' MIAN SAQIB NISAR, J.-The land underneath the suit property measuring 2-Kanals and 8 Sarsai, bearing Khata No,64 of 1973, situated in Quaidabad Adda, Tehsil and District Khushab, was a property owned by the Government of Punjab, Housing Department, which was put to auction in the year 1954 and was purchased by Fateh Khan to the extent of 3/10 share, Haji Dost Muhammad 3/10 share, Binyameen 1/5 share and Khan Sakesar Khan (the predecessor-in-interest of respondents,Nos. 1 to 5) 1/5 share. The said land has been developed by construction of certain shops. Respondents Nos.l to 5 being the heirs of Khan Sakesar Khan, filed a suit for the partition and for the separate possession seeking the division of the property. Binayameen was proceeded ex parte, whereas Fateh Khan and Haji Dost Muhammad contested the matter. The plea taken in the defence was that l'/5th share purchased by Khan Sakesar Khan was subsequently transferred in favour of Fateh Khan and Sakesar Khan received the consideration amount, which he paid, for the purchase of that property.
2. The issues were framed and the important being:-
(1) Whether the plaintiffs are entitled to a decree for possession through separate possession of l/5th share of suit property? OPP.
(1-A) Whether the predecessor in interest of the plaintiffs abandoned his share and received his amount from the defendants or their predecessor? If so, its effect? OPD.
' The parties led their evidence and the learned trial Court while returning its findings on Issue No,l in favour of the plaintiffs and against the defendants and on Issue No, 1-A against the defendants and in favour of the plaintiffs, decreed the suit through the impugned judgment and decree dated 8-2-2001.
3. Learned counsel for the appellants contends that l/5th share of Khan Sakesar Khan was sold to Fateh Khan and, therefore, he being no more owner of the property, his legal heirs could not seek the partition. However, when questioned about the proof in this behalf, no documentary evidence has been shown and it is conceded that the value of l/5th share of the property was more than the value of Rs,100, resultantly, on account of the provisions of section 54 of the Transfer of Property Act and section 17 of the Registration Act, the alleged sale was invalid. Besides, no convincing oral evidence has been led by the appellants about the proof of the sale and the payment to the predecessor of the plaintiffs.
4. As regards the argument that P.W.l Muhammad Nadir, one of the plaintiffs, has made admission in his statement, that earlier 18 shops were constructed over the suit-land, which were demolished and 37 shops have been constructed thereafter, but he has only contributed to the extent of Rs, 10,000, whereas the total expenses in this behalf were Rs,30/35 lacs, suffice it to say that this by itself would neither mean nor an inference on the basis of the above can be drawn, that l/5th share in the property was sold to Fateh Khan. It was the duty of the appellants to have proved in positive terms the transfer of the said share to them, but from their evidence, they have failed.
' In the light of above, we do not find that the judgment and decree of the learned trial Court is based upon any misreading or non-reading of the evidence calling for interference in this RFA. The appeal thus, has no merits and is hereby dismissed.