' SH. IJAZ NISAR, J.--This appeal by leave of the Court is directed against the judgment, dated 16-5- 1993, of the Lahore High Court, Lahore, passed in C.R. No, 751-D of 1993.
2. The facts in brief are that Muhammad Khan, respondent herein, filed a suit in the Court of Civil Judge, Kharian, against Sardara etc., petitioners herein, maintaining that he was owner of 1/3rd share in land measuring 35 Kanals, 10 Marlas bearing Khasra No,772, situated in Mauza Sheikhpur according to Jamabandi for the year 1985-86. According to him, various types of fruit bearing and other valuable trees were standing on the land, which the petitioners wanted to cut and sell and to raise construction over the said land. He prayed that Sardara etc., petitioners be restrained from cutting and selling the trees and from raising construction on the land in question till it was partitioned.
' The petitioners resisted the suit on the ground that private partition had taken place among the shareholders more than 100 years ago and that each shareholder was in possession of his respective share. After recording of evidence on the issues framed on the basis of the pleadings of the parties, the learned trial Judge dismissed the suit on 23-9-1992.
' Muhammad Khan respondent filed an appeal against the said judgment and decree, which was accepted by the learned Additional District Judge and decreed the suit in favour of the respondent.
Sardara etc., appellants filed a revision petition in the High Court against the said order, which was dismissed on 16-5-1993. Hence, this appeal.
3. At the leave granting stage the learned counsel for the appellants made the following submissions:-- "that Khasra No,772 throughout remained in possession of the petitioners alone. That they have improved it and have planted the fruit-bearing and non-fruit-bearing trees on it, therefore, in the circumstances of the case respondent/plaintiff had no cause of action to interfere with petitioners' right of use of the land and that if the respondent/plaintiff had any grievance he could approach the competent Court of law for partition of the entire holding."
Leave was granted to consider "whether a co-owner in excessive Hissadari possession of specific Khasra number in joint holding comprising of several Khasra numbers could have been restrained from use of land when adequate remedy to ask for partition of the joint holding is available. "
4. The learned First Appellate Court i,e, the Additional District Judge accepted the appeal with the following observations:--- " I have heard counsel for the parties and examined the record. The findings of the trial Court that the appellant had no land in the Khata is falsified by the documentary evidence on record. From minute perusal of Exh.D.6 it is clear that the appellant sold his land measuring 40 Kanals, 1 Marla from Khasra No,936 to Muhammad Shafi vide Mutation No,1871 dated 12-3-1979. Similarly, Exh.D-5 proves the sale of land measuring 6 Kanals out of Khasra No,772 to one Noor Muhammad vide Mutation No,2135 dated 17-9-1988 and after the sale of 6 Kanals the land measuring 5 Kanals, 6 Marlas remained in the ownership of the appellant in Khasra No,772. The trial Court although referred to the documents Exh.P.1 to P.3 but not perused the same. Exh.P.3 is a judgment dated 22- 3-1990 in a suit titled Muhammad Khan v. Noor Ahmad wherein Muhammad Khan prayed for declaration with consequential relief asserting that Mutation No,2135 dated 17-9-1988 was without consideration, therefore, it may be declared ineffective qua his rights of ownership of 6 Kanals of land. Noor Ahmad did not contest the suit and the same was decreed ex parte against him on 22- 3-1990 against which no appeal was filed and that decree became conclusive between the parties. By virtue of this decree the appellant again became the owner of 6 Kanals, 16 Marlas. In this view of the matter the findings of the trial Court that Muhammad Khan had sold his total share and was not owner in Khasra No based on misreading of record and documentary evidence, therefore, is set aside and it is held that the appellant in the owner of 1/3rd share in Khasra No,7'72. In view of the principle that documentary evidence excludes oral evidence, the appellant was not required to produce large number of witnesses to prove his case and only his own statement in support of the plaint is sufficient. The evidence of the respondents was substantially contradictory, therefore, cannot be relied upon to non-suit the appellant. "
' The learned High Court while upholding the judgment of the learned District Judge observed as under:-- ..In fact, the petitioner became owner of 6 Kanals of land by means of ex parte decree dated 22-3- 1990 and was already owner of 5 Kanals, 16 Marlas. It is as clear as a day that the decree dated 22- 3-1990 could not be mentioned in Amandi pertaining to year 1985-86. From the above it is crystal clear that contention of the learned counsel for the petitioner is bereft of any merit and deserves to be repelled. The finding of the Appellate Court on Issues Nos.3 and 4 is eminently correct and in accord with the objective appraisement of evidence brought on record. The conclusion arrived at by the Appellate Court does not suffer from any misreading or non-reading of evidence and is in accord with law. It is, therefore, unexceptionable."
5. It is contended before us that there has been a gross misreading of evidence and the respondent had ceased to be a co-sharer by parting with his right in the joint property and, thus, had no cause of action to institute the suit. That the learned Courts below failed to take notice of the fraud committed by the respondent in producing fake Jamabandis.
6. The learned Additional District Judge after a careful examination of documentary evidence led by the respondent had come to the conclusion that even after the sale of land by the latter he still owned 5 Kanals, 6 Marlas of land in Khasra No,772, that by virtue of judgment and decree dated 22- 3-1990 in the suit titled Muhammad Khan v. Noor Ahmad he had been declared owner of further land measuring 6 Kanals and 16 Marlas showing him to be owner to the extent of I /3rd share in Khasra No,772.
7. The judgment of the learned Additional District Judge, which was affirmed in revision by the learned High Court, is based on correct appreciation of the documentary evidence adduced by the respondent and does not call for interference by this Court. It was, therefore, rightly held by the learned Additional District Judge and the learned High Court that since the land in dispute was joint and had not been partitioned between the parties, the appellant could not unilaterally cut and sell the trees growing or raise any construction thereon.
' Thus, finding no illegality or infirmity in the impugned judgment, we dismiss the appeal leaving the parties to bear their own costs. However, it may be mentioned that the learned counsel for the respondent has undertaken that his client shall file the partition proceedings within a month to resolve the controversy once for all.