ISAM GUL Through His Son And General Attorney vs MIR KHAN And 17 Other
This matter concerns a petition for leave to appeal against a judgment of the Peshawar High Court in a civil revision proceeding. The petitioner originally sought a declaration of ownership regarding specific land, alleging it had fallen to his share through a prior private partition and that the existing revenue record was incorrect. The trial court and the district court dismissed the suit, finding against the petitioner. However, the High Court, exercising revisional jurisdiction, partially accepted the petitioner's claim. It held that while the petitioner was not an owner of a specific portion (Khasra No. 3657), he was a co-sharer in the remaining suit land. The High Court reasoned that the petitioner's status as a 'Hissadar' in possession through a family arrangement entitled him to a decree to the extent of his share, noting that such arrangements are subject to regular partition. The Supreme Court found no infirmity in the High Court's appraisal of the revenue record and its legal conclusion. Consequently, the Supreme Court refused leave to appeal, affirming the High Court's decision to partially decree the suit.
- Can a co-sharer in possession of land through a family arrangement be granted a decree to the extent of their share despite the absence of a formal partition?
- Does a prior decree for produce regarding suit land contradict a plea of private partition?
- Is a High Court's finding based on the appraisal of revenue records in a civil revision subject to interference by the Supreme Court if no infirmity is found?
ORDER
FAZAL ILAHI KHAN, J.---Leave to appeal is prayed for by the petitioner against the judgment dated 5-7-1995 of the Peshawar High Court, Peshawar, passed in Civil Revision No. 463 of 1995.
2. In the suit brought in the Court of Senior Civil Judge, Peshawar declaration was sought that the land detailed in the plaint measuring 22 Kanals, 5 Marla had fallen to his share in the prior partition among the parties and that the revenue record contrary to such partition is incorrect and not binding on the petitioner. The suit was contested by Mir Khan and others by filing their joint written statement. After recording evidence of the parties the learned trial Judge dismissed the suit. The petitioner's appeal against the judgment and decree was also dismissed by the learned District Judge. The learned High Court, however, in exercise of revisional jurisdiction held that both the parties are co-sharer in the suit land excepting Khasra No.3657 measuring 3 Kanals, 15 Marlas wherein petitioner is not recorded as an owner. It was observed that decree for produce in respect of the suit land had already been passed in the suit between the parties which contradicts petitioner/plaintiff's plea of private partition. The learned High Court, therefore, set aside the judgment and decree of both the Courts below on the ground that the petitioner being an owner in the suit land his suit should not have been dismissed in respect of the suit land excepting Khasra No.3657 (3 Kanals, 15 Marlas) and the suit should have been decreed to the extent of his share in the suit land of which he was in possession as 'Hissadar' through family arrangement which is always subject to regular partition. There is no infirmity in the conclusion reached by the learned High Court which is based on proper appraisal of the Revenue Record placed on file. Leave to appeal is refused and petition is dismissed.
Cited by 1 case
- Raisham Khan and others vs Mir Azad Khan and others 2019 YLR 2772, 2019 PHC 156