' Abdul Qadir Khan and Noor Muhammad Khan, residents of Thana, Malakand Agency, brought a suit against Ghulam Hussain, resident of Bakhta Thana, Malakand Agency, to the effect that the plaintiffs were owners of a piece of land in village Bakhta of Thana area as per boundaries mentioned in the plaint, and the defendant had no right to either construct wall on the same or to get the possession of the same, and any document or receipt regarding the suit property was void and ineffective against the rights of the plaintiffs. The suit was contested, issues were framed and, ultimately the Suit (No,174/1) instituted on 22-10-1997 decided on 2-12-1998 was dismissed by the learned Aala Alaaqa Qazi, Malakand. Civil Appeal No,83/13 instituted on 19-12-1998 was also decided on 9-2-1999 and was dismissed by the Zilla Qazi Malakand. Hence, the present revision petition.
2. The learned counsel for the parties referred to the record before me during their arguments.
3. The learned counsel for the petitioners referred to the definition of sale as provided in the Transfer of Property Act, and also to the provisions of Qanun-e-Shahadat, 1984, besides the Specific Relief Act. He contended that the petitioners had been able to prove that the suit property belonged to them while the defendant had not been able to prove that the suit property was sold to him by unregistered deed. He submitted that the said deed was not proved. The learned counsel for the respondent argued that the suit was bad for non-joinder of necessary parties, the petitioners were estopped by their own conduct, and the suit was time-barred.
4. The evidence of the plaintiffs, however, clarified the actual position of the case. Abdul Qadir Khan is shown to be plaintiff No,1, but he never appeared as a witness. Noor Muhammad Khan appeared as P.W.1 and stated that the suit property was jointly owned by the plaintiffs along with other relatives including Abdul Wakeel Khan, Saleh Khan, Abdul Khaliq Khan, Ghulam Hussain .And others.
Abdul Khaliq Khan P.W.2, who is the cousin of plaintiff No,2 and is the brother of plaintiff No,1, also stated that the suit property was their ancestral property and was jointly owned by them. Nisar Khan P.W.3, Temar P.W.4 also supported the same version by saying that the suit property was the joint property of "Jumla Beradari" of the plaintiffs including Abdul Majeed Khan, Abdur Rahim Khan, Kotey Khan. Abdul Hakeem Khan and others. These statements clearly show that the suit property was originally in the ownership of the plaintiffs and their other relatives. Except Abdul Qadir Khan and Noor Muhammad Khan, no other relative of the plaintiffs has been made a party to the proceedings of this case. The case can, however, be decided to the extent of the rights and liabilities of the present parties, therefore, without prejudice to the rights and liabilities of the other necessary parties, this case can be decided to the extent of the rights and liabilities of the above mentioned parties.
5. Noor Muhammad Khan plaintiff No,1 stated that he was in Bengal in 1972 when a receipt was scribed in the said year in favour of Ghulam Hussain respondent by some of his relatives. Noor Muhammad Khan P.W.1 and Abdul Khaliq Khan P.W.2 could not he able to clearly say that Abdul Wakeel, Saleh Khan and some other relatives of the plaintiffs had not signed the document in favour of Ghulam Hussain while Nisar Khan P.W.3 did not know whether the property in question was sold or not to Major Ghulam Hussain. The admission mentioned above proves that the suit property was sold by some of the relatives of the plaintiffs to Ghulam Hussain in the year 1972 when Noor Muhammad Khan was out of the area.
6. Abdul Khaliq Khan, P.W.2, clearly mentioned that the suit property originally belonged to five brothers. Abdul Qadir Khan was the on of Abdul Hakim Khan while Noor Muhammad Khan was the son of Abdur Rahim Khan, brother of Abdul Hakim Khan. It was further clarified by P.W.2 that his father was the owner of 1/5th share in the suit property and so was the case (of the father) of Noor Muhammad Khan, and that plaintiff No,2 was owner of 1/6th share out of the fifth share. It means that Noor Muhammad Khan plaintiff was owner in the suit property to the extent of 1/30th share.
7. It has been stated by Abdul Khaliq Khan P.W.2 that his brother, which meant Abdul Qadir Khan, had not instituted' the suit. Abdul Qadir Khan has never appeared in Court to say that he was one of the plaintiffs, although his name appears as plaintiff/appellant/petitioner at all the stages of this case. Had he taken active part in the proceedings, his share in the suit property could also be ascertained, but in the light of the statement of P.W.2, which is admission on the part of the plaintiffs, he had not instituted the suit. There is, therefore, no need to ascertain whether he had or had not sold his share in the suit property to Ghulam Hussain and whether he was or was not entitled to his share.
8. P.W.2 also stated that no one out of five brothers of plaintiff No,2, like his own brother, Abdul Qadir Khan, and three other co-sharers have not instituted the suit in respect of the suit property. It is, therefore, in between the other relatives of Noor Muhammad Khan and Ghulam Hussain to settle their score with each other in the light of their respective rights and liabilities.
9. The learned original Court and the learned Appellate Court did not consider this aspect of the case and did not ascertain the share of plaintiff No,2 in the light of the fact that the defendant had not been able to bring any evidence on record that he had ever purchased the share of Noor Muhammad Khan plaintiff either directly or indirectly. There is no evidence of the defendant to the effect that the alleged sale consideration for the alleged share in the suit property was ever paid to Noor Muhammad Khan either by the defendant himself, or through the witnesses of the alleged document or through the relatives of plaintiff No,2 or any other person. It has never been the case of the defendant that either the suit property was his ancestral property or he was one of the original co-sharers in the suit property or he had become the owner of the share of Noor Muhammad Khan in the property in question by any other legal way.
10. In these circumstances, I partially accept the present revision petition and partially set aside the judgments and decrees of the learned original Court and the learned Appellate Court, mentioned above, to the extent that Noor Muhammad Khan plaintiff is the owner in possession of the suit property to the extent of its 1/30th share, and he is entitled to the declaration and permanent injunction as prayed for by him to that extent. The judgments and decrees of the learned Courts to the extent of the remaining 29 shares out of 30 shares are maintained in favour of the present respondent, subject to the rights, if any, of the necessary parties who have not been joined as plaintiffs/defendants. In the light of the circumstances of this case, parties are left to bear their own costs throughout.