NASRULLAH KHAN through his Legal Heirs and others Versus Mst. QURESHA

ORDER

FAZAL ILAHI KHAN, J.---Haji Abdullah predecessor-in-interest of the petitioners instituted a suit in the Court of Civil Judge, Charsadda, against Mst. Quresha defendant/respondent now dead and substituted by her L.Rs, respondents, for declaration to the effect that he was the owner of the suit house on account of family arrangement and that he had given it out to Sardar husband of Mst. Quresha for residence as tenant. That Mst. Quresha has later on claimed to be the owner of the house through a gift made in her favour by Sardar her husband. She also claimed that the other defendants/respondents are living in the house as tenants on payment of Khakshora to her. The rest of the respondents/defendants alleged that they were the tenants of Mst. Quresha to whom the house has been gifted by her husband. After recording evidence of the parties the learned trial Judge held Haji Abdullah plaintiff to be owner of the house on the basis of partition deed Exh. P.W. 2/2 and that Sardar was his tenant in the house; hence, he was not competent to gift it away in favour of his wife. Accordingly, the plaintiff/petitioners' suit was decreed on 19-2-1981. The aforementioned judgment and decree was challenged in appeal before the learned Additional District Judge, Charsadda who permitted the parties to produce additional evidence in the form of certified copies which the parties did produce. On perusal of such record the learned appellate Court came to the conclusion that Chak Charsadda was separated and was given the name of Hasaar of Charsadda. That Sharif Khan was mortgagee in the estate of Charsadda whose son Sardar became owner through purchase. Mahabuddin had executed rent deed in favour of Sardar. Reliance was also made on an admission of P.W.6 regarding Sardar's ownership of the house and its gift in favour of his wife. The learned Additional District Judge, therefore, set aside the judgment and decree of the trial Court on acceptance of appeal and dismissed the petitioners'/plaintiffs' suit. The petitioners' revision petition before the Hon'ble High Court was dismissed on 26-2-1994; hence, this petition for leave to appeal.

2.It was contended by the learned counsel for the petitioners that it has been brought on record in the statement of Patwari Halqa that petitioners are among the proprietary body of the village while Sardar deceased and his predecessor-in-interest had no such right, hence, the High Court was in error in dismissing the revision petition. We find no force in the contention of the learned counsel as from the certified copies of the Jamabandi pertaining to Shamilat the Khasra number in dispute, which is Abadi Deh is not mentioned as such, rather it has been admitted by the Patwari Halqa in his statement in Court that the house in question situates in Abadi Deh which bears Khata No,528. This Khata is neither owned by the proprietary body of the village nor it is shown as 'Shamilat Deh'. Such being the case the plaintiff failed to prove his ownership of the house in dispute. It is not denied by the learned counsel for the petitioner that it was for the plaintiff to have proved in unambiguous words that the house in dispute was owned by the predecessor-in-interest of the plaintiff/petitioner and his other shareholders and that the house has fallen to his share in partition. The partition document which has been placed on file is ambiguous and not worth consideration specially when the respondent is not party to such deed and the same is not supported by any independent evidence. Petitioners also failed to prove that they or their predecessor-in-interest ever remained in physical or constructive possession of the house in dispute. Such being the case no exception could be taken to the finding of the learned High Court and that of the first appellate Court which is supported by the evidence on record. Leave to appeal is, accordingly, refused.