SADAR DIN vs Mst. KHATOON and others

ORDER

' KHALIL-UR-REHMAN RAMDAY, J.---This petition under Article 185(3) of the Constitution is directed against a judgment, dated 4-10-1999 passed by the Hon'ble Lahore High Court in Civil Revision No, 1354 of 1992 whereby the appellate judgment, dated 4-6-1992 passed by a learned Additional District Judge, Bhakkar was reversed which appellate judgment had set aside the judgment and decree, dated 28-2-1990 passed by a learned Civil Judge at Bhakkar as a result whereto the suit filed by the plaintiffs was decreed.

2. There were two brothers, namely, Siraj Din and Sadar- Din. After the death of Siraj Din, the said Sadar Din laid claim to the exclusive ownership of a house bearing No, D/249 situated in Mohallah Kheer Baat/Sabaz Shah of Bhakkar. The heirs of the said. Siraj Din were surprised by this claim of Sadar Din because this house was owned jointly by the said two brothers in equal shares. The said heirs of Siraj Din then felt compelled to file a suit in the Court of learned Senior Civil Judge at Bhakkar praying for a declaration that they were owners in possession of the above mentioned house No, D-249 to the extent of 1/2 and that the claim of Sadar Din to the exclusive ownership of the said house was fraudulent and fictitious. Sadar Din defendant resisted this suit by declaring that his brother, late Siraj Din had relinquished 1/2 of the share in the house in question in his favour and that the heirs of Siraj Din had thus no concern with the said property. In support of this- claim Sadar Din had offered a document (Exh. D.1) according to which alleged document Siraj Din had relinquished his 1/2 share in the house in qustion in favour of his brother Sadar Din. As a result of the trial the suit filed by the plaintiffs was decreed through the above mentioned judgment,dated 28- 2-1990 passed by a learned Civil Judge at Bhakkar. The appeal filed by Sadar Din defendant against the said judgment and decree was allowed by a learned Additional District Judge, Bhakkar through a judgment, dated 4-6-1992 as a result of which the suit filed by the plaintiffs was dismissed. The, heirs of said Siraj Din then approached the Honourable High Court through Civil Revision No 1354 of 1992 which was allowed through a judgment, dated 4-9-1999 as a result of which the appellate judgment was set aside and, the suit filed by the plaintiffs was decreed which decree was directed to be treated as preliminary decree with a direction to the learned trial Court to take steps for partitioning the suit property in question and then to pass a final decree in the matter.

3. Sadar Din has filed this petition to question the said revisional judgment of the Lahore High Court.

4. We have gone through the record in the light of the submissions made by the learned counsel for the petitioner and find that the impugned judgment of the Lahore High Court was not open to any exception. It was justifiably held by the Lahore High Court that the agreement in question through which Siraj Din had allegedly relinquished his share in the said property did not deserve any credit because the said agreement of relinquishment was without any consideration because no evidence could be led by the defendant to show that shop bearing No, E/72 A was also jointly owned by Siraj Din and Sadar Din and that in consideration of Siraj Din relinquishing his share in the house in question, his brother had relinquished his share in the said shop in favour of the said Siraj 'Dina This document (Exh. D.1) was thus found to be nullity in the eye of law on account of section 25 of the Contract Act, 1872.

5. In this view of the matter, we find no merit in this petition which is accordingly dismissed. Leave refused.