Partition of Land based on Oral Partition and Family Settlement

Partition of Land based on Oral Partition and Family Settlement Case Laws Civil Law Civil Revision Concurrent Findings Estoppel Family Settlement Knowledge - Civil Law Lahore High Court Land Revenue Litigation & Arbitration Partition Solutions - Civil Law Mr. Justice Muhammad Sajid Mehmood Sethi in his judgment has decided the issue regarding partition of land based on oral partition and family settlement in Civil Revision No. 624 of 2016.

1. Through instant revision petition filed under Section 115 of Code of Civil Procedure, 1908, the legal heirs of Nazir Ahmad (deceased) have assailed judgments and decrees dated 21.09.2013, passed by learned Civil Judge, Gujranwala, and 18.01.2016 passed by learned Addl. District Judge, Noshehra Virkan, whereby suit and appeal filed by Nazir Ahmad were respectively dismissed.

2. Brief facts of the case are that Nazir Ahmad filed suit for declaration and permanent injunction against respondents, claiming exclusive ownership of joint land measuring 33-Kanals & 18-Marlas out of 87-Kanals & 19-Marlas on the basis of oral partition and subsequently family partition deed dated 15.11.2003 (Ex.P-1), was executed between Nazir Ahmad and Bashir Ahmad, predecessors in interest of the parties. Since then they were in cultivating possession of the partitioned shares. It was alleged that Bashir Ahmad in connivance with revenue authorities had got entered his name in Khasra Girdawari for the year 1993 to 2003 regarding the whole property which was got corrected on the application made by Nazir Ahmad before District Collector, Gujranwala, vide order dated 04.09.2004. Since then both the parties have been shown in cultivating possession of their respective shares. After death of Bashir Ahmad, present respondents, again claiming joint ownership, moved an application for permanent partition under section 135 of the Land Revenue Act, 1967 before Assistant Collector, who allowed the partition vide order dated 27.07.2011.

3. Nazir Ahmad filed suit for declaration and permanent injunction on 11.12.2010, which was contested by respondents/defendants by filing written statement. Out of divergent pleadings of the parties, learned trial Court framed following issues:

i) Whether wrong description of the suit property has been mentioned by the plaintiff, if so, what is the correct detail thereof? OPP

ii) Whether the predecessor of defendants namely Bashir Ahmad had provided the property to plaintiff and the plaintiff had improved the agricultural status thereof by expending huge sum of money? OPP

iii) Whether the plaintiff and predecessor of defendants had through the Punchiat mutually portioned the property vide deed No.145 dated 15.11.2003 as alleged by the plaintiff? OPD

iv) Whether the plaintiff has concealed the real state of facts, has not come to court with clean hands and intends to harass the defendants, thus, the instant suit is liable to dismissal with special costs? OPD

v) Whether plaintiff is entitled to the decree for declaration and permanent injunction as prayed for? OPP

vi) Relief.

4. After recording of evidence produced by the parties and hearing the arguments, learned trial Court dismissed the suit vide judgment and decree dated 21.09.2013.

5. Feeling aggrieved, Nazir Ahmad filed appeal before learned District Judge which was also dismissed vide judgment and decree dated 18.01.2016. Through instant petition both the afore-said judgments and decrees have been assailed.

6. Learned counsel for petitioners submits that observation of learned Courts below regarding Ex.P-1/family settlement deed dated 15.11.2003 are in conflict with the law laid down in “Din Muhammad and 6 others v. Mehr Ali Khan and 2 others” (PLD 1978 Karachi 267) and “Ánwar Khan v. Abdul Manaf” (2004 SCMR 126). He adds that Ex.P-1 was proved by the statements of PW-1 to PW-4 and PW-6. He further submits that all the PWs verified that Ex.P-1 was thumb marked by Bashir Ahmad, his nephew Muhammad Rafique, Nazir Ahmad and the marginal witnesses. He adds that impugned judgments and decrees have been passed not only in violation of the law laid down by superior courts but also are based on mis-reading and non-reading of evidence brought on record.

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