Mst. Saleem Bibi plaintiff/respondent herein had instituted a suit for possession with regard to 4 marlas of land, share of house, the description of which is narrated in Para 1 of the plaint situated in Khewat No, 53, Khatooni No, 132 Khasra No, 593, Mauza Abbasi Wala, Tehsil & District Gujranwala, claiming to be the owner on the basis of Mutation No, 946 attested on 31.3.1991. The plaintiff asserted in the plaint that the property in dispute, a vacant piece of land was under the use of her maternal grand father since 1952, who has constructed two Katcha rooms over there, who after the marriage of the plaintiff started living with her in this place but due to the heavy rains, this Katcha house was dismantled. The maternal grand father of the plaintiff had not got transferred this property through a sale-deed but the plaintiff through Mutation No, 946 dated 31.3.1991 purchased the suit land for a consideration of Rs, 5,000/- from one Muhammad Ashraf and Muhammad Akram sons of Lal Din. The defendants Muhammad Sharif, Muhammad Latif etc. sons of Abdullah illegally occupied the land in dispute and started constructions of a outer wall which prompted her to file the suit.
2. The suit was contested by the defendants who filed their written statements denying the averments of the plaint. From the factual controversy appearing on the pleadings of the parties, the learned trial Court led to frame the following issues:-- 1.Whether plaintiff is exclusive owner of property in dispute and the defendants have no concern with it? OPP.
1-A. Whether report of local commissioner is liable to be set-aside in view of objections made by defendants? OPP.
2.Whether defendants are co-owners alongwith the plaintiff? OPP.
3.Whether suit of the plaintiff for possession is maintainable without partition? OPP.
4.Whether suit is not properly valued for the purpose of Court fee and jurisdiction, if so what is correct valuation? OPP.
5.Whether defendants are entitled to special costs under Section 35-A CPC, if so to what extent?
OPP.
6.Relief.
3. After recording and appreciating the evidence of the parties pro and contra, the learned trial Court, vide its judgment and decree dated 30.11.1995 dismissed the suit. Feeling aggrieved, the plaintiff preferred an appeal, which came up for hearing before the learned Addl. District Judge, Gujranwala. who vide, the impugned judgment and decree dated 11.3.1998 accepted the appeal and set-aside the judgment and decree of the trial Court and decreed the suit. The petitioners through this civil revision have assailed the said judgment of the lower appellate Court.
4. Learned counsel for the petitioners contends that Mst. Saleem Bibi had purchased four marlas of land from vendor, Muhammad Ashraf and Muhammad Akram through Mutation No, 946 the share of joint khata measuring 10 marlas and a specific portion of the same has not been transferred in favour of the petitioner; that the decree for possession in favour of the respondents could not be passed with regard to specific boundaries of the suit-land. The plaintiff could file a suit for partition of the property for possession of her share.
5. On the other hand, learned counsel for the respondents vehemently opposed the arguments of learned counsel for the petitioner and supported the judgment of learned lower appellate Court contending that the plaintiff was in possession over a specific portion of the joint khata, which was in possession of her maternal grand father who is entitled for possession of the same.
6. I have heard the arguments of the learned counsel for the parties and perused the record.
7. The plaintiff/respondent had purchased four marlas of the house (property in dispute), the share of Muhammad Ashraf, Muhammad Akram sons of Lal Din out of 10 marlas of land. The share of joint property belonging to Muhammad Ashraf & Muhammad Akram sons of Lal Din, Muhammad Sharif, Muhammad Latif, Zulfiqar Ali and Iftikhar Ahmad sons of Abdullah. The property was mutated in favour of Mst. Saleem Bibi by the vendor through a mutation but no specific portion of the house in dispute was transferred and only 2/5 share of the property belonging to the vendors had been transferred in favour of the petitioner. From scrutiny of the evidence and record, it is manifestly clear that the plaintiff .was not in occupation of a specific portion of four marlas out of this joint property. The plaintiff/respondent in para 3 of the plaint admitted that due to rains, the house was dismissed and it was a vacant plot.
7. It is settled preposition of law that persons purchasing from a co-sharer in joint holding do not stand in a better position than that of their vendor and such sale would always be subject to adjustment at the time of partition. In this context reliance can be placed to the case of Bahadur Khan vs. Darvesh Ali Khan (P.L.D. 1994 S.C. 354). It has been held in the case of Muhammad Siddique vs. Sardar Muhammad (N.L.R. 1993 A.C. 555) that purchaser would not become exclusive owners of specific Khasra numbers in un-partitioned jointly owned land. A co-sharer is entitled to retain possession of the joint property. A suit for partition and a suit for physical possession in favour of a co-sharer against another co-sharer cannot be passed. The suit is only maintainable to the extent of symbolic possession. In this context reliance can be placed to the case of Nazar Hussain vs. Abdul Rauf (1994 M.L.D. 461). A co-sharer in a joint property would not be entitled to decree for joint possession as laid down in Jan Begum vs. Nizam Din (P.L.D. 1998 AJ&K 9). In a joint khata a co- sharer could alienate part of his property to stranger provided he was in possession of that land-- Such possession would remain intact until partition had taken place between co-sharers as laid down in the case of. Zardad Khan vs. Safia Begum (1998 C.L.C. 2006). It is also settled preposition of law that where no regular partition has taken place between the contesting parties, co-sharer has a right in each and every Khasra number of the suit land irrespective of the quantity and quality-- Co-sharer who is in exclusive possession of a specific portion of a joint property cannot alienate, transfer or change the same unless a regular partition takes place between the co-sharers.
Reliance can be placed to the case of Noor Rehman vs. Muhammad Yousuf (2000 C.L.C. 1138).
8. In case of Ahmed Miaji and others vs. Eakub Ali Munshi and others (PLD 1961 Dacca 259) it has been held that one co-sharer in exclusive possession of a plot of land cannot be dispossessed by another co-sharer except by suit for partition. Same view was also followed in a case of Kutijan Bibi vs. Zulmat Khan and others (P.L.D. 1968 Dacca 172) by holding that every co-sharer is entitled to enjoy joint property and if he enjoys exclusively, he cannot be evicted there from by another co- sharer except by filing a suit for partition. The plaintiff/respondent, who is altogether out of possession out of the joint property which is in .exclusive possession of the other co-sharer, is not entitled to get a decree for joint possession and it is held that if the petitioner in such a case is allowed joint possession with his co-sharer, then he can pick and choose and enter into possession of any portion of the joint property and out his co-sharer who holds exclusive possession of the whole property. This would be utterly inequitable and would give rise to further litigations. The only remedy of a co-sharer out of possession of the joint property is by way of partition and he can get a decree for joint possession. One co-sharer in a joint immovable property is deemed to be interested in every inch of such property and cannot be allowed to act in a manner, which constitutes an invasion on the right of other co-sharer. Co-sharer in possession of a portion of joint property cannot change nature of property in his possession unless partition takes place by metes and bounds. Reference can be made to the case of Ali Gohar Khan vs, Sher Ayaz and others (1989 S.C.M.R. 130). .
9. The sale by the vendors Muhammad Ashraf and another in favour of plainftiff/respondent of four marlas of land in a joint Khewat is subject to partition. The plaintiff/respondent has prayed for decree of specific portion of the land in a joint holding which cannot be passed and the suit for possession filed by the plaintiff/respondent is not maintainable. In this context reference can be made to the case of Fazar Ali Khan and 3 others vs. Ghulam Ali Khan and 9 others (1995 C.L.C. 1850).
10.The learned Lower Appellate Court while passing the impugned judgment and decree has failed to advert to the above discussed legal aspect of the cases and passed the decree for possession in favour of the plaintiff/respondent contrary to the dictums as laid down in the said cases by the superior Courts and the judgment passed by the lower appellate Court is not sustainable in law.
11.For the foregoing reasons, this revision petition is accepted. Resultantly, the impugned judgment and decree dated 11.3.1998 passed by the lower appellate Court is set-aside and that of the trial Court is maintainable. The plaintiff/respondent may if. so advised claim the possession through suit for partition.