' MUHAMMAD SAYEED AKHTAR, J.---The facts giving rise to this petition are that in the earlier round of litigation the plaintiffs/respondents filed a suit on 13-9-1976 against defendants/petitioners for possession of land plot measuring 5 Marlas situate in Khata No,81 Khatooni No,234, Khasra No,1528 situate in Mauza Bhedian Kalan Tehsil and District Kasur. It was averred in the plaint that the defendants were licensees on the said plot but now were refusing to vacate the same. The plot was required for personal need of the plaintiff. During the pendency of the suit Muhammad Mukhtar, one of the plaintiffs (the brother of other plaintiffs) filed an application Exh.P.8 stating that he had gifted his share of land to the defendant as such his name may be deleted from array of the plaintiffs. The plaintiffs made an application for withdrawal of the suit with permission to refile the same. The application was allowed vide order dated 7-7-1981, Exh . P.
9.
' The plaintiffs filed a second suit on 10-7-1990 for possession through partition of 5 Marlas in Khasra No,1528. It was averred in the plaint that vide agreement dated 18-9-1968 the plaintiff No,1 allowed the defendants to use his 3 Marlas land. Muhammad Ashiq (the predecessorin-interest of defendants) accepted the same on fulfilment of terms and conditions of the agreement.
Subsequently Muhammad Ashiq (the predecessor-in-interest of the defendants) included another 2 Marlas into his possession. The plaintiffs earlier filed a suit on 13-9-1976 for possession after removing the structure. Muhammad Mukhtar one of the plaintiffs colluded with the defendants and gifted his share to the defendants. The defendants became co-sharers in the khata to extent of share of Muhammad Mukhtar. The plaintiffs withdrew the suit with permission to refile vide order dated 7-7-1981. The defendants were licensees, they are not fulfilling the terms and conditions of the agreement dated 18-9-1968 and Mst. Hanifan Bibi, defendant was misbehaving.
' The suit was resisted denying the allegations. The adverse possession was also pleaded.
' Out of the pleadings of the parties following issues were framed:--
(1) Whether the suit is time-barred? OPD
(2) Whether the plaintiffs lack cause of action to file the suit? OPD
(3) Whether the Suit is not maintainable in its present form? OPD
(4) Whether the suit has not properly valued for the purposes of court-fee arid jurisdiction? If so, what is its correct valuation? OPD
(5) Whether the map annexed to the plaint is not correct? OPD
(6) Whether the defendants have become the owners of the suit property due to adverse possession? OPD
(7) Whether the suit is false and fictitious therefore the defendants are entitled to compensatory costs? OPD
(8) Whether the plaintiffs are estopped by their word and conduct to file this suit?
(9) Whether the plaintiffs are entitled to separate portion of the suit property? OPP (9A) Whether the plaintiffs handed over the possession of the suit-land to predecessor-in-interest of the defendants as licensee? OPP
(10) Whether the suit property is devisible? OPP
(11) Relief.
' The learned trial Court after recording the evidence of the parties dismissed the suit of the plaintiffs vide judgment dated 5-1-1993. An appeal was preferred before the learned District Judge, Kasur which came up for hearing before the learned Additional District Judge, Kasur who vide order dated 12-6-1997 reversed the judgment of the learned trial Court and passed a preliminary decree for partition of the suit-land in favour of both the parties and declared the respondents entitled to 11/16 share and the petitioners as 5/16 share respectively in the suit-land.
2. Learned counsel for the petitioner contended that Muhammad Mukhtar one of the plaintiffs had gifted his share to the petitioners. They became co-sharers with the plaintiffs/respondents to the extent of 6 Marlas as. Such the petitioners could not be declared co-sharers to the extent of 5/16 share only.
' Conversely the learned counsel for the respondents defended the impugned judgment.
3. I have gone through the judgments of the Courts below, perused the record and considered the arguments of the learned counsel for the parties. The P. Ws. Have supported the case of the plaintiffs, whereas the D. Ws. Have supported the case of the defendants stating that the defendants/petitioners are not licensees. The terms of the so-called agreement dated 18-9-1968, Exh.P.1 by which the land in question was allegedly given to the petitioners for use reflect the feudal mentality. The stipulations as given in the Exh.P1 are as under:--
(i) Muhammad Ashiq (the predecessor-in-interest of the petitioners) shall pay 8 Annas on every 'Rabi crop and 8 Annas on every Kharif crop.
(ii) That Muhammad Ashiq shall also pay one rupee during his lifetime.
(iii) And that on the marriage of every boy and girl he will Pay Rs,5 and provide food/dinner to the owner.
(iv) He shall provide the manure to the owner.
(v) And shall also give 1/4 share of the trees to the landlord.
' In my view the aforesaid agreement is irrational and unconscionable, against the public policy and the human rights as such are unenforceable. It deserves judicial censure. The contract is illegal both in formation and performance. The violation of the same has been alleged on the ground of misbehaviour of the defendant No,1 only.
' It is expressly admitted in paras. 6 and 7 of the plaint that Muhammad Mukhtar (the brother of the plaintiffs/respondents) had gifted his share to Muhammad Ashiq (predecessor-in-interest of defendants) who became a co-sharer with the plaintiffs. The copy of the register "Haq Daran-e- Zamin" Exh.D.1 shows that Khasra No,1528 comprises of 1 Kanal. The plaintiff Muhammad Sharif and Muhammad Ashiq are owner of 5/16 share each (measuring 6 Marlas each). The same document reveals that Muhammad Mukhtar (donor) was also owner of 5/16 share i.e, 6 Marlas. The application Exh.P.8 manifests that he gifted his hare in the land to the defendants/petitioners and this factum is also admitted in the plaint by the plaintiffs/respondents. After the alienation of plot in favour of the defendants the agreement dated 18-9-1968 Exh.P.1 (even if enforceable) came to an end and the defendants became owners to the extent of share of Muhammad Mukhtar (donor).
The partition of only 5 Marlas of land on which the petitioners have constructed their houses and of which they have become owners cannot be allowed.
4. For what has been stated above this revision petition is allowed, the judgment of the learned Additional District Judge, dated 12-6-1997 is set aside and that of the learned trial Court dated 5-1- 1993 restored.