The relevant facts for the disposal of this civil revision are that the respondent/ plaintiff filed a suit for possession through partition regarding Shop No.3837-B. The petitioner/defendant contested the suit and on the pleadings of the parties, following issues were framed:- Issues: (1)Whether the plaintiff is entitled to possess half share of the suit shop as prayed for? OPP (2)Whether the plaintiff is estopped to sue on account of his words and conduct? OPD (3)Whether the suit has not been valued properly for the purposes of court-fee and jurisdiction?
OPD (4)Whether the suit is not maintainable in its present form? OPD (5)Whether the suit is bad for non-joinder of necessary parties? OPD (6)Whether the defendant is entitled to special costs under section 35-A, C.P.C.? OPD (7)Relief.
2. After recording evidence, learned trial Court dismissed the suit brought by respondent/plaintiff vide judgment and decree dated 18-9-1995. The plaintiff then filed appeal which was accepted by learned District Judge, Khushab vide judgment dated 10-9-1996. Hence this revision petition.
3. Learned counsel for the parties have been heard and record perused.
4. Learned counsel for the petitioner submits that the parties owned two shops bearing No.3837-B and No.40 in Ithaad Market but respondent/plaintiff filed suit for partition of Shop No.3837-B, only, therefore, his suit was liable to be dismissed as it was for partial partition. Further submits that the trial Court did not frame proper issues and has prayed for remand of the case. On the other hand learned counsel for the respondent submits that Shop No.40 in Ithaad Market was owned by Gul Muhammad (respondent) as he had purchased the same in open auction in 1952 when the petitioner was minor. Further submits that said shop was transferred in the name of the respondent alone, therefore, this was not a case for partial partition.
5. I have considered the submissions made by the learned counsel for the parties with care.
Admittedly the disputed shop was owned by the parties jointly. So plaintiff could file this suit. As regards Shop No.40 in Ithaad Market, said shop was purchased by the respondent in open auction and proprietary rights have been transferred in his favour. The petitioner has failed to produce any document to show that the said property was jointly owned by the parties. As such it was not a case for partial partition. The learned District Judge appreciated the evidence of the parties. Trial Court had framed proper issues on the basis of pleadings of the parties. The petitioner never raised such objection during trial of case.
6. Learned counsel for the petitioner could not point out any illegality or infirmity in the impugned judgment nor any misreading of evidence by the learned District Judge. I therefore, find no justification to set aside the same. As such this petition has no force and the same is accordingly dismissed. No order as to costs.