' SYED JAMSHED ALI, J.---This judgment will dispose of Civil Revision No.755 of 1996 and 756 of 1996 as the questions of law and fact involved in these cases are common.
2. The dispute in this case relates to land measuring 6 Kanals comprising Killa numbers 15/1 and 16/1 of Square No.2 of village Lillyani Tehsil Bhalwal. The suit in this case was filed by Muhammad Riaz and Arshad Mahmood the two petitioners for possession against Mumtaz Ali and Muhammad Hayat both deceased respondents 1 and 2 now represented by their legal heirs. Their case was that they were the owners, have been in possession of the land in dispute but 5/6 months prior to the institution of the suit (filed on 22-2-1987) the respondents they had illegally occupied the suit-land and on an area measuring 5/6 Marlas construction had been raised. It may be noted that vide registered sale-deed dated 17-7-1982 one Ghulam Ali had sold the land in dispute in favour of Muhammad Riaz and Manzoor Ahmed in the ratio of 1/3rd and 2/3rd respectively and vide consent decree dated 13-4-1985 (Exh.P.5) Manzoor Ahmad the co-vendee with Muhammad Riaz had transferred his 2/3rd share in favour of Arshad Mahmood. This is the reason that he was a co- plaintiff in the suit.
3. Mumtaz Ali deceased had earlier filed a suit on 8-2-1987 against Khushi Muhammad and five others including the two petitioners claiming exclusive title to the land in dispute. His case was that Khushi Muhammad and his son Muhammad Riaz had orally sold this land in his favour vide receipt dated 16-5-1977 for a consideration of Rs.17,000 out of which an amount of Rs.10,000 was received by them while the balance sale consideration had also been paid to them. It was averred that the plaintiff has been in possession of the land in dispute, had constructed two Pakka houses and a Pakka Dhara and out of the said land area measuring 2 Kanals was under his cultivation. The sale- deed dated 17-7-1982 in favour of Muhammad Riaz and Manzoor Ahmad was also assailed with a prayer for permanent injunction. Both the suits were consolidated, tried and vide judgment dated 8-10-1988 the suit filed by Mumtaz Ali was dismissed while the suit filed by the petitioners was decreed. However, on the appeal of Mumtaz Ali the aforesaid judgments and decrees were set aside and the cases remanded for separate trial. Accordingly, the two suits were separately tried and vide separate judgments dated 30-3-1992 the suit filed by the petitioners were decreed while the suit filed by Mumtaz Ali was dismissed. The view taken by the learned Court was that registered sale-deed in favour of Riaz Ahmad and Manzoor Ahmad will take precedence over the receipt, the execution of which was not proved beyond shadow of doubt.
4. Two separate appeals were filed by Mumtaz Ali against the said judgments and decrees. The learned first appellate Court took the view that receipt Exh.P.l, evincing sale in favour of Mumtaz Ali, was duly proved and it was not shown that Ghulam Ali, from whom the petitioners had purchased the land, was the owner of the land, and, therefore, an invalid registered deed did not create any title in favour of the petitioners. Accordingly, vide separate judgments dated 6-12-1995, the suit filed by Mumtaz Ali was decreed while the suit filed by the petitioners was dismissed. These two revision petitions are directed against the aforesaid judgments and decrees. It may be noted here that Civil Revision No.755 of 1996 arises out of the suit filed by the petitioners while Civil Revision No.756 of 1996 arises out of the suit filed by Mumtaz Ali.
5. The learned counsel for the petitioners contends that a suit was earlier filed by Khushi Muhammad and his son Muhammad Riaz against Ghulam Ali, Muhammad Riaz and Manzoor Ahmad, the two vendees from him wherein the registered sale-deed dated 17-7-1982 was challenged. This suit was dismissed on 7-2-1987 and, therefore, the sale in their favour stood perfected. Another grievance is that documentary evidence produced on the record clearly established that Ghulam Ali owned land measuring 23 Kanals, 5 Marlas in the Khata from which sale was made by him vide registered sale-deed dated 17.-7-1982 but it was ignored. His next contention is that Exh.P.1, which was only a receipt, at best amounted to an agreement to sell which did not create any right, title or interest in favour of Mumtaz Ali to maintain a suit for declaration and in any case a registered sale-deed was to be preferred against an unregistered document according to section 50 of the Registration Act. He further submits that according to the evidence produced in the case, the petitioners have been in possession and they were illegally dispossessed.
6. On the other hand, the learned counsel for the legal heirs of Respondent No.1 submits that the matter stands concluded by a finding of fact that Khushi Muhammad had sold the disputed land to Mumtaz Ali and oral sale of agricultural land being permissible which was prior in time than the registered sale-deed, no case is made out for interference. He submits that' there was no evidence that the petitioners had ever entered possession of the disputed land or were illegally dispossessed.
7. The submissions made by the learned counsel for the parties have been considered. In fact both the judgments and decrees of the learned two Courts are not sustainable. Neither the suit for possession filed by the petitioners nor the suit of Mumtaz Ali, claiming exclusive title to the land in dispute, was maintainable for the simple reason that the land in dispute comprised un-partitioned joint Khata in which Ghulam Ali and Khushi Muhammad were co-sharers along with others. In the Jamabandi (Exh.P.8), for the year 1981- 1982, Ghulam Ali's share indicated therein is 23 Kanals, 5 Marlas. Exh.D.4, another Jamabandi for the year 1981-1982 shows the total shares in the Khata as 268738560 with a total area of the. Khata as 478 Kanals, 5 Marlas. In this Jamabandi both Khushi Muhammad and Ghulam Ali are shown to be the co-sharers. The Jamabandies Exh.P.3 and Exh.D.4 produced in the suit of Mumtaz Ali respectively for the years 1977-1978 and 1981-1982 clearly establish that both Ghulam Ali and Khushi Muhammad, were joint owners in an un-partitioned Khata. The finding of the learned first appellate Court that Ghulam Ali's title was not established is, thus contrary to the record and is, accordingly, set aside. Therefore, notwithstanding the fact that both Khushi Muhammad and Ghulam Ali transferred specific Khasra numbers, the sales made by them will be operative to the extent of their shares in the Khata.
8. As far as the sale by Khushi Muhammad in favour of Mumtaz Ali is concerned the finding of the learned first appellate Court that Exh.P.1, the receipt, was duly proved is duly supported by the evidence produced in the suit of Mumtaz Ali. His case, supported by P.W.3 Muhammad Sharif, was that the balance sale consideration of Rs.7,000 had also been paid to Khushi Muhammad. He (Khushi Muhammad) was examined as P.W.6 who categorically conceded sale in favour of Mumtaz Ali. It may also be noted that oral sale in the rural areas in permissible under the law. I have no doubt in my mind that since both the plaintiffs were co-sharers in the joint un-partitioned Khata and their remedy was to seek partition in accordance with law by impleading all the other co-sharers in the Khata.
9. Reference may be made to Mst. Resham Bibi and others v. Lal Din and others (1999 SCM R 2325) according to which if a co-sharer is dispossessed by another co-sharer his remedy is for partition of the joint property or a suit under section 9 of the Specific Relief Act for possession but a regular suit under section 8 is not maintainable.
10. When confronted the learned counsel for the petitioners contended that the suit filed by the petitioners could be treated as one under section 9 of the Specific Relief Act. This prayer cannot be accepted for more than one reason. Firstly that there was no specific averment that the petitioners were illegally and forcibly dispossessed from the land in dispute. The averment in para.2 of the plaint of the petitioners was that the defendants in the suit had, without the consent of the plaintiffs, occupied the said land and had raised construction. Secondly, that no satisfactory evidence was produced that the petitioners had been dispossessed within six months of the suit filed by them. No independent witness was produced by the petitioners in support of the contention. The two witnesses examined by the petitioners were Muhammad Sharif, the guardian of the minor plaintiff, and Manzoor Ahmad the father of the minor plaintiff and their testimony was self-serving statements.
11. For what has been stated, Civil Revision No.755 of 1996 is dismissed with the observation that the petitioners will have the same rights in the joint unpartitioned Khata which Ghulam Ali had while Civil Revision No.756 of 1996 is partly allowed and the suit filed by Mumtaz Ali for declaration of exclusive title to the land in dispute is dismissed with the observation that the legal heirs of Mumtaz Ali deceased will also have the same rights in the joint un-partitioned Khata which Khushi Muhammad had. No order as to costs.