Banaras Khan vs Kala Khan

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

C.R No: 184 of 2007

JUDGMENT

Date of hearing.........04.12.2014.....................................

Appellant(s)/Petitioner (s)...Banaras Khan etc (By Qazi Muhammad Shehriyar Adv)..............................................

Respondent (s)...Kala Khan and others (ByImran Aslam Adv)..................................................................

QALANDAR ALI KHAN:-J: Through

this revision petition, the petitioners, Banaras and others, have challenged the judgment and decree of learned Additional District Judge-II, Haripur, dated

22.03.2007, whereby appeal of the

petitioners against the judgment and

decree of learned Civil Judge-V, Haripur, dated 24.06.2003 was dismissed.

2.The background of the case is that

respondents/plaintiffs, Kala Khan and

another had brought a suit for possession through partition in respect of a house built on Khasra Nos.455 and 456

measuring two kanals situated in Mouza Parahala, Tehsil and District Haripur. The suit was resisted through written statement by the petitioners/defendants, and pleadings of the parties were reduced to as many as ten issues, where-after evidence of the parties was recorded, and a preliminary decree for partition was granted in favour of the

plaintiffs/respondents subject to payment of improvement for the house built on the property to the defendants/petitioners, by the learned Civil Judge, Haripur, vide judgment and decree dated 24.04.2003.

Aggrieved of the said judgment and decree of the learned trial Court, the petitioners/defendants preferred appeal, which was dismissed vide the impugned judgment.

3.Arguments of the learned counsel for the parties heard, and record perused.

4.It is an admitted fact, borne out of record, that property in question is joint

amongst the co-sharers, including the parties, and statement of Molvi Muhammad Ismail (PW2), local commission appointed by the trial Court, would reveal that construction over the suit property has been raised by co- owners.

5.As such, there is no dispute with regard to the fact that the property is joint and still un-partitioned. The learned counsel for petitioners vehemently argued that the learned trial Court/Civil Judge, Haripur, concluded in his discussion on issue No.8 pertaining to possession of the petitioners/defendants over the house constructed on the suit property that the house has been constructed by the defendants and that they were in possession of the suit house, but failed to determine the amount of

improvement, therefore, an application

for recording additional evidence for ascertainment of amount of

improvement has also moved by the petitioners/defendants before the learned Appellate Court/Additional District Judge-II, Haripur, but without rendering decision on application for additional evidence, first, the learned appellate Court dismissed the appeal.

6.Apart from fact that no issue with regard to improvement and value thereof was specifically framed, the learned appellate Court thoroughly discussed contention of the learned counsel for the petitioners/appellants, and repelled the arguments on the ground that only a preliminary decree for partition was granted and that the issue of improvement and costs thereof was bound to come up for consideration and determination during the proceedings for final decree. The

learned counsel observed “that recording of additional evidence at the stage of preliminary decree would serve no other purpose but to increase the agonies of the parties”. One has to subscribe to the opinion of the learned appellate Court, because the decree is, indeed, preliminary, and mode of partition and other allied issues including improvements and costs of

improvement are yet to be determined during proceedings for final decree.

7.As such, there is nothing in the concurrent findings of the trial Court and appellate Court to warrant interference by this Court in its revisional jurisdiction. The revision petition is, therefore, dismissed.

Announced:

JUDGE