MUHAMMAD MUZAMMAL KHAN, J.--- Petitioner and his brother earlier had purchased one Kanal, 16 Marlas of land out of a joint holding through registered sale-deed dated 19-8-1990, he then claimed another purchase of land measuring 6 Kanals, 11 Marlas from the same "Khata" from the other co-sharers namely respondents Nos.6 to 9. The petitioner claimed that possession of the subsequent orally sold land was given to him but on interference therein, he filed a suit for declaration against respondents Nos.6 to 9 before the learned Civil Judge Bhakkar. The said respondents conceded the claim of the petitioner and his suit was decreed vide judgment/decree, dated 3-9-1997.
2. Respondents Nos. 1 to 5 who were purchasers of land measuring 5 Kanals one Marla from Qaiser Iqbal co-owner of the petitioner, filed an application under section 12(2), C.P.C. Before the trial Court on 18-10-1997 with the claim that decree subject of attack was obtained through fraud and misrepresentation regarding specific Khasra numbers/specified portion of joint Khata which under law could not have been passed, thus, the same being without jurisdiction may be adjudged. The application filed by respondents Nos.1 to 5 was contested by the petitioner but after recording of evidence in pro contra, the same was accepted by the trial Court vide order, dated 11-1-2005 with the result that petitioner's suit became alive.
3. Petitioner being aggrieved of the order dated 11-1-2005 filed a revision petition before the learned Additional District Judge, Bhakkar but remained unsuccessful as the same was dismissed on 14-2- 2006. He has now filed a constitutional petition praying that both the concurrent orders of respondents Nos.12 and 13 may be declared illegal, void and of no legal consequence.
4. I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, the petitioner in his plaint had claimed sale of land measuring 6 Kanals and 11 Marlas with specific Khasra numbers by specifying the boundaries of the land, out of joint Khata from respondents Nos.6 to 9 who filed concessional written statement. Parties to the suit also filed compromise deed (Exh.P.C./1) on the basis of which the suit of the petitioner was decreed on 3-9-1997 and it also gave the same specification as given in the plaint. Sale of specific. Khasra numbers with specified boundaries out of joint holding could not have been affected but in spite of the same was allowed to be done through a decree under attack. The learned counsel for the petitioner could not deny with Khata No.820 wherein the suit-land is situated has not been partitioned, so far and that some parts of the joint holding are valuable being abutting the mettled road whereas other parts, are of less value being located at the back. Law regarding joint holding is firmly settled by this time to the effect that every co-sharer of it will be considered owner in every inch of the joint property according to the ratio of his share in the Khata. While forming this view, I have to my credit judgments in the cases of Azam Khan v. Azad Khan and 6 others PLD 1986 Lah.
275; 1998 CLC 2006; Ali Gohar Khan v. Sher Ayyaz and others 1989 SCM R 130 and Atta Muhammad v.
Sahibzada Manzoor Ahmad and others
5. Scan of record and judgments passed by respondents Nos.12 and 13 revealed that all the three prerequisites for adjudging/setting aside a decree under section 12(2), C.P.C. Were fulfilled. Besides the elements of fraud and misrepresentation on part of the petitioner and respondents Nos.6 to 9 qua the Court, the decree under challenge could not have been passed, as noted above thus, the same was also without jurisdiction. Above all, no prejudice to the petitioner has been caused through the impugned order as he will get the decree again to the extent of share of respondents Nos.6 to 9, in case of his success to prove his entitlement, thereto.
6. For the reasons noted above, none of the respondents Nos.12 and 13 committed any illegality amenable to constitutional jurisdiction of this Court. Even otherwise, a lawful decision within the ambit of conferred jurisdiction, cannot be substituted on this petition which being devoid of any merit is dismissed in limine.