' JAWWAD S. KHAWAJA, J.---The respondents have already been proceeded against ex parte vide order dated 30-5-2005.
2. The petitioners/defendants impugned the appellate judgment and decree dated 10-3-1986, whereby the decree of the learned trial Court dated 15-11-1984 has been set aside and as a result, the declaratory suit filed by respondents Nos.1 to 15 seeking permanent injunction by way of consequential relief, has been decreed.
3. Although the record of this case is voluminous, the facts necessary for its disposal are relatively straightforward. In order to appreciate the controversy between the parties, it is necessary to set out, briefly, the factual background leading upto the present litigation. The land in dispute was owned by one Bathu. Upon his death, Bathu's estate devolved on his three sons, namely, Nawab Din, Gulab Din and Mehtab Din. Nawab Din died and was survived by his only legal heir, namely, Noor Hussain. Out of the land inherited by him, Noor Hussain sold the suit-land to the petitioners in this case, and to respondent No,17,namely, Khalid Abdul Rahman. This was done by means of five conveyances which are Exh. P-2 to Exh. P-7 on the record.
4. The respondents Nos.1 to 15/plaintiffs filed their declaratory suit claiming therein that Noor Hussain had sold land in excess of his entitlement in Khata No,165. According to the contents of the plaint, all three sons of Bathu, named above, were entitled to equal 1/3rd share in the aforesaid Khata which measured 19 Kanals, 16 Marlas, in all. As such, it was contended that Noor Hussain as the sole inheritor from Nawab Din, was entitled to 1/3rd of the Khata equivalent to 6 Kanals, 12 Marlas. Furthermore, it was averred that Noor Hussain already having sold 6 Kanals, 7 Marlas out of his entitlement in the said Khata. Retained title to land equivalent to 5 Marlas only in the joint Khata.
However, the impugned conveyances (Exh.P-2 to Exh. P-7) were in respect of 1 Karial, 19 Marlas of land and, as such, it was contended that Noor Hussain sold 1 Kanal, 14 Marlas beyond his entitlement from Khata No,165.
5. The plea set up by the petitioners and respondent No,17 in defence was that Bathu deceased was owner of 123 Kanals, 9 Marlas comprised in four khatas i.e, Khata No,165, Khata No,3, Khata No,5 and Khata No,110. The revenue record relating to these Khatas has been duly exhibited as Exh. P-1, Exh. D-2, Exh.D-3 and Exh.D-4. On this basis, it was pleaded that Noor Hussain had made the disputed sales within his entitlement in the aforesaid khatas as a whole.
6. The learned trial Court dismissed the suit of the respondents/plaintiffs. The learned appellate Court, however, as noted above, has decreed the same. Hence, this revision petition.
7. The case of the petitioners argued before me, is that the learned appellate Court has proceeded on the erroneous premise that the land, which is subject-matter of the present litigation, was comprised in one Khata and it was such Khata alone which determined the entitlement of the vendor Noor Hussain. This premise is misconceived. The Revenue Record and the division of land into Khatas within a revenue estate is only meant for certain procedural and revenue purposes. If a landowner owns land in different Khatas and the said Khatas are also contiguous, the mere fact that the total land is comprised in different Khatas is not of material effect considering that possession of the suit properties is with the petitioners and respondent No,17 as vendees.
8. In the present case, it is evident from Exh.P-1, Exh.D-2,Exh.D-3 and Exh.D-4 that the land in the four Khatas, mentioned above, was in Nal Chah Imamdinwala showing that the total land owned by Bathu deceased was in a compact block. In these circumstances, the entitlement of Noor Hussain had to be determined with reference to the four Khatas and not with reference to one Khata alone.
9. There is some discussion in the judgments of the Courts below in respect of some private partition which had been effected sixty years prior to the filing of the suit between three sons of Bathu deceased. There is also conflicting evidence as to such partition. The case of the petitioners being that the private partition had taken place within the family and had been adhered to by the three brothers. The case of the respondents/plaintiffs, however, was that no such partition had taken place and none had been implemented in the Revenue Record. The learned appellate Court has concluded that no partition had, in fact, been effected or implemented in the Revenue Record.
10. In my opinion, this question is not of material significance because of the circumstances mentioned above, which show that the three brothers inherited land measuring 123 Kanals, 9 Marlas from Bathu deceased. The respondents/plaintiffs have picked up one Khata alone and have confined their assertions on the basis of the said one Khata which, in all, measured 19 Kanals, 16 Marlas. Proceeding on the premise discussed above viz. That the Khatas are only meant for some Revenue purposes and do not affect the right of the parties in the total land A comprised in the four Khatas, which were part of the estate inherited by the three brothers, it follows that the disputed sales made by Noor Hussain were not in excess of his entitlement.
11. I now consider the appellate judgment which also proceeds on the basis of the land comprised in one Khata alone which finds mention in the jamabandi (Exh.P-1). The learned appellate Court has not taken note of the other Khatas, mentioned above, and the land owned by the three sons of Bathu in the same. Khata No,165, in the circumstances of the present case, cannot be seen in isolation from Khatas Nos.3, 5 and 110. The situation in the present case is no different from the case where co-sharers in one Khata privately partitioned the said khata by taking separate Khasra numbers comprised in the Khata, or sell specific khasra numbers. It is the entire khata in such circumstances which then needs to be examined. Likewise, in the present case, it is the entire property which originally was owned by Bathu deceased in the four Khatas which has to be taken into account.
12. In addition to the above, learned counsel for the petitioners pointed out that the respondents/plaintiffs could only have filed a suit for partition of the Khatas in question and it is in partition proceedings that the entire matter could have been sorted out. This is a valid submission, particularly in view of the fact that not only Noor Hussain, but even Gulab Din (predecessor of the respondents/plaintiffs) had also alienated property out of his inherited share. One instance of such alienation is Mutation No,547 (Exh.D-5), whereby Gulab Din had sold 3 Kanals of land out of one khata. As a result, the petitioners and other outsider vendees became co-owners in the khata and the rights of all co-owners could only have been decided through a partition of the khatas in question.
13. In view of the foregoing discussion, I find that the learned appellate Court has not correctly applied the law while exercising its jurisdiction. The appellate decree, as such, is not sustainable.
The same is set aside. As a result, the decree of the learned trial Court dated 15-11-1984 stands restored. The decree of the learned trial Court, however, shall have effect inter se the parties to this litigation only until such time the petitioners and respondent No,17 obtain implementation of the decree of the learned trial Court in the Revenue Record relating to the four khatas mentioned above. The rights of any future bona fide purchasers in any of the above Khatas other than Khata No,165 shall not be affected by the decree passed in favour of the petitioners and respondent No,7.