' Respondent's suit for partition was dismissed by the learned Civil Judge on 27-7-1981 while appeal filed by the respondent has been accepted by the learned Additional District Judge, on 8-6-1998 and the suit has been allowed.
2. Briefly stated the facts of the case are that respondent filed a suit for partition of a Plot bearing No,632-A, Labour Colony, Samanabad, Faisalabad seeking partition thereof by averring in the plaint that such plot was jointly owned by Fateh Muhammad, the deceased, father of respondent and petitioner in equal share. Fateh Muhammad died on 23-4-1974 and legal heirs of the deceased have surrendered their right in the suit property, in favour of the respondent, thus, he has become a co-owner along with the petitioner to the extent of half share of the plot. The suit was contested by the respondent, who claimed that the plot was allotted by the Urban Rehabilitation Department Faisalabad, in favour of the appellant. He deposited certain amounts and on the request of Fateh Muhammad, deceased, joined him in the allotment to the extent of half share.
However, Fateh Muhammad did not make the payments, which he was liable to contribute towards the price of the plot and consequently, the plot was cancelled. The appellant filed a suit, which was decreed. The entire expenses of the litigation were borne by the appellant and acknowledging that Fateh Muhammad had no right or interest in the plot, he executed an affidavit, dated 14-1-1974 surrendering his rights, in favour of the appellant. Thus, as Fateh Muhammad was not a co-owner of the suit plot, therefore, on his death, no share had devolved upon the respondent. Issues were framed. The relevant Issue No,6, for the purposes of the present appeal to which both the sides have confined is, "whether the plaintiff is a co-sharer in the property in dispute, if so, what is the extent of his share?" OPP.
3. Learned trial Court, as mentioned above, decided this issue against the respondent resultantly, the suit was dismissed. The conclusion drawn by the trial Court is that, the deceased, Fateh Muhammad had not contributed towards the payments of the suit plot, the expenses of the litigation, and had also executed an affidavit, dated 14-1-1974, acknowledging the above position and surrender his share in favor of the appellant. In appeal, learned Appellate Court, vide judgment and decree, dated 19-5-1985, set aside the decree. So the trial Court by taking a view, that other legal heir of Fateh Muhammad, were necessary party to the suit, who had not been impleaded. The case was remanded to the trial Court for decision afresh after impleading the other legal heirs of Fateh Muhammad. This order of remand was challenged by the appellant in F.A.O. No,173 of 1985 on the ground that the petitioner had not raised any objection about the non-joinder of the parties and, therefore, Appellate Court was not justified in remanding the case on an issue, which was not before him. This Court, vide judgment, dated 30-3-1998, allowed the appeal and directed the learned Additional District Judge to decide the case according to law and its merits. After remand, the Appellate Court, accepted the appeal, filed by the respondent and by reversing the findings of the trial Court on Issue No,6, passed by the preliminary decree for partition, in favour of the respondent, hence this appeal.
4. Learned counsel for the appellant states that in the plaint the case of the respondent is that other legal heirs of Fateh Muhammad, after his demise had surrendered their rights in favour of the respondent and thus, on account of the above, he had become the co-owner along with the petitioner, while in the evidence, the respondent states that Fateh Muhammad during his lifetime had surrendered his rights in favour of the respondent conferring upon him the half share of the plot. This is in serious contradiction to the plaint and any evidence led by the respondent beyond the scope of his pleading, was liable to be ignored, the respondent has failed to prove any surrender by the legal heirs of Fateh Muhammad, after his demise, thus, such legal heirs in a partition litigation were necessary parties to the suits and in their absence, no decree could be passed in favour of the respondent.
5. Arguments heard. Though according to the wording, of issue No,6, the appellant was required to prove being a co-sharer in the suit property, but, in fact, the real dispute between the parties is if, Fateh Muhammad, was the co-owner of the suit property along with the appellants, at the time of his death, which right could devolve upon the respondent or other legal heirs of Fateh Muhammad.
Learned Appellate Court by examining the documentary evidence on the record, particularly, the suit filed by the appellant and Fateh Muhammad, jointly challenging the cancellation of the plot from their names and the decree of the Court restoring the plot, as also considering Exhs.P.3. And P.4, which duly contemplate that the plot in question was co-owned by the petitioner and Fateh Muhammad has reversed the findings of the trial Court on the said issue.
6. It may be pertinent to state here that the appellant's whole case is based upon the affidavit, dated 14-1-1974, Exh.D1, claiming that Fateh Muhammad during his lifetime had surrendered his rights in favour of the appellant. By placing reliance on this affidavit, the appellant, in fact, accepts that Fateh Muhammad was the co-owner, and thus, he surrendered his rights to the appellant, therefore, the most important aspect of the case is if, the appellant has been able to prove the due execution of the affidavit Exh.D1, by Fateh Muhammad. This document is not witnessed by, any person, however, to prove its execution, the appellant has examined the scribe of Exh.D1 and the Oath Commissioner who attested the same, both these witnesses in their cross-examination candidly admitted that they did not personally knew Fateh Muhammad. It is also not established on the record by the appellant that such affidavit was prepared, on the instructions of Fateh Muhammad, therefore, First Appellate Court has rightly concluded that the appellant has failed to prove the execution of Exh.D1 with the result that Fateh Muhammad was found to be a co-owner along with the appellant of the suit plot.
7. The learned Appellate Court has also compared the admitted signatures of Fateh Muhammad with the signatures on affidavit Exh.D1 and concluded vast difference in these two signatures.
Anyhow, as held earlier, the appellant has not been able to prove the execution of Exh.D1 because the petitioner had set out a counter plea that Fateh Muhammad had surrendered his rights in favour of the appellant thus, the onus in this behalf was heavily on the shoulders of the appellant which he has failed to discharge.
8. Now the question if, Fateh Muhammad during his lifetime had surrendered his rights to the respondents or it is after his death that the other legal heirs of the deceased had relinquished their rights in favour of the appellants, is relegated to a secondary position. For the reason that the appellant in his written statement has not objected to the suit being bad for non-joinder of the legal heirs of the deceased, Fateh Muhammad, rather when the case was remanded by the Appellate Court, he challenged the remand order through F.A.O. No,173 of 1985, making out a grievance that, it was not his case that other legal heirs of Fateh Muhammad, though necessary party to the litigation but have not been arrayed; This appeal as mentioned earlier was allowed. It is, therefore, not available to the appellant now to re-agitate the matter and challenge the impugned judgment and decree on the score that the other legal heirs of Fateh Muhammad should have been impleaded as a party. Thus, irrespective whether it is the respondent alone who has succeeded to the rights of the deceased, Fateh Muhammad or the same has also devolved upon the other legal heirs, is a question which cannot be reopened in the instant appeal. The only real question as mentioned above is if Fateh Muhammad was the co-owner along with the appellant, at the time of his death, which is answered against the appellant. It may be added that in present proceedings through a miscellaneous application the other legal heirs of Fateh Muhammad have filed their affidavits stating that they had surrendered their rights in favour of the respondent and do not claim any right or interest in the suit property. In view of above, the appellant cannot make any grievance that there is any defect in the decision of the learned Appellate Court.
Upshot of above is that no misreading or non-reading of the evidence or any other illegality has been shown in the impugned judgment and decree, therefore, this appeal has no force and the same is hereby dismissed.