Abdur Rauf son of Sikandar Din, caste Kaslimiri, resident of Hazroo, Tehsil and District Attock, died leaving behind the petitioner and the respondents as his legal heirs. Admittedly he was the owner in possession of the properties described in paras. Nos. 1 to 4 mentioned in the heading of the plaint of the suit, filed by Muhammad Riaz etc. Respondents/plaintiffs against the petitioner Abdur Razzaq in the Court of the learned Civil Judge, Attock, for possession through partition on 12-3-2001 claiming 11/13 shares being the legal heirs of the said Abdur Rauf. It was contended that the suit property is joint between the parties and there is no other sharer except the parties of the suit. It was prayed that the suit be decreed.
2. The petitioner-Abdur Razzaq resisted the suit on the ground that the plaintiffs have no cause of action to file the suit, the description of the suit property is not correct, the property has been already partitioned and the suit property is not joint between the parties.
3. From the divergent pleadings of the parties, the learned Civil Judge framed the following issues:- -- (1)Whether the property disputed is still joint between the parties, if so, what is share of plaintiffs in the disputed property? OPP (2)Whether the plaintiffs has no cause of action to file this suit? OPD (3)Whether the suit is not maintainable due to non-joinder necessary parties? OPD (4)Whether the suit is not maintainable in its present form? OPD (5)Whether the plaintiff is entitled to decree for partition as prayed for OPP (5-A)Whether the suit property has already been partitioned between parties? OPD (6)Relief.
4. The leaned Civil Judge decided Issues Nos. 1, 5 and 5-A in favour of the respondents and observed that the suit --property has not already been partitioned between the parties. The same is still joint between the parties, and therefore, plaintiffs are entitled to the decree for the partition prayed for. He proceeded to decree the suit vide his judgment, dated 3-12-2001. In --appeal the learned Additional District Judge, Attock maintained the findings recorded by the learned Civil Judge and dismissed the appeal on 3-7-2002.
5. The learned counsel for the petitioner contends that the property has already been partitioned and the same is not joint between the parties. To substantiate his, arguments he has referred to the statement of Muhammad Riaz one of the plaintiffs respondents and contends that respondents plaintiffs were estopped to raise the plea that the property is still joint between the parties. Reliance has been placed on 1980 CLC 296 Further contends that both the Courts below recorded the findings that the property is still joint between the parties is result of misreading of evidence.
Reference has been made to the copy of the Survey Register (PT-I) Exh. P.4 to Exh.P.7 in which according to the learned counsel the names of the respondents in possession of the property as owners have been mentioned. It is further argued that the private partition between the parties has been acted upon, therefore, both the Courts below fell in error while granting the decree for possession through partition in favour of the respondents. He has relied on PLD 1967 Lah. 407.
6. I have considered the arguments of the learned counsel for the petitioner and perused the record.
7. The sole question in this case needs determination is that whether there was family settlement between the parties and private partition took place between them which is acted upon and the parties are estopped under the Article 115 of the Qanun--e-Shahadat Order to ask for partition of the joint property.
8. It is admitted between the parties that their predecessor namely Abdur Rauf was the owner in possession of the disputed property. After his death the property is devolved upon them. From the documents Exh.P.3 (Register Haqdaran-e-Zamin) for the year 1996-97, it is proved that the property is joint between the parties. Parties to the suit are entitled to get the inherited property being the legal heirs of their father namely Abdur Rauf. The sharers of the parties are also admitted. The dispute relates to the division of the property between the parties according to their shares. It is the common ground between the parties that private partition took place between the parties but the case of the respondent is that the private partition is not accepted. No document in proof of the private partition has been placed on the record. Simple statement of Muhammad Riaz that the private partition took place in 1995 in cross-examination does not prove that the partition has taken place in accordance with the entitlements and shares of the parties. The statement made by Muhammad Riaz in cross-examination that the partition of the property was taken place in 1995 cannot be taken as an admission and the conclusive proof of the fact that the property had already been privately partitioned between the parties under Article 115 of the Qanun-e-Shahadat Order, Muhammad Riaz was not competent to depose on behalf of all the plaintiffs. No doubt he was special attorney of his brother Tariq Mehmood but his statement cannot be considered as admission of the fact that the property was privately partitioned between the shareholder according to their entitlements. The PT-1 Survey Report Exh.P.1 to Exh.P.7 referred by the learned counsel for the petitioner cannot be relied for the purpose of proving the fact that the property has been privately partitioned. It is well-settled law that Survey Register (PT-1) maintained by the local authorities is for the purpose of collecting the property tax.
9. Now I will advert to the case-law relied by the learned counsel for the petitioner. In case reported as Fazal Muhammad and others v. The Settlement and Rehabilitation Commissioner and others (PLD 1967 Lah. 402) it was held that "a co --sharer should be allowed to keep possession of the land improved by him unless it appears that land equal in original value cannot be awarded to another party from the rest of the joint holding. Otherwise, possession should be respected up to the extent of each share--holder's share in different classes of land". In case of Muhammad Ibraim v.
Muhammad Sharif and 7 others (1980 CLC 296), while interpreting the provisions of section 115 of the Evidence Act (i) of 1872, it was held that "Co-sharers allowing one of co-sharers, by their declaration and act, to retain possession of land on basis of private partition, such co-- sharers estopped to deny effect of family arrangement". The above-cited two referred cases and the case of Abdul Wahab Khan v. Tilkdhari Lal and others (AIR 1927 Privy Council 208) came up for consideration. In case of Muhammad Ibrahim (1980 CLC 296), it was held that the person occupying land under private partition shall be considered to be ostensible owner of land in his possession. In case of Sharaf Sultan v. Sher Muhammad (PLD 1963 Lah. 606), it has been ruled that "a family arrangement if not acted upon is not binding on the party agreeing to such arrangement".
10. From the facts pleaded and documents produced by the parties, it cannot be said that family settlement if any has been acted upon and all the co-sharers are occupying the land under the private partition, and therefore, they can be considered to be ostensible owners of the land and the property according to their shares.
11. There is concurrent finding of fact on. The record by the competent Courts of jurisdiction that the property has not been privately partitioned and is still joint between the parties, and therefore, decree for possession through partition has been awarded in accordance with the shares of the parties which does not call for any interference in exercise of revisional jurisdiction of this Court under section 115, Cr.P.C. Resultantly, this civil revision fails and is dismissed in limine.
Q.M.H./M.A.K./A-630/L