned Additional District Judge was, therefore, not competent. In that behalf he pointed out even if the learned Additional District Judge was right in concluding that the jurisdictional valuation of the suit was Rs, 25,000, this did not take into account the value of the bungalow and the plot which too were the subject-matter of the suit.
11. The contention that the valuation of the suit was beyond the pecuniary jurisdiction of the learned Additional District Judge is in my opinion not entitled to succeed, for it ignores the important fact that in the plaint valuation of the suit for the purposes of Court-fee and jurisdiction was stated to be Rs,29,000. This remained the value of the suit even after the Bungalow and the plot had been included in the suit on the objection of the petitioner.It is in that connection important to remember that the plaintiff had not sought the partition of those two properties. However that may be, it is now well settled that it is the jurisdictional value as stated in the plaint that determines the A forum of appeal. In this behalf reference may be made to Illahi Bakhsh and others v. Mst. Bilqees Begum PLD 1985 SC 393 and Muhammad Nawaz v. Sher Muhammad PLD 1987 SC 284.
12. As one of the grievances made by the petitioner's counsel was that, his oral evidence was wrongly excluded from consideration by the learned Additional District Judge, I have with the assistance of the petitioner's counsel read the entire evidence with a view to deciding the entire controversy. The plaintiffs evidence consisted of the testimony of Haji Fazal Hussain (P.W.1), Attaullah (P.W.2); Malik Manzoor Elahi plaintiff entered into the witness-box as P.W3. It is noteworthy that Attaullah (P.W.2) was a real brother of the plaintiff and the petitioner. The substance of the plaintiffs evidence was that there had been no private partition of the ancestral properties; that the plaintiff and the petitioner had been partners in two firms known as Rolls Royce Surgical and Washington Surgical; that Malik Muhammad Asif defendant was also a partner in one of them, namely, Rolls Royce Surgical and his share was 1/3rd. Malik Muhammad Asif defendant it was in the evidence of Haji Fazal Hussain P.W. had done his graduation. It was also in the evidence of Haji Fazal Hussain P.W. that when disputes arose between the partners in 1970, the disputes were resolved in this way that the Rolls Royce Surgical went to the plaintiff and Malik Muhammad Asif defendant and the Washington Surgical went to the petitioner. Attaullah P.W. said also that he was also a co-sharer in the ancestral properties but had separated his share vide a partition deed Exh.P.1.
13. The plaintiff also placed on record a copy of partition deed (Exh.P.1), building plan submitted by the petitioner and the plaintiff Malik Manzoor Elahi jointly (Exh.P.2) a copy of registration PTI (Exh.P.3), a copy of taxation record (Exh.P.4), a letter from the Municipal Committee (Exh.P.5), a certificate of the Excise Department (Exh.P.6) and another extract from the taxation record (Exh.P.7).
14. In rebuttal the petitioner examined himself and three witnesses, namely, Ihsan Elahi (D.W.1), Muhammad Din (D.W.2) and Kh. Mukhtar Hassan (D.W3). Ihsan Elahi D.W. testified that the petitioner and the plaintiff were owners of the ancestral properties in equal shares. They had a joint business of surgical goods. In 1971 disputes arose and the parties separated. At that time they jointly owned the ancestral properties and the bungalow and the plot and they were also partitioned. In the partition the bungalow and the plot were given to the plaintiff and Malik Muhammad Asif defendant and the ancestral properties were given to the petitioner. At the time of the partition, Kh.
Mukhtar Hassan and others had participated. He admitted in cross-examination that the petitioner had appeared as a witness in one of his suits and also that there had been proceedings under sections 107 and 151 of the Code of Criminal Procedure between him and the plaintiff. He was thus an interested witness. Muhamamd Din (D.W.2) also made a similar statement. He admitted that he was an attesting witness to the deed by which the bungalow was purchased in the name of Malik Muhammad Asif defendant and also to the deed by which the property was purchased in the name of Mst. Zuhra Begum defendant. Kh. Mukhtar Hassan (D.W.3) admitted that the surgical business was jointly owned by the petitioner, the plaintiff and the defendant Malik Muhammad Asif.
He had acted as Arbitrator in their dispute. He did not know if the parties had acquired any property during that business.
He then corrected himself saying that he had heard that some properties were acquired with the funds of the firms. He admitted in cross-examination that there was a written memorandum of the disputes that were referred for his arbitration. He admitted also that he had not acted as Arbitrator in any other dispute between the parties. In his own testimony Malik Muhammad Abdullah tried to support his claim. He, however, admitted in cross-examination that the partition of the property in suit was effected by Kh. Mukhtar Hassan D.W.
15. Malik Muhammad Asif defendant also appeared into the witness box as D.W.6; he called one Abdul Latif as his witness.
16. It remains to be noticed that Exh.P.1 was the partition deed of the year 1952. It shows that a partition of the ancestral properties had taken place between the three brother Malik Attaullah, Malik Muhammad Abdullah and Malik Man7oor Elahi and that the partition was duly reduced into writing. Exh.D.4 was the dissolution deed by which the firms Rolls Royce Surgical Company and Washington Surgical Company were dissolved; it shows further that the partners in that business were Malik Muhammad Abdullah, Malik Manzoor Elahi and Malik Muhammad Asif. In that deed there was no mention whatever of the properties in suit or their partition.
17. It has been seen that it was common ground between the parties as regards the ancestral properties, they were owned in equal shares by the petitioner and the plaintiff Malik Manzoor Elahi.
The onus to prove that these properties had been privately partitioned was upon the petitioner. The impression one gains from the parties' evidence is that the alleged private partition had taken place contemporaneously with the dissolution of the joint business among the petitioner Malik Muhammad Abdullah and the plaintiff Malik Manzoor Elahi and the defendant Malik Muhammad Asif. It has been seen that as regards the dissolution of the parternship business, the parties thought it necessary and proper to reduce the dissolution into a formal document, namely Exh.D.4.
In that document there was no mention of any private partition of the ancestral properties or for that matter any other property. The learned Senior Civil Judge appears to have been influenced by the fact that previously the parties had been privately partitioning their properties; what he failed to notice was that in 1952 when there was a partition among the brothers, a formal deed of partition Ex. P.1 was written and executed. Therefore, rather than supporting the petitioner's claim this fact went against him. As has been noticed above, the petitioner admitted that it was Kh.
Mukhtar Hassan D.W. who had brought about the private partition of the properties; but Kh. Mukhtar Hassan gave him a lie by saying that he had done nothing more than resolving the partnership dispute. I am, therefore, of the-opinion that though the learned Additional District Judge was wrong in his view that the oral evidence of the petitioner was liable to be excluded under section 91 of the Evidence Act, 1872 (since repealed), yet he was right in concluding that the fact of private partition of the ancestral properties had not been established. I am also in agreement with him in his conclusion that the petitioner's evidence failed to establish that the properties standing in the names of Malik Muhammad Asif and Mst. Zuhra Begum defendants had been purchased from the funds of the joint business and that Malik Muhammad Asif and Mst. Zubhra Begum were mere Bendamidars. It has been seen that Malik Muhammad Asif was a partner in the business of the firms. Mst. Zuhra Begum too could not be said a Benamidar merely because she had no independent source of income. She is the wife of Malik Manzoor Elahi plaintiff and if we have to go by mere presumption there is no reason why it should not be presumed that Malik Manzoor Elahi, who was a well-to-do businessm an did not purchase the plot with his individual funds. No reason appeared why if the plot was being purchased with the funds of the firms the petitioner had allowed it to be purchased in the name of Mst. Zuhra Begum alone. The proved and admitted circumstances of the case were, therefore, all against the petitioner's assertion that the bungalow and the plot had been purchased with the funds provided by the firms and that Malik Muhammad Asif and Mst. Zuhra Begum were mere Benamindars.
18. For these reasons I will maintain the judgment and decree of the learned Additional District Judge and dismiss the revision petitions. The parties are, however, left to bear their own costs.