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Civil Petition for Leave to Appeal No.99‑R of 1984, decided on 15th April, 1984.

(On Appeal from the judgment of the Lahore High Court, Rawalpindi Bench, dated 11‑2‑1984 in C . R . No. 24 of 1984) .

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S.115‑‑Dispute between parties over ownership of land and partition thereof‑‑Question of exclusive ownership of petitioner and/or respondent already standing concluded by preliminary decree‑‑No case made out for interference‑ Leave to appeal refused.

Ch. Ghulam Dastgir, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 15th April, 1984

‑‑ Leave to appeal has been sought' from judgment dated 11‑2‑1984 of the Lahore High Court; whereby a Civil Revision arising out of a suit for partition of land, was dismissed.

Mst. Matlooba respondent claiming to be the owner in joint possession of certain Khasra numbers filed suit for partition against Dadu petitioner and another. It was resisted, amongst others, on the plea that although Mst Matlooba had purchased 14 Marlas of land from Manzoor brother of Dadu petitioner she at the time of filing the suit did not own that much land firstly, because Manzoor did not own it and secondly that "in any case Mst. Matooba alienated a part of the land in the same Khata. At this stage it may be mentioned that according to the learned counsel, in an earlier suit for joint possession in respect of the same land Mst. Matlooba had succeeded in obtaining a decree but she had not executed the same. Regarding this execution, it may be further pointed out that in the petition for leave to appeal a different position has been taken namely that "the constructive possession of the same was given to the plaintiff vide civil Court's decree dated 29‑9‑1965". Be that as it may a preliminary decree was passed in the suit for partition on 14‑7‑1976. It is admitted that this decree was not challenged and in due course attained finality. In the meanwhile a Local Commissioner having been appointed, the learned trial Court decreed the respondent's suit on the basis of the Report submitted by the Commissioner on 30th April, 1977. It is mentioned in the Report that the land under the relevant Khasra numbers had already been either built upon or has been brought under paths and streets and that only a small area, less than 14 Marlas, was available at the site which could by virtue of partition, be given to Mst. Matlooba.

The petitioner challenged the decree in appeal but without any success and his revision petition having been dismissed by the High Court, he has now sought leave to appeal of this Court. Learned counsel has raised two‑fold contentions: one, relating to the ownership of Manzoor and/or for that matter of Mst. Matlooba and two the mode of partition.

Regarding the first aspect of the case the learned Judge in the High Court rightly remarked that it stood concluded by the preliminary decree which having attained finality it could not be re‑opened. However, notwithstanding the expression of this view the learned Judge in the High Court also briefly dealt with the specific question of ownership and held that Mst. Matlooba did own, (he land claimed by her in the suit for partition.

The main argument of the learned counsel regarding the actual partition is based on the objections raised against the Report of the Local Commissioner. What has been stressed before us is contained in paras. 2, 3 and 4 of the objection petition. Nothing specific has been asserted regarding para 1. Objection in para. 2 is that the joint land had not been demarcated by the Patwari therefore, the Commissioner could not have completed his proceedings without the said formal demarcation. In para. 3 the objection was that it was necessary for the Commissioner to examine the revenue record regarding the ownership of the petitioner and further to have submitted his Report after ascertaining as to how much area was in his possession. In the last paragraph it is stated that the Commissioner measured a vacant plot which was in possession of the petitioner notwithstanding the fact that according to the revenue record it belonged to him.

As regards the question of exclusive ownership of the petitioner and/or the respondent as already commented it already stood concluded by the preliminary decree. The objection regarding absence of the Patwari has been taken care of in the Report of the Commissioner who stated that both the parties were present and that they had indicated and demarcated the land in question whereafter it was duly measured and a plan was accordingly prepared in accordance therewith. Learned counsel ultimately agreed that this was in fact done. Not only this he also near about the conclusion of the argument produced a copy of the site‑plan prepared and statements of the parties recorded by the Commissioner in this behalf. This document the learned counsel explained, could not be printed‑in the paper book and that it was brought by his client during the course of the arguments.

The statements of the parties recorded by the Commissioner on 28th of April, 1977 do not reveal any objection except with regard to the ownership and possession already noted above. When questioned regarding possession learned counsel stated that the petitioner had 14 Marlas share in the joint property and that he having sold 5 Marlas was in the possession of 9 Marlas which had already been built upon as a house which also included a courtyard. It has not been shown that the vacant land given to Mst. Matlooba formed part of the house and/or the courtyard. On the other hand, in the statement of petitioner recorded by the Commissioner on 28th April, 1977 he admitted that he had no objection to the land lying vacant being given to Mst. Matlooba.

That being so this petition has no force and is accordingly dismissed.

S. Q. Petition dismissed.

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