' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment and decree of the High Court, dated 2-6-1999, whereby accepting the appeal filed by the defendants- respondents, the judgments and decrees of the Courts below were set aside.
2. The brief facts of the case are that the plaintiffs-appellants, herein, filed a suit on 18-6-1980 in the Court of Sub-Judge, Dudyal, alleging that the land measuring 31 Kanals and 13 Marlas comprising 'khewat' No,15, situate in village Potha Sher, and the land measuring 38 Kanals and 5 Marlas comprising 'khewat' No,15, situate in village Potha Bangash, Tehsil Dudyal, is jointly owned by the plaintiffs and the defendants which was partitioned by the Revenue Authorities. It was alleged in the plaint that the said partition proceedings were taken without the knowledge of the plaintiffs- appellants and following the proper procedure prescribed in that regard. It was further averred that in the previous litigation between the parties under section 145, Cr.P.C., the possession of the land measuring two Kanals, situated in village Potha Sher, was restored to the plaintiffs-appellants but despite that the Revenue Authorities, in derogation to the record of the case, gave the ownership of the said piece of land to the defendants-respondents. It was further the case of the appellants, herein, that the partition proceedings were kept secret from the plaintiffs-appellants and Alif Din, the predecessor-in-interest of appellants Nos.1 to 3 who died during the proceedings of partition but his legal representatives were not brought on the record in the partition proceedings. Thus, it was prayed that the mutation No,505 which pertained to the suit land, situated in village Potha Sher, attested on the basis of partition may be declared ineffective and inoperative ,against their interests.
3. The Trial Court, after taking necessary proceedings, decreed the suit filed by the plaintiffs- appellants; the appeal filed by the defendants-respondents to the District Judge was also dismissed. However, the appeal filed by the defendants-respondents to the High Court was accepted and it was held that allegations of fraud made by the plaintiffs-appellants have not been proved and that the ex parte proceedings against some of the plaintiffs-appellants were taken according to law; the High Court has also held that the Civil Court had no jurisdiction in the matter because the partition proceedings were kept intact by the appellate forums provided under the Revenue Act. The High Court has also held that Alif Din, the predecessor-in-interest of the appellants duly participated in the partition proceedings; it came to the conclusion on the basis of the documentary evidence on the record that he died after the order of partition had been ordered by the Revenue Assistant in 1977. Thus, it was held that non-implement of the legal representatives of Alif Din, deceased, in the partition proceedings was not fatal to the proceedings. It has been also observed by the High Court that Muhammad Khalid, one of the appellants, herein, who is son of said Alif Din, deceased appeared as 'Mukhtar' before the Appellate Revenue Authorities for Qurban and others but he did not take the stand at any stage that Alif Din had died but his legal representatives were not brought on record and, thus, the partition proceedings were not sustainable.
4. Before dealing with the merits of the case, we propose to dispose of the preliminary objection raised by Raja Muhammad Siddique Khan, Advocate, the learned counsel for the respondents, to the effect that Mst. Allah Rakhi daughter of Muhammad Khan, a co-sharer and Muhammad Akram son of Muhammad Khan, who were appellants in the High Court were not impleaded as a respondents in the appeal filed before this Court. Thus, according to the learned counsel for the respondents, the decree of the High Court being indivisible, the appeal entailed dismissal as being incompetent on this sole ground. He has argued that instead of Muhammad Akram son of Muhammad Khan, one Muhammad Akram son of Muhammad Hussain' has been impleaded as respondent in this Court Whereas no such person was appellant in the High Court.
5. Kh. Ali Muhammad, Advocate, the learned counsel for the appellants, has drawn our attention to the judgment of the High Court and has contended that in the said judgment, Muhammad Akram son of Muhammad Hussain has been mentioned and it was due to the aforesaid mistake that in the memorandum of appeal filed in this Court, Muhammad Akram son of Muhammad Hussain has been arrayed as respondent instead of Muhammad Akram son of Muhammad Khan. So far as Mst.
Allah Rakhi is concerned, the learned counsel has argued that as her name does not appear in the judgment of the High Court, the appeal filed by him would not be adversely affected. When we asked the learned counsel for the appellants as to when he came to know about the aforesaid defect, he replied that he became aware of the same when the concise statement was filed by the respondents in February, 2000. However, he insisted that it was not for the appellants to seek the correction in the memorandum of appeal but it was for the respondents to seek the correction in the judgment of the High Court even after the aforesaid mistake came to his knowledge.
6. We have given due consideration to the preliminary objection and we are of the view that it was for the appellants to seek rectification of the aforesaid mistake in the memorandum of appeal filed by them in this Court. But the learned counsel for the appellants is adamant that as the judgment was not got corrected by the respondents from the High Court, he was not obliged to seek any correction in the memorandum of appeal. Thus, we hold that as the aforesaid two respondents, namely, Mst. Allah Rakhi and Muhammad Akram son of Muhammad Khan were not impleaded as party in the appeal, the interest accrued to them under the judgment of the High Court would not be adversely affected.
7. Coming to the merits of the case, the learned counsel for the appellants has argued that two kanals of land situated in village Potha Sher had been in possession of the appellants since the times of their forefathers as a result of private partition. He has further contended that the respondents' share in the joint holdings situated in village Potha Sher comes to 3 Kanals whereas they were already in possession of the land to the tune of 6 Kanals. Thus, according to him, they could not be allotted additional two Kanals as a result of partition made by the Revenue Authorities. He has also submitted that the respondents did not implead the legal heirs of Alif Din in the partition proceedings ant, thus, the said proceedings stand vitiated and the mutation sanctioned on the basis of same in favour of the respondents-co-sharers is null and void against the interests of the appellants. The learned counsel has also contended that the High Court has committed an error in setting aside the concurrent findings of the Trial Court and the First Appellate Court. According to the learned counsel, the concurrent findings could not be set aside until and unless a case of misreading or non-reading of material 'evidence is established. He has also argued that in the instant case, the High Court has not pointed out any misreading or non- reading of evidence and, thus, it was not justified to set aside the findings of the Trial Court and the First Appellate Court. He has also referred to paragraph 11 of the plaint and has submitted that the partition proceedings were also not sustainable because the respondents were already in possession of the land in excess of their legal share; nor they could seek the partition of the joint holdings by the Revenue Authorities. According to the learned counsel, a co-sharer can seek the partition of joint holdings only if he is in possession of land lesser than his fractional share and not otherwise. He has vehemently argued that a Civil Court has the jurisdiction to annul the partition proceedings if fraud is established or it is shown that the Revenue Authorities have acted in excess of their jurisdiction by allotting more share to a co-sharer than his amendment. He has also argued that Muhammad Khalid, one of the appellants, appeared as attorney for other co-sharers in the appeals before the Revenue Authorities and, thus, he was not debarred from filing a civil suit merely because he did not challenge the partition proceedings in his personal capacity. He has cited following authorities to substantiate his contentions:--- ' In a case reported as Mustaqim v. Sher Bahadur (PLD 1962 Peshawar 14), it was held that as the pre-emptor was not acting in his personal capacity but in representative capacity, while associating himself with the sale, it cannot be said that he had waived his right of pre-emption.
' In a case reported as Shyamsundar Pd. Gupta v. Darbhangi Rai (AIR 1960 Patna 420), it has been held that erroneous finding on a question of fact by the Courts below can be set aside by the High Court only if it is not supported by any evidence on the record.
' In a case reported as Shamsuddin Ahamed v. Suresh Chandra Dey (AIR 1936 Calcutta 22), it has been held that the conclusion based on documentary evidence is binding on the parties in second appeal.
' The learned counsel has also cited a case allegedly reported as AIR 1953 Pepsu 415 but the perusal of the relevant law journal shows that there is no such authority; the relevant section of the said law journal ends at page 208; similarly, there is no case reported as PLD 1950 (Revenue) 1161 because the relevant section of the said journal ends at page 88.
8. In reply, Raja Muhammad Siddique Khan, Advocate, the learned counsel for the respondents, has controverted the arguments advanced on behalf of the appellants that the partition proceedings were kept secret from the plaintiffs-appellants. He has argued that some of the defendants were proceeded ex parte after issuing notices and publishing the proclamation in the newspapers while Alif Din, the predecessor-in-interest of the appellants Nos.l to 3, herein, appeared before the Revenue Authorities concerned through Mr. Lal Hussain, Advocate, and got ex parte proceedings against him annulled. He has referred to the relevant documentary evidence in support of his contention which has been relied upon by the High Court. He has further argued that Muhammad Khalid, one of the appellants, who is son of said Alif Din, deceased, has been acting as a 'Mukhtar' for Qurban and others before the Appellate Revenue Authorities but he did not appeal at any stage that Alif Din, his father, had died but his legal representatives were not brought on the record. The learned counsel has referred to Rule 5 of the Rules known as West Pakistan Land Revenue Rules, 1968, and has contended that the death of a party in the revenue proceedings would not result in the abatement of the proceedings, rather the Revenue Officer is empowered to implead the legal representatives in the proceedings at any stage. He has argued that as the order of partition had been passed by the Revenue Assistant in June, 1977, whereas according to the Appellants, Alif Din, died in September, 1977, after the order for partition had been made. Thus, he has argued that implement of his legal heirs in partition proceedings was not necessary and would not adversely affect the said proceedings. In alternative, the learned counsel has submitted that even if it is assumed for the sake of arguments that the legal representatives of Alif Din should have been impleaded as party, it was necessary for the appellants to seek the remedy by filing appeal to the appellate Revenue Authorities as was done in case of Qurban and others; the appellants Nos.1 to 3 did not seek any such remedy because they were cautious of the fact that Alif Din, their predecessor-in-interest, had participated in the proceedings till the order for partition was made by the Revenue Assistant. The learned counsel has argued that the contention of the learned counsel for- the appellants, that non-implement of the heirs of Alif Din in partition proceedings was fatal to the said proceedings is without any force. The learned counsel has further argued that the Trial Court and the First Appellate Court have proceeded on the premises that only the land situated in village Potha Sher was partitioned by the Revenue Authorities while their joint land which they owned in Potha Bangash was not partitioned and, thus, the partition proceedings were not sustainable. The learned counsel has argued that it is clear from the very plaint filed by the plaintiffs-appellants in the civil suit that land situated in both the villages, namely, Potha Sher and Potha Bangash was partitioned by the Revenue Authorities and separate 'Sanad Namas' were issued as a result of partition of the land situated in each of the said villages. The learned counsel has contended that the Trial Court and the First Appellate Court also ignored the fact that some of the respondents were issued notices and, thereafter, they were preceded ex parte after publishing the proclamation in the newspapers. The learned counsel has contended that the relevant documentary record, which has relied upon by the High Court, was on the record but both the Trial Court and the First Appellate Court did not advert to that and held that partition proceedings were kept secret from the plaintiffs-appellants. Thus, he has contended that it cannot be said that when the wrong approach was made to the case and the question of fact was decided without adverting to the relevant evidence, the findings given by the Courts below are sacrosanct and could not be disturbed in second appeal. He has vehemently controverted the arguments advanced on behalf of the learned counsel for the appellants that the High Court has committed any error in setting aside the concurrent findings of the trial Court and the First Appellate Court. The learned counsel has also contended that the partition proceedings carried out by the Revenue Authorities cannot be challenged in the Civil Court by way of civil suit until and unless a case of lack of jurisdiction or flagrant disregard to law is established. He has contended that no such eventuality exists in the present case and judgment and decree passed by the High Court do not suffer from any legal infirmity.
9. We have given due consideration to the arguments raised at the Bar. It may be observed that the perusal of the plaint shows that the joint holdings of the parties in both the villages, namely, Potha Sher and Potha Bangash, were partitioned by the Revenue Authorities. The trial Court and the First Appellate Court were not correct to proceed on the premises that only the joint land owned by the parties in village Potha Sher was partitioned; the High Court has also come to the conclusion on the basis of relevant record that the land was rightly partitioned according to the fractional shares of the parties in their joint holdings in both the said villages. It is well-settled principle of law that it was for the Revenue Authorities to see as to out of which of the survey numbers, the deficiency in the share of a co-sharer was to be made-up. The grouse of the appellants, as has been contended by the learned counsel for the appellants, appears to be that as a result of private partition, the land measuring 2 Kanals situate in village Potha Sher was given in the ownership of the defendants-respondents as a result of the partition made by the Revenue Authorities. It may be pointed out herein that the Revenue Authorities can give exclusive ownership to a co-sharer by partition even if he was not previously in possession of the same.
10. The contention of the learned counsel for the appellants that the plaintiffs; appellants were given less share than their entitlement is also without any force, because nothing has been brought on the record to show that the fractional share allotted in partition proceedings to the plaintiffs-appellants was lesser than their entitlement in the holdings situated in the aforesaid two villages. It may also be observed here that the mere fact that the land measuring 2 Kanals which was in the possession of the plaintiffs-appellant prior to the partition proceedings does not deprive the respondents to seek partition of the joint property and get the deficiency of their fractional share made up. Mere possession in pursuance of the private arrangement does not deprive the other co-sharer of his right to seek the regular partition and get his due share in the joint land.
Thus, the contention of the learned counsel for the appellants that the defendants-respondents were not entitled to seek the regular partition from the Revenue Authorities is not tenable and is hereby repelled.
11. Similarly, we are of the view that as the order for partition by the Revenue Authorities had been passed before the death of Alif Din, the predecessor-in-interest of the appellants, it was not necessary to implead his legal representatives in the partition proceedings, especially so when they keep mum and did not challenge the partition proceedings before Appellate Revenue Authorities on the ground of their non- implement before the Revenue Authorities.
' In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs.