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Civil Petition No. 289 of 1981, decided on 13th November,1985.
(On appeal from the judgment and order of the Lahore High Court at Lahore, dated 22‑12‑1980 passed in Regular Second Appeal No. 96 of 1978).
‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 100 Concurrent findings of fact‑‑Set aside in second appeal‑‑Leave to appeal granted to consider whether High Court had (i) legally erred in setting aside concurrent findings of fact recorded in suit by trial and first; appellate Court, and (ii) misread deed of agreement resulting in miscarriage of justice.
Ch. Khalilur Rehman, Senior Advocate Supreme Court instructed by Sh. Salahuddin, Advocate‑on‑Record for ‑Petitioner.
Rana Maqbool Ahmed Qadri, Advocate‑on‑Record for Respondents.
Date of hearing: 13th November, 1985.
‑The respondent. No. 1 filed a suit for possession of his share through partition of the disputed property situated in Mandi Muridke, District, Sheikhupura which was described as Alif, Bay, Jeem, Dal, Ray and Kaf in the plaint.
2. It was averred by the petitioner 0i'his written statement' that the property mentioned in item Jeem and Dal of the plaint was owned by him and, subject to his such right, he had no objection to the partition of the suit property. The following issue was, therefore, framed in the suit:
"Whether property mentioned in items Jeem and Dal of the plaint belonged to the defendant."
3. The learned trial Court, came to hold that the property mentioned in paras. Jeem and Dal of the plaint belonged to the petitioner and a preliminary decree was passed with a direction to the Sub‑Divisional Officer of the District Council, Sheikhupura to effect the partition. The respondent No. 1 filed appeal and except the petitioner, the other respondents were transposed as appellants. The appeal was dismissed by the learned District Judge and the decree of the trial Court was affiretned. The respondents filed Regular Second Appeal in the High Court; which was accepted as per impugned Judgment, dated 22‑12‑1980 and the decree passed in the suit was modified to the extent that the entire property in dispute, including the one set out in detail in sub‑pares. Jeem and Dal of para. 1 of the plaint, was ordered to be partitioned amongst the parties according to the specified shares.
4. It was contended by the learned counsel that in the first place the learned High Court had legally erred in setting aside the concurrent findings of fact recorded in the suit by the learned trial and first appellate Court and secondly the learned High Court had misread the deed of agreement Exh. P.l which had resulted in miscarriage of justice. The learned counsel invited our attention to the photostat copy of the said document.
5. The contentions raised hereinabove require examination. Leave is accordingly granted. Security Ra.2,500. The interim order, dated 11‑3‑1981 shall continue pending disposal of the appeal.
M.I. Leave granted.
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