' On 23-5-2001, a suit for partition of property described in the plaint was filed by the petitioners, (the successors of Abdul Majeed Bhatti deceased) that they had 2/9 share therein. It was contested by the respondent, who pleaded that he had purchased the share of Abdul Majeed Bhatti deceased and from other shareholders and that he was exclusive owner thereof. After framing of the issues arising out of the pleadings of the parties, evidence produced respectively by the parties was recorded by the trial Court and the suit was 'dismissed vide judgment dated 6-9- 2002, whereagainst appeal preferred by the petitioners was dismissed by the learned Additional District Judge, Gujrat on 31-10-2002. This is revision petition thereagainst.
2. The learned counsel for the parties have been heard and record has been perused with their assistance.
3. Admittedly, the suit property was in the name of Muhammad Husain Bhatti, the predecessor-in- interest of the parties, who died in the year 1985, he Alas survived by three sons and three daughters including Abdul Majeed Bhatti, the predecessor-ininterest of the petitioners who died in 1999. The suit was filed by the petitioners that they had 2/9 share in the suit property which was being denied by the respondent. In the written statement filed by the respondent-defendant, he came out with the plea that deceased Abdul Majeed Bhatti had received golden ornaments weighing 10 bolas in lieu of his share in the house. In view of such controversial stance of the parties, under mentioned issues were framed by the Court:--
(i) Whether the disputed property is joint between the parties to the suit? OPP
(ii) If the above issue is proved in the affirmative then what are the respective shares of the parties to the suit in the disputed property? OPP
(iii) Whether the plaintiffs are entitled to the preliminary decree for possession through partition?
OPP
(iv) Whether the plaintiffs have no cause of action and locus standi to file the suit? OPD
(v) Whether the plaintiffs have come to the Court with unclean hands? OPD
(vi) Whether the defendant is owner in possession of the suit house? OPD
(vii) Relief.
' The evidence that was produced by the petitioner was her own statement as P.W.I, who is widow of Abdul Majeed. She denied any such sale of share by Abdul Majeed in favour of respondent- defendant. It was emphatically denied by her that jewellry worth of Rs.50,000 had been- given to Abdul Majeed deceased for his share in the house. Qasim Tanvir P.W.2 was also produced by her.
The respondent-defendant produced Abdul Rashid his brother was D.W.1 who stated that the respondent/defendant had given golden ornaments- weighing 10 Tolas worth of Rs.50,000 to Abdul Majeed deceased. He also stated that rest of the share-holders in the property had sold their share to the respondent-defendant. Mistri Mahmood D.W.2 and Inayat Hussain D.W.3 were produced by the respondent to prove his assertion that he had been maintaining and carrying out repairs in the house. AbdulMajeed respondent-plaintiff appeared himself as D.W.4 and stated that in the year 1988, the petitioner No.1 alongwith her late husband came to him at Faisalabad when Abdul Majeed deceased demanded .a sum of Rs.50,000 to discharge his debts and was given 10 Tolas golden ornaments in lieu of his share in the property. Admittedly there was no written instrument regarding any such sale of his share by the deceased Abdul Majeed. There is no dispute that the property and share of the deceased Abdul Majeed therein was worth more than hundred rupees. The sale or transfer of title could only take place in accordance with law in view of sections 5 and 54 of the Transfer of Property Act, 1882 read with sections 17 and 49 of the Registration Act, 1908. Otherwise the title could not pass on nor the ownership could be transferred unless the legal requirements had been observed and fulfilled. In order to prove that Abdul Rashid Bhatti, Mst. Razia Begum, Mst.
Kulsoom Akhtar, and Mst. Shameem Akhtar, son and daughters of late Muhammad Hussain Bhatti, had sold their 5/9 share in favour of the respondent defendant, sale-deed dated 1-3-2001. Exh.P.1 was produced, the perusal of the said document shows that. Abdul Majeed predecessor-in- interest of the petitioners had been shown as one of the successors of Muhammad Hussain Bhatti and a co-owner in the suit property. However, while dismissing the suit, the Courts below have only relied upon the oral testimony of the witnesses produced by the respondent/ defendant which approach was, inconsistent with the facts established and the legal position on the subject.
Whatever may be the reason if respondent/defendant had to acquire share of Abdul Majid Bhatti in the house, such a transfer and disposition could take place only through a registered instrument, as was the mode adopted for the sale of shares by Abdul Rashid and sisters of the respondent/defendant and a formal sale-deed was executed and registered. The mere fact that it was a transfer inter se the brothers, therefore, no writing was thought or required woul not alter the legal position obtaining in the matter. Thus, the assertion and claim of the respondent that Abdul Majeed deceased Lad transferred his share to him could not Lave legally divested the predecessor-in-interest of the petitioners of his right, interest or title in the suit property. ,The respondent/defendant thus had - failed to prove his exclusive title to the suit property and the approach adopted by the two Courts below in recording findings qua Issues Nos.1, 3, 4 and 6 was not sustainable in law. The findings are reversed accordingly and it is held that the petitioners being cc-owners in the property are entitled to seek possession of their share through partition., Since the Courts below have not recorded 0 any finding qua Issue No.2, as to the respective, shares of the parties in the suit) property, the matter is remanded to the trial Court for determination of the shares of the parties in the suit property and to pass a preliminary decree and proceed with the matter in accordance with law.
' In view of the above by setting aside the judgments of the Courts below, the revision petition is accepted in the terms indicated above. The record of the trial Court be sent promptly where the parties will enter appearance on 14-1-2004. No order as to costs.