' MIAN SAQIB NISAR, J.---Respondent No.1, filed a suit for declaration with regard to a part of the land, measuring about 3 Marlas, out of the land measuring 7 Marlas, which he has purchased from Qasim Ali, vide registered sale-deed dated 16-7-1985, who admittedly was the owner of such land; besides, he challenged the sale-deed by Talib Hussain, the appellant in favour of defendants Nos.1 to 4, dated 1-10-1988 and also the Mutation No.987, through which ostensibly the same land was sold. He also sought the relief of the possession for that portion of about 3 Marlas, which was encroached upon by the said defendants; the suit was contested by the defendants and issues were framed, the important being are as under:--
(1) Whether the plaintiff is owner of the suit property after having purchased it from Qasim Ali through sale-deed dated 16-7-1985? OPP.
(2) Whether Mutation No.9847 is against the law and facts and ineffective on the rights of the plaintiff? OPP
(3) Whether the sale-deed dated 1-10-1988 by defendant No.6 in favour of defendants Nos.1 to 5 is collusive, fictitious, based on fraud and ineffective on the rights of the plaintiff? OPP ' Parties were put to trial and the learned Court, finding that the plaintiff is the exclusive owner of the plot, sold to him through registered sale-deed dated 16-7-1985 and that a part thereof has been encroached upon decreed the suit vide judgment and decree dated 27-4-1995; appeal filed by the appellant failed on 19-3-1997.
2. Some more facts, which are relevant to the case are, that Qasim Ali was the owner of the land inter alia measuring 7 Marais, bearing Khasra No./3658, and out of the same, he had sold the said 7 Marlas, as per sale-deed dated 16-7-1985, in favour of respondent No.1/plaintiff; Talib Hussain, the defendant has purchased some share in the said Khasra, which was challenged by Qasim Ali, through a suit, which was compromised on 21-1-1987. Talib Hussain, on the basis of this compromise decree, subsequently had sold the disputed land measuring 2-3/4 Marlas in favour of defendants Nos.1 to 4, who in the garb of this sale encroached upon the plot of the appellant, he was constrained to file the present civil suit; both the parties as mentioned earlier, led the evidence and it has been concluded by the learned trial Court that Qasim Ali had sold a specific plot in favour of Mukhtar Ahmed, the plaintiff and thus any re-sale of the same or a part thereof and the dispossession of the plaintiff by defendants Nos.1 to 4, is absolutely illegal and unlawful. This finding has been upheld by the Court of appeal as well.
3. Learned counsel for the appellant states that Qasim Ali was not the exclusive owner of the entire khasra; he only had the share to the extent of 49 Marlas and therefore, any sale made by Qasim Ali in favour of the present appellant was only the transfer of a share and no specific portion could be sold by him. It is further argued that admittedly Talib Hussain was the co-sharer of the property and he has sold the plot in favour of defendants Nos.1 to. 4, within his entitlement and therefore, they too have become co-sharers of the joint property to the extent of every inch, further acquiring a right for partition of the same. It is also submitted that the plaintiff has failed to prove that the plot sold in his favour by Qasim Ali is the one, which has been purchased by the defendants Nos.1 to 4, from Talib Hussain.
4. I have heard learned counsel for the parties. There is nothing on the record that Talib Hussain was the co-sharer of the property before the compromise decree dated 31-6-1987. As against this Qasim Ali, who admittedly was the owner of the disputed plot had sold the same in favour of Mukhtar by specifying the exact metes and bounds of the plot. Therefore, becoming owner on the basis of the subsequent decree. Talib Hussain had no right to sell the same plot to the defendants Nos.1 to 4. Admittedly the defendants Nos.1 to 4, on the basis of the sale-deed have taken over the possession of the part of the plot already sold to the plaintiff, thus the plaintiff had a right to seek the cancellation of the instrument, which caused prejudice to his right and also sought the possession of the encroached land. This is also what the Courts below have concurrently found, which finding is not shown to be contrary to law. The appeal, therefore, has no merits and is hereby dismissed.