1. ' SAIDUZZAMAN SIDDIQUI, J.---The petitioner is seeking leave to appeal against the judgment of a Division Bench of Peshawar High Court, Abbottabad Bench, dated 7-2-1994 passed in R.F.A. No,30 of 1985.
2. ' The relevant facts of the case are that respondent No,1 Salah-ud-Din, instituted a Civil Suit No,245/1 on 20-4-1980 against the respondents for declaration of title in respect of houses bearing Nos.413, 410 and 411 to the extent of 1/4th share in the said houses. The suit was resisted by the predecessor-in-interest of the petitioner Qazi Muhammad Iqbal who in his written statement, filed in the case, denied ownership right of respondent No,1 and claimed that house No,413 belonged to Qazi Sheharyar, Advocate while house No,411 was constructed by the petitioner's predecessor-in- interest and the same was in his possession. In respect of house No,410, it was claimed that according to will executed for this property, this house belonged to Muhammad Saleem and Muhammad Shameem who were also shown as defendants in the suit. In this context, it was claimed in the written statement filed by the predecessor of the petitioner that respondent No,1 was only entitled to 1/6th share as an heir of Mst. Karam Noor. Issues Nos.7 and 8 framed in the suit by the trial Court were as follows:-- "(7) Whether house No,K-413 is owned and constructed by one Qazi Shehryar? If so, to what effect?
(8) Whether defendant No,4 has constructed house No,K-411 ? If so, to what effect?"
3. ' After recording evidence of the parties, the trial Court dismissed the suit. However, on appeal the learned Judges of the Division Bench reversed the judgment and decree of the trial Court by observing as follows:-- "3. Learned counsel appearing in this appeal including Qazi Muhammad Shehryar, Advocate of this Court submitted that consolidation of Suit No,245/1 of 1980 and application of File No,61/6 or 48/6 of 1983 has resulted into contradictory findings, misapplication of law, misreading, non-reading of evidence and thus the judgment as such cannot be sustained. Learned counsel admit the status of the legal heirs of Mst. Karam Noor along respective shares of 1/6 and 3/6 indicated in the table mentioned above. It is also admitted that houses bearing Nos. 410 and 411 are the legacy of Mst.
4. Karam Noor.
4. In the circumstances of admitted facts this appeal is accepted, judgment and decree dated 8- 9-1985 of the learned Senior Civil Judge, Abbottabad in Suit No,245/1 'Salah-ud-Din v. Mst. Saif Sultan now deceased through legal heirs and others' is set aside. The plaintiff-appellant is granted preliminary decree for partition of the suit houses bearing Nos.410 and 411 to the extent of 1/6th share, the respondents Saleem and Shameem sons of Muhammad Alam to the extent of 2/6 share and the legal heirs of Mst. Saif Sultan to the extent of 3/6 share with no order as to costs at present.
5. The proceedings of final decree, if any is to be governed by the Partition Act, 1893 (Act No,IV of 1893)."
6. ' The petitioner, who is appearing in person, contended before us that the observation of the learned Judge of the Division Bench that it was admitted that houses Nos.410 and 411 were the legacy of Mst. Karam Noor, is based on misreading of the record in the case. It is also contended by the petitioner that neither he nor his counsel made any such concession before the learned Judges of the High Court during the proceedings of the appeal. To this effect, he has filed an affidavit of the learned Advocate who appeared on his behalf in the case before Peshawar High Court at Abbottabad Bench. It is, accordingly, contended by the petitioner that the judgment of the learned Judges of the Division Bench has proceeded absolutely on wrong premises as neither it was in the pleadings of the parties that house Nos.410 and 411 belonged to Mst Karam Noor nor any such concession was made on behalf of the petitioner before the Court. The contentions raised by the petitioner are not without substance as after going through the record, we have not been able to find any concession having been made either in the pleadings of the parties or in the evidence to the effect that houses bearing Nos.410 and 411 belonged to Mst. Karam Noor. We, accordingly, grant leave to appeal to consider whether the judgment of learned Judges of the Division Bench setting aside the judgment and decree of trial Court and passing a preliminary decree in favor of respondent No,1 in respect of houses bearing Nos. 410 and 411 was based on any evidence and material available on record ?