No person can have favorite portion in joint property without consent of others

PLJ 2014 Peshawar 246 Present: Ikramullah Khan, J. SALEEM KHAN and 8 others --Petitioners versus QAYYUM KHAN and 34 others --Respondents C.R. No. 375-P of 2013, decided on 21.6.2013. Civil Procedure Code, 1908 (V of 1908)-- ----O. I, R. 10--Necessary party to proceeding--Final and complete partition--Delivery of specific area in joint owned property is impossible without joining whole co-owners-- Unrebutted revenue record--Partition yet have to be taken and specific portion of land, would have to be delivered in proceeding before granting final decree--Petitioner, would be in their competency to raise any legal objection, thereof, if law and rules on subject otherwise allow them--No co-share can be kept in possession over joint property, to select specific portion in accordance to his adjustment well without consent of others co-sharer--Customary arrangement or family arrangement in regard to possession over joint property never vested any person with ultimate right to retain specific, valuable portion of land without proper legal partition. [P. 248] A & B Mr. Mukhtiar Ahmad , Advocate for Petitioners. Date of hearing: 21.6.2013. Judgment Petitioners by instant petition have challenged the impugned judgment dated 11.02.2013 passed by the learned ADJ-III, Swabi , whereby the appeal of petitioners was dismissed and the judgment and decree of the learned Civil Judge-IV, Swabi was maintained.

2. Brief but relevant facts are that respondents 1 to 4 (thereafter respondents only) instituted a suit for possession through partition in respect of immovable property, well explained thereof in the heading of the plaint, being co-owner thereof.

3. The suit was contested by petitioners, and on conclusion of trial, the learned Civil Judge, Swabi passed judgment and decreed the suit in favour of respondents in regard to their ancestral shares in the joint disputed property. Appeal preferred thereof by petitioners against the aforesaid judgment was dismissed by the learned ADJ-III, Swabi .

4. The learned counsel for the petitioner contended that, both the impugned judgments passed by both the Courts below are erroneous, based on misreading and nonreading of evidence, particularly to the site map allegedly prepared by the Halqa Patwari , the long standing construction thereon the disputed land. He further, submitted that, as per the Revenue record, thereof, many persons were shown as joint owners in the joint disputed property but they were not made party to the suit, without making them party, no effective decree could be passed; however, the learned Civil Judge failed to appraise the matter in its true sense; that both the learned Courts below, were bound to frame issue in this regard; that the petitioners had raised a number of questions in its memorandum of appeal, which pertained to legal and factual aspect of case, but the learned appellate Court below failed to address the grounds raised thereof in the memorandum of appeal, hence, not exercised the jurisdiction vested thereof in the Court, which has rendered the impugned judgment nullity in eye of law.

5. The impugned judgment is outcome of illegality and irregularity caused thereof, not sustainable.

6. I carefully examine the record and anxious consideration was given to the arguments delivered at the bar by the learned counsel.

7. The un-rebutted, revenue record, produced thereof by the Revenue Official, placed on record of the case, during inquiry before the trial Court, revealed thereof that respondents were recorded as co-sharer, co-owner thereof, which fact could not be rebutted. In such view of the cast, nothing remains nor for discussion thereof. The petitioner, never challenged, the revenue entries, in the disputed property in regard to the ownership of respondents. Respondents are recorded as co-owner in the joint, un-partitioned corpus of the disputed land, which has attained the status of building site thereof, and when no specific plea had been raised by the petitioners in regard to oust respondents from the disputed property, nor petitioners ever agitated thereof in their pleading that how, they claim to be owner of the whole disputed property. Then, they could not appose the partition of the disputed property thereof.

8. No evidence shall be placed contrary to the pleadings of parties. The rule of evidence in this regard is that " secundum allegate it probate" meaning thereby that facts alleged thereof in pleading shall be proved and nothing else. This rule is consistently followed by every Civil Court , established thereof in the country.

9. As the petitioners has not alleged thereof, in their pleading the ownership of the whole disputed property or the shares recorded thereof in the name of respondents, petitioners could not be permitted to raise a new stance not previously agitated in their pleadings.

10. The learned Civil Judge, has did nothing more or less, but has affixed stamp of attestation, verification of proprietary shares already recorded thereof in the revenue record/papers in the name of respondents.

11. However, the partition yet have to be taken and specific portion of land, would have to be delivered in proceeding before granting final decree. The petitioner, would be in their competency to raise any legal objection, thereof, if the law and the rules on the subject otherwise allow them.

12. Final and complete partition, and delivery of specific area in a joint owned property is impossible without joining the whole co-owners recorded thereof in the joint property. As already discussed hereinabove, so far only preliminary decree has been awarded, further steps has to be taken, in course of proceeding for final decree, the learned Civil Judge in accordance with the provision contained there under Rule 10 of Order I of CPC, may array necessary party to the proceeding, in order to settle down the dispute once for all, in accordance with the partition Act.

13. No co-share can be kept in possession over the joint property, to select specific portion in accordance to his adjustment well without the consent of others co-sharer. Customary arrangement or family arrangement in regard to possession over the joint property never vested any person with ultimate right to retain the specific, valuable portion of land without proper legal partition I fortify my this view by the judgment of Hon'ble Supreme Court, delivered thereof in case of " Noor Muhammad versus Allah Ditta " (PLD 2009 S.C. 198).

14. No infirmity or fault is deductable in the impugned judgment nor any illegality or irregularity is susceptible thereof, and in such view of the matter, I find the instant revision petition, meritless, hence it is accordingly dismissed in LIMINE. (R.A.) Petition dismissed