1. ' Saadullah Khan, son of Nawab Ghulam Qasim Khan, of Tank brought a suit for partition of the premises known as Tank Fort situate in Tank city amongst the legal heirs of Nawab Ghulam Qasim Khan. It was contended that the suit premises after the death of their predecessor-ininterest, namely, Nawab Ghulam Qasim Khan, remained in joint possession of the plaintiff and the defendants and that defendants Nos.1 to 11 i,e, the legal heirs of Nawab Qutabuddin Khan, brother of plaintiff Saadullah Khan started interference in the joint ownership/possession of the suit site, making construction, etc., without the consent of the co-owners with a view to deprive the plaintiff of his legal/Sharai share. The suit was hotly resisted by the defendants and on the pleadings of both the parties, the trial Court framed the following issues:--
(1) Has the plaintiff cause of action?
(2) Is the suit in time?
(3) Is the suit properly valued for the purposes of court-fee and jurisdiction?
(4) Is the suit competent in its present form?
(5) Whether Nawabzada Saadullah Khan previously defendant No,8 transposed as plaintiff vide this Court order, dated 15-1-1976 is entitled to the preliminary decree of partition as has been prayed by him and in his amended plaint, dated 12-2-1976?
(6) Relief.
2. ADDITIONAL ISSUES:
(1) Whether the rights of defendants Nos.16 to 23 are protected as they have made purchase from Naibat Khan if so, its effect?
(2) Whether defendants Nos.16 to 23 have made any improvements, if so, its extent and effect?
3. ' By his judgment and decree, dated 18-3-1992, the Civil Judge II, D.I. Khan granted a preliminary decree of partition to the extent of 1/4th share in the suit property in favour of the plaintiff.
4. Aggrieved by the said judgment and decree Nawabzada Naimat Khan etc. (sons of the Nawabzada Qutabuddin Khan) filed appeal against Qaisar Khan etc. (legal heirs of plaintiff Saadullah Khan, who died during the pendency of the suit), and the learned District Judge, Tank by his judgment and decree, dated 23-12-1993, finding the decision of the trial Court a correct one, dismissed the appeal, obliging Nawabazada Naimat Khan etc. To challenge the vires of the judgments and decrees of the two Courts below through the civil revision petition in hand under section 115, C.P.C.
2. It is not disputed that the suit property was the exclusive ownership of Nawab Ghulam Qasim Khan. It is equally admitted that Ghulam Qasim Khan developed differences with the then colonial Rulers in the sub-continent and he was imprisoned and while in custody he made some arrangements for the proper look after of the property including the disputed Tank Fort and Nawab Qutabuddin Khan, the eldest son of Nawab Ghulam Qasim Khan, as a custom then prevailing, became the custodian of the property. All the legal heirs of Nawab Ghulam Qasim Khan were putting up residence in the said Fort. Nawab Ghulam Qasim Khan died while in prison whereafter differences arose between his legal heirs culminating in a release deed entered into between Nawab Qutabuddin Khan and Nawab Saadullah Khan, besides their 3rd brother Muhammad Saeed Khan. According to this release deed, the parties came to a settlement according to which all the existing and previous settlement relating to movable and immovable properties i,e, the properties left by Nawab Ghulam Qasim Khan were supereseded and the following settlement for a term of 55 years was struck. Needless to mention here that while Nawazada Saadullah Khan.Was called the releaser or Nawab Qutabuddin Khan and Nawabzada Muhammad Saeed Khan were called the releasees according to the aforesaid release deed. The terms of the settlement were as follows:-- "That the releasees of the second part shall forthwith hand over all the family lands situated at Kot Azam in Tank Tehsil roughly measuring about 45 thousand Kanals to the releaser. Releaser will have full rights to enjoy their usufruct for 55 years. Nawabzada Qutabuddin Khan of the second part shall pay a sum of Rs,125 (one hundred and twenty-five) per mensum to the releaser out of his pension in which behalf Nawab Qutabuddin Khan has executed a written authority for the Government to deduct the said sum from his pension and pay it to the releaser directly. That Nawab Qutabuddin Khan of the second part shall get redeemed for the releasers his jewellery which is pawned with a Hindu for an amount not exceeding Rs,4,500 inclusive of interest. Nawab Qutabuddin Khan of the second part shall pay half the amount to the releaser under the decree mentioned above i,e, No,23, dated 31-8-1931 passed by the Sub-Judge, Tank in cash or in kind or in the form of land. The releaser shall give up permanently his existing residence at Tank for the future and shall reside permanently at Dera Ismail Khan, Nawab Qutabuddin Khan of the second part shall provide suitable residence for the releaser and the initial cost for providing such residence shall be borne by the Nawab. The question of suitability of the residence will be subject to approval of Major K.C. Packman."
5. ' The contentions of the defendants and the resistance made by them with regard to the legal share of the plaintiff in the Fort in dispute is the term of the release deed calling upon Saadullah Khan to permanently give up his existing residence at Tank for the future. This release deed is not controverted by the parties in suit rather each of them seek premium in his favour out of the terms thereof. Firstly, giving up residence permanently at the free choice does not imply permanent deprivation from legal and Sharai share because it has nowhere been agreed/committed that Saadullah Khan ceases of his Sharai and legal rights in the Estate of his father. The clog referes only to giving up residence at Tank and, instead, shifting to D.I. Khan for the said purpose. Impliedly, therefore, for all intents and purposes Saadullah Khan, plaintiff preserves all his legal and Sharai shares despite the said clause in the release deed. Besides the right of residence at Tank was qualified on the basis of the release deed with certain prerequisites, in that, releases had bound themselves to forthwith hand over all the family lands situated at Kot Asam in Tehsil Tank measuring about 45000 Kanals with full rights to enjoy their usufruct for 55 years. The second term of the release was that plaintiff Saadullah Khan would be provided a suitable residence at D.I. Khan and such suitability was subject to approval of Major K.C. Packman.
3. Regarding the condition in the release deed that land measuring 45,000 (forty-five thousand)
6. Kanals with full rights of enjoying usufruct for 55 years by Saadullah Khan, plaintiff, from the statement of D.W.9, namely, Sona Khan, A.D.K., D.I. Khan, it is clear that vide Mutation No,3321, 3322, 3323 (Exh.P.W.9/1 to Exh.P.W.9/3) the said land was surrendered in favour of the Government under Land Reforms in 1959 i,e, within a span of 18 years of the release deed and as such the condition regarding lease of the land for 55 years in favour of plaintiff Saadullah Khan was not fulfilled.
7. Regarding the other condition providing a residential house at D.I. Khan, suitability whereof was subject to approval of Major K.C. Packman, Deputy Commissioner, D.I. Khan, not an iota of evidence has been brought forth suggesting fulfilment of this clause of the release deed. Firstly, through the release deed nowhere plaintiff Saadullah Khan agreed to cease all his legal rights in the inheritance of his late father, Nawab Ghulam Qasim Khan, and secondly, the substantial condition of the said release deed having not honoured/fulfilled, it does not fit in the mouth of the defendants that Saddullah Khan, plaintiff had surrendered all his rights in the inheritance of his deceased father. The defendants also tried to place reliance on a registered gift deed by Nawab Ghulam Qasim Khan in favour of Nawab Qutabuddin Khan his eldest son but by subsequently executing the release deed all the previous deeds executed in respect of the suit property had been repudiated as is clear from the following language of the release deed:-- "Again various disputes having arisen between the parties, the parties have arrived at an amicable settlement whereby all the existing and previous settlements, relating to movable and immovable properties (i,e, properties left by Nawab Ghulam Qasim Khan and other properties in possession of Nawab Qutabuddin Khan and their respective rights therein, have been superseded and the parties have thereby agreed to abide by the following settlement for a term of 55 years from the date."
8. ' Thus, the parties agreed to repudiate all the previous settlements and the release deed in question became the deciding factor regarding management and utilization of the property left by Nawab Ghulam Qasim Khan. The defendants having failed to strictly abide by the settlement arrived at through the said release deed, as discussed above, the said release deed, too, does not stand in the way of Saadullah Khan, plaintiff to inherit his legal share in the property left by Nawab Ghulam Qasim Khan being undisputedly son of said Nawab Ghulam Qasim Khan and to apply for partition of his share in the suit Fort. Both the Courts below have concurrently held the plaintiff entitled to the decree prayed tor. Learned counsel for the petitioner has miserably failed to point out any illegality, irregularity, misreading of evidence or non-reading of material evidence or any jurisdictional error in coming to the concurrent findings of fact.
9. ' Consequently, finding no merit in this civil revision petition, it is hereby dismissed. Leaving the parties to bear their own costs.