2015 CLC 1682 PESHAWAR-HIGH-COURT

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TUFAIL VS AURANGZEB 1979 CLC 230, PLD 2009 SC 198, Burden of Proof--TERM , Partition Act 1893--4 , S. 4---Suit for possession on basis of private partition---Private Partition---Burden of proof---Co-owner, status of---eviction of co-owner---Preliminary decree, grant of---Plaintiff filed suit for possession of suit property on basis of private partition between predecessors of parties to suit who were legal heirs of deceased/owner of suit property---Plaintiff averred that he was forcibly dispossessed from suit property---Defendant contested suit mainly on ground that suit property along with other inherited properties were jointly owned by parties as co-owners---Suit was dismissed but appeal against was allowed and preliminary decree of partition was granted in favour of plaintiff despite the fact that it was not prayed for---Validity---Burden of proof to prove private partition lay on plaintiff but he had not placed anything on record to substantiate his claim---Witnesses produced by plaintiff were not witnesses to private partition executed by predecessors of parties---Private partition in question had deprived all other legal heirs of owner and exclusive ownership of plaintiff through private partition appeared to be doubtful---Suit property along with other properties was held to be joint ownership of parties since no official partition had been made so far and co-owner could not seek eviction of other co-owners without partition of joint property---Suit for exclusive possession of one of co-owners was not-maintainable to exclusion of other co-owners---Judgment of Appellate Court granting preliminary decree in favour of plaintiff was in excess of jurisdiction, since partition of suit property had not been prayed for---Revision was allowed accordingly.