MAULVI ANWARUL HAQ, J.---On 21-12-1981 the petitioners filed a suit against the respondents. In the plaint, it was stated that the petitioners and respondents Nos.1 and 2 are descendants of Masta.
The petitioners are the children of Noor Muhammad son of Masta who had three sons including the respondent No.1 and Noor Muhammad father of the petitioners, a daughter i.e. Mst. Ghulam Fatima respondent No.2 and another son Abdul Wahab. Noor Muhammad died on 14-1-1959 while Abdul Wahab had died before Noor Muhammad. He was owner of 49 Kanals and 3 Marlas of land.
Mutation of Inheritance No.124 was attested on A 29-6-1978 wherein a pedigree-table was drawn up duly showing the names of the petitioners. However, they were excluded. They claimed 19 Kanals and 13 Marlas share in the said 49 Kanals and 3 Marlas estate of their uncle Abdul Wahab. On the basis of the said illegal inheritance mutation the respondents Nos.1 and 2 made alienations as detailed in para.2 of the plaint. This also includes a pre-emption decree dated 15-12-1979. All these alienations were challenged and a decree for possession was prayed for. Now the respondent No.1 filed a consenting written statement on 20-1-1982 praying that the suit be decreed. The respondents Nos.3 to 7 stated that they have nothing to do with the suit-land. Ultimately, the suit was contested by respondents Nos.8 to 16. They claimed to be bona fide purchasers. It was also stated that respondents Nos.8 to 10 have acquired a part of suit-land by means of a pre-emption decree. Although ignorance was expressed in reply to the material contents of the plaint but it was maintained that the inheritance mutation was correctly attested. Following issues were framed by the learned trial Court:--
(1) When did Abdul Wahab die and whether he pre-deceased Noor Muhammad? OPP
(2) Who are the legal heirs of Abdul Wahab? OPD
(3) What is the effect of findings on issues Nos. 1 and 2 on the mutations in dispute? OPP
(4) Whether the suit valuation is incorrect? OPD
(5) Is the suit result of collusion between the plaintiffs and the defendants Nos.1 to 7? OPD
(6) Are the defendants Nos.4 to 16 bona fide purchasers for value without notice? OPD
(7) Are the defendants Nos.3 to 7 not necessary parties to the suit? OPD (7-A) Whether the suit is not maintainable in the presence of preemption decree dated 15-12-1979 in favour of the defendants Nos.8 to 10? OPD
(8) Relief.
' Evidence of the parties was recorded. Vide judgment and decree dated 19-12-1987 the learned trial Court found Issue No.1 in favour of the petitioners holding that Abdul Wahab had pre- deceased Noor Muhammad. Under Issue No.2 it was found that the petitioners are the legal heirs of Abdul Wahab. Under Issue No.3, it was held that the petitioners are entitled to inherit 19 Kanals and 13 Marlas out of the estate of Abdul Wahab. Under Issue No.3 it was observed that the petitioners suit stands dismissed against respondent No.2. (This was under Order IX, rule 3, C.P.C.) and as such it is only the respondent No.1, who will contribute his excessive share while adjusting the petitioner's claim. The Revenue Officer was accordingly directed to adjust the petitioner's share only from the land of respondent No.1 in the said Khata. All other mutations in favour of respondents Nos.3 to 16 were to remain in tact. Issues Nos.4 to 7-A were not pressed. The suit was accordingly decreed in the said manner. Feeling aggrieved the petitioners filed a first appeal which was heard by a learned Additional District Judge, Mailsi. He modified the said decree inasmuch as respondent No.2 was also held liable. Some calculations were made in para.17 of the judgment dated 29-3-1995. It was found that Abdul Sattar respondent No.1 got 13 Kanals and 12 Marlas of land in excess while Ghulam Fatima respondent No.2 got 6 Kanals and 11-1/2 Marlas in excess and these are to be accordingly adjusted to make up share of the petitioners i.e. 19 Kanals and 3 Marlas. The alienations were upheld.
2. Learned counsel vehemently contends that when the said vendees did not take any steps to establish bona fide acquisition of land for consideration without notice, the learned Courts below have acted without notice, the learned Courts below have acted without jurisdiction in upholding the transactions inasmuch as these were in excess of the share of the vendees i.e. Respondents Nos.1 and 2 as detailed in the impugned judgment by the learned Additional District Judge.
' Learned counsel for the contesting respondents, on the other hand, has tried to support the impugned judgments and decrees.
3. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. Admittedly, Abdul Wahab was the last male owner of the suit-land measuring 49 Kanals and 3 Marlas. The finding that the petitioners were entitled to inherit 19 Kanlas and 3 Marlas has not been questioned before me or for that matter in the Court of first appeal. This being so, the alienations made by respondents Nos.1 and 2 which were in excess of their respective share in the said land are illegal and void and ineffective upon the rights of the petitioners.
4. Now to begin with Abdul Sattar respondent No.1 sold 21 Kanlas and 14 Marlas of land to respondents Nos.3 to 7 vide Mutation No. 120 attested on 29-11-1978 (Exh.P.4), the area of the entire Khata is stated as 49 Kanals and 3 Marlas. Thereafter vide Mutation No.106 (Exh.D.8/2) based on a registered sale-deed dated 10-8-1979 Abdul Sattar sold another 2 Kanals to the said respondents Nos.3 to 7, two Kanals were directly sold by the respondents Nos.3 to 7 to the respondent No.8 while the remaining was acquired by the respondents Nos.8 to 10 by means of pre-emption decree dated 15-12-1979 (Exh.D.8/9). I do not find any alienations having been made by Mst. Ghulam Fatima according to the material available on this paper book. Now needless to state that the right of pre-emption being a right of substitution, the said vendees substituted the original vendees in the sale made by Abdul Sattar respondent No.1 There is no evidence on record and admittedly the issue pertaining to bona fide purchase was not even pressed in any of the two Courts below. This shows a sale in excess by Abdul Sattar to the extent of 3 Kanals and one Marla.
5. The civil revision is partly allowed inasmuch as the said sales followed by the pre-emption decree in favour of respondents Nos.3 to 16 are declared to be illegal and void to the extent of three Kanals one Marla. It will be for Abdul Sattar respondent No.1 to restitute the said vendees in terms of section 43 of the Transfer of Property Act, 1882. The suit filed by the petitioners is accordingly decreed in the above terms. They are declared to be the owners of 19 Kanals and 13 Marlas of the said estate of Abdul Wahab measuring 49 Kanals and 3 Marlas and the alienations made by Abdul Sattar and further alienations made by respondents Nos.3 to 7 are declared to be ineffective on the said right of the petitioners. Abdul Sattar respondent No.1 shall restitute the excess area from his other land. No orders as to costs.