MOHAMMAD YAQUB KHAN vs AZIM KHAN AND OTHERS
This matter arises from a petition for leave to appeal filed by a defendant against a judgment of the Peshawar High Court, which dismissed his second appeal in a declaratory suit concerning a small piece of open land measuring approximately 8 marlas. The core legal question revolved around whether the concurrent findings of fact regarding the joint ownership and unpartitioned status of the disputed land were vitiated by misreading of evidence. The Supreme Court held that the lower courts' concurrent findings were based on a proper appreciation of the evidence and that no misreading of evidence was established. The petition for leave to appeal was accordingly dismissed, affirming that the site remained unpartitioned joint property for the common enjoyment of the surrounding house owners and could not be partitioned.
- Whether concurrent findings of fact regarding joint ownership and partition can be assailed on the ground of misreading of evidence in a second appeal?
- Can an unpartitioned open space left for the common use of surrounding residential properties be partitioned when it would result in unusable small bits?
- Does the High Court possess justification to refuse interference in a second appeal when no misreading of evidence by the trial and appellate courts is established?
- Section 145, Code of Criminal Procedure 1898
1. ' MUHAMMAD AFZAL. ZULLAH, J.-Leave to appeal is sought by a defendant in a declaratory suit from a judgment of the Peshawar High Court dated 11th March 1978, whereby his second appeal was dismissed.
2. ' The respondents' (plaintiffs') plea before the learned trial Judge was that a small piece of open land known commonly as daga, measuring about 8 marlas, surrounded by the houses of the parties was Jointly owned by all the parties concerned and that despite partition of other.
3. Properties, -by their ancestors this small vacant space was allowed to remain in joint ownership and possession for better enjoyment of the residential properties around it." It was further asserted that the parties did use the land jointly for a very long time for the said purpose, but a year before the institution of -the suit, the petitioner started claiming exclusive rights therein. Proceedings under section 145, Cr. P. C. Commenced which ended in .a direction for the resolution of the dispute by a civil Court. The petitioner alone, out of about 70 defendands, contested the suit on various pleas-one being that he is the sole owner of the disputed land on account of the original partition during the last century and subsequently through family settlements.
4. ' Learned trial Judge held that 'this site remained unpartitioned from generations' and that "it was left over as a joint property for the common use of. The owners whose houses surround it. It was also held that a partition of the site would cut it into small bits which will be of no use to either of the parties. Accordingly, the suit was decreed with a declaration that "the suit site is joint property of the parties and it cannot be partitioned. It will be used for common enjoyment of the parties and none of the parties will make any abadi on it"..
5. Realising that there are concurrent finding; of fact on questions partition and/or ownership exclusive or joint, of the property, learned counsel has tried to assail the same on the plea of misreading of evidence. He has taken us through the statements of the Patwari concerned who prepared the site plan Exh. P. W.1/1, which has also been examined with his assistance. He has also read from copies of some exhibited documents relied upon from the petitioner's side in proof of the alleged partition of the site in question.
6. ' After hearing the learned counsel and perusing these documents as also another site plan Exh. P.
7. W. 2/1. We are satisfied that there was no misreading of evidence. The learned High Court was justified in refusing to interfere in second appeal. We accordingly dismiss this petition.