JAWWAD S. KHAWAJA, J.---The petitioners/defendants are the legal representatives of Muhammad Sadiq. They impugn the appellate judgment and decree dated 2-6-2001 whereby the decree of the learned trial Court dated 18-12-1994 was set aside and the suit filed by the respondents/plaintiffs seeking possession of the suit property was decreed.
2. The facts of this case are relatively straightforward. The land in dispute measures 11 Marlas and is comprised in Khasra No.847. It is the case of the respondents/plaintiff's that they are co-owners in the said Khasra and are entitled to possession of the disputed land. The defence set up by the petitioners is that they had purchased the disputed land from Faiz Ullah, who was also one of the co-owners in Khasra No.847. According to the petitioners/defendants, by means of a registered sale-deed, they had purchased land measuring 2 Kanals, 4 Marlas from Faiz Ullah and thereafter constructed their residence on the site. It is their case that thereafter the disputed 11 Marlas were sold by Faiz Ullah to their predecessor Muhammad Sadiq by means of an oral sale. The admitted position is that the petitioners are in possession of the suit-land.
3. In view of the foregoing controversy, Issues Nos.3 and 4 were framed by the learned trial Court in the following terms:-- "(3) Have the plaintiffs no cause of action and locus standi? OPD-1.
(4) Is the suit justified? OPP"
The entire case of the respondents/plaintiffs for possession of the disputed land was based on title.
It was, therefore, for them to prove their title. It is not disputed that Faiz Ullah was a co-owner in Khasra No.847. Likewise the registered sale-deed whereby Faiz Ullah sold 2 Kanals, 4 Marlas to the predecessor of the petitioners is not in dispute. Therefore, as an alternate, the respondents/plaintiffs could also have succeeded in their suit if it was proved that Faiz Ullah did not have the requisite entitlement in Khasra No.847 to justify sale of the disputed 11 Marlas. At this point it is relevant to note that Faiz Ullah has neither appeared before the learned Courts below and nor has he entered appearance to contest this petition despite service..
4. I have gone through the record with the assistance of both the learned counsel and find that the plaintiffs (respondents Nos.1 to 7) have, at most, been able to establish title to 33 Marlas out of the total area of 7 Kanals, 4 Marlas comprised in Khasra No.847. It is established from Exh.D.1 that Aurangzeb and Takka Khan (respondents Nos.1 and 2) sons of Kalay Khan along with their brothers Muhammad Sharif and Dilawar Khan were owners of`24 shares in the Khasra while Atta Ullah and Sana Ullah (respondents Nos.3 and 4) sons of Saida Khan and their two sisters Razia Begum and Inayat Begum (respondents Nos.5 and 6) were jointly owners of 21 shares. The remaining respondent/plaintiff is Ghulam Sughra daughter of Muhammad Sharif. From the array of parties in this petition it is reasonable to assume that Muhammad Shull' had died and it is for this reason his daughter was a plaintiff. If, therefore, Muhammad Sharif's entire entitlement in Khasra No.847 equivalent to six shares is calculated as part of the entitlement of the respondents/ plaintiffs the total share of the respondents/plaintiffs would come to.39 shares in the Khasra. If one share is equivalent to one Marla, as appears from the contents of the plaint, it would follow that the respondents/ plaintiffs were owners of 39 Marlas in the said Khasra out of the total 144 Marlas.
5. In their plaint the respondents/plaintiffs claimed possession of the disputed land equivalent to 11/144 share in Khasra No.847 with specific metes and bounds. The Khasra itself has not been partitioned although one of the P.Ws. Stated that a partition had been effected. Regardless of whether a partition of the Khasra had taken place or not the petitioners could only have succeeded if they had established either that Faiz Ullah had sold his entire entitlement and, therefore, could not convey title in the disputed eleven Marlas or, in the alternate, if they had brought proof on record to show that their entitlement in Khasra No.847 could only be satisfied if the disputed eleven Marlas were included in their share. These circumstances, they had not been able to establish.
Considering that the predecessor of the petitioners had purchased land in Khasra No.847 and as a result they have become co-sharer therein, the respondents/plaintiffs could not have claimed possession of the disputed land particularly in view of the fact that they had only been able to establish collective title of 39 Marlas in all out of the total area of 144 Marlas in Khasra No.847.
6. The learned Appellate Court has not taken the above circumstances into account and has proceeded on erroneous premises. I have gone through the impugned judgment with the assistance of learned counsel for the parties. The learned Appellate Court has based its findings on a decree of the learned Court at Kharian dated 21-1-1989 whereby an earlier suit filed by the predecessor of the petitioners seeking declaration of title to the disputed land and praying for a permanent injunction by way of consequential relief was partially decreed. In the earlier suit the declaration sought by the petitioners was not granted for the reason that they had not produced any registered sale-deed in their favour in respect of the 11 Marlas in dispute. The learned trial Court rightly held that the oral sale asserted by the petitioners in the earlier suit was of no effect because the property had a value of more than Rs.100 and, therefore, a conveyance could only have been effected by means of a registered deed. The relief by way of prayer for declaration sought by the predecessor-in-interest of the petitioners was declined in the earlier suit, but the learned Court granted the injunction whereby the respondents were restrained from dispossessing the petitioners from the suit-land otherwise than in due course of law.
7. It is true that in the earlier suit the petitioners failed to get a declaration of title to the suit-land.
This stance, however, is not relevant in the present litigation because it was for the respondents/plaintiffs to establish their own title through evidence. The mere fact that the petitioners are not owners of the disputed land does not automatically mean that the same is owned by the respondents/plaintiffs. The learned Appellate Court, therefore, fell in error by holding that the question of title had been settled in the earlier litigation.
8. Secondly the learned Appellate Court also fell in error by holding that the respondents/plaintiffs had stepped into the shoes of Faiz Ullah. This was neither the case of the respondents in their plaint nor was there any proof to show that Faiz Ullah had made any conveyance in favour of the respondents/plaintiffs.
9. In the foregoing circumstances, the impugned appellate judgment and decree are not sustainable. The same are, therefore, set aside. As a result the decree of the learned trial Court dated 18-12-1994 is affirmed.