' JAWWAD S. KHAWAJA, J.---The petitioners-defendants impugn the concurrent decrees of the learned trial Court ,dated 17-6-2002 and the learned appellate Court dated 15-4-2006 whereby a suit filed by the respondent-plaintiff seeking possession of the suit property has been decreed.
2. The facts necessary for the disposal of this petition are straightforward although the record of the case is voluminous and the litigation now spans almost three decades. The respondent- plaintiff asserts his right to possession of 18 Marlas of land on the basis of a sale dated 28-2-1974 purportedly executed in his favour by Mairaj Din, and Muhammad Hussain, who are brothers and the five sons of a third brother, namely, Sardar Muhammad. The names of the sons of Sardar Muhammad are Muhammad Siddique, Muhammad Latif, Muhammad Shafique, Muhammad Waheed and Muhammad Hafeez. The suit-land is comprised in Khasra No.2397 measuring in all 3 Kanals, 16 Marlas and 119-Sq. Ft. The Khasra admittedly has not been partitioned. The Revenue Record produced in evidence (Exhs.D-1 to D.12) shows that it was owned by three persons, namely, Allah BaKhsh and Miran Bakhsh and their cousin Mehr Din. Allah Bakhsh and Miran Bakhsh were each owner of 3/8th undivided share in the Khasra while the balance 2/8th was owned by Mehr Din. The purported vendors named above are all legal heirs of Miran Bakhsh.
3. The suit was resisted by the petitioners, who asserted, inter alia, that the entire suit property had been dedicated as a waqf and, therefore, could not be sold.
' It was also asserted that Muhammad Sharif (predecessor-in-interest of the petitioners), who was originally defendant No.1 in the suit was a mutwali/khidmatgar and had been in occupation of the suit property for many decades. Prescriptive title on the basis of adverse possession was also claimed by Muhammad Sharif. At this juncture, it will be useful to note that the respondent-plaintiff had alleged that after purchasing the suit property in 1974 he left for Dubai, at which, point in time the petitioners-defendants illegally occupied 12 Marlas, 112 Sq.Ft and constructed a house thereon.
This fact was specifically denied. The dispute as such is now confined to 12 Marlas and 112 Sq.Ft. Out of Khasra No.2397.
4. In an earlier round of litigation the matter went upto the Honourable Supreme Court in C.P.
No.2895-L of 2000 filed by the respondent-plaintiff and C.P. No.3099-L of 2000 filed by the present petitioners. Both parties were aggrieved of certain parts of the judgment dated 2-10-2000 in Civil Revision No.994 of 1983, whereby the case was remanded to the learned trial Court. The Honourable Supreme Court confined the controversy and limited the scope of the remand in the following terms:-- "7. At this stage, learned counsel for the parties agreed that both these petitions may be converted into appeals and the same be partly accepted to the extent that the scope of remand of the suit should be extended to prove sale by all the vendors in favour of the respondent-plaintiff on the basis of further evidence to be led by the parties by maintaining the findings that the said portion of land was not waqf property.
8. By consent, these petitions are converted into appeals, they are partly accepted, in that the case is remanded to the trial Court to allow the parties to produce further evidence for and against the sale allegedly made in favour of the respondent-plaintiff by all the abovementioned vendors. The findings of the Courts below that this part of the land was not waqf property and that the respondents had not become owners by way of adverse possessions are hereby maintained."
5. Mairaj Din, one of the vendors, appeared for the respondent-plaintiff and acknowledged that he had executed the sale-deed. Muhammad Latif, one of the sons of Sardar Muhammad, also appeared as P.W.8 and deposed that he and his four brothers had also executed the sale-deed.
However, Muhammad Hussain one of the alleged vendors appeared as D.W.1 and categorically denied execution of the sale-deed and his thumb-impressions thereon. He deposed that the property had been dedicated by way of waqf by his ancestors and that Muhammad Sharif, predecessor-in-interest of the petitioners had been in occupation of the trust property which comprised of a mosque, a shrine and a darsgah. Despite this express denial made under oath, no attempt was made by the respondent-plaintiff to prove execution of the sale-deed by Muhammad Hussain.
6. It was, argued on behalf of the petitioners that, in the circumstances of the case, the respondent-plaintiff could not be granted a decree for possession, firstly, because the suit-land had not been partitioned and, therefore, without identifying the share of Mairaj Din and the five sons of Sardar Muhammad in the suit property through metes and bounds, the respondents- plaintiffs had no locus standi to get possession of the entire suit-land from the petitioners.
Secondly, it was argued that in view of the fact that Khasra No.2397 was jointly owned by the three co-owners in the undivided shares mentioned above, Miran I3akhsh and his legal heirs could at best claim 3/8th share of the suit property and not the entire area of 12 Marlas, 112 Sq.Ft, mentioned in the plaint. Thirdly, learned counsel for the petitioner argued that Miran Bakhsh had four daughters, namely, Mairaj Begum, Amir Begum, Sardar Begum and Aziz Begum, who had not conveyed their share in favour of the respondent-plaintiff and likewise Sardar Muhammad also had two daughters and one widow, who had not conveyed their interest in favour of the respondent-plaintiff. It was submitted that the shares of the daughters of Miran Bakhsh and the widow and two daughters of Sardar Muhammad also could not be claimed by the respondent- plaintiff. These submissions have merit because the petitioners can only be dispossessed by the respondent-plaintiff to the extent of his title in the suit property and that too after partition of the suit property.
7. Learned counsel for the respondent argued that as per decision of the Honourable Supreme Court, the disputed area was held not to be waqf property. He stated that Muhammad Siddique (D.W.5) and Muhammad Tufail (D.W.6), who arc the sons of Mehr Din, had testified that their elders had dedicated the entire Khasra No.2397 by way of waqf, and likewise Muhammad Hussain, who appeared as D.W.1, had also deposed to the same effect. On this basis, it was contended that the share of Mehr Din and Muhammad Hussain in Khasra No.2397 could be treated as waqf property and if this hare was adjusted towards the area occupied by the mosque, shrine and darsgah, the title to the suit-land would become vested in the vendors (excluding Muhammad Hussain) named in the sale-deed, unencumbered by any beneficial interest created by the waqf. This submission, however, is misconceived and does not follow from the evidence of D.W.5, D.W.6 and D.W.1. Their testimony is to the effect that the entire Khasra was dedicated by way of trust. However, in view of the consent judgment passed by the Honourable Supreme Court, it has been determined that the land in dispute was not waqf property. The testimony of D.W.5, D.W.6 and D.W.1 has, therefore, to be read subject to the finding of the Honourable Supreme Court. The fact, however, remains that the suit property which admittedly is part of Khasra No.2397 vested in the legal heirs of Allah Bakhsh, Miran Bakhsh and Mehr Din, the original owners thereof, it, therefore, follows that the disputed area is, to date, unpartitioned. The respondent-plaintiff could at best claim title in the undivided suit property to the extent of the share which came to vest in Mairaj Din son of Miran Bakhsh and the five sons of Sardar Muhammad, named above. The exact calculation of these shares has not been made by the learned Courts below and nor it is necessary to do so in the present case.
8. The facts of the case suffice for the purpose of holding that the respondent-plaintiff cannot be granted a decree for .Possession of the entire suit-land when clearly he is not vested with title to the total area claimed by him. In the circumstances, the decrees of the two Courts below A granting possession of the entire suit-land to the respondent-plaintiff are set aside. This judgment, however, shall not prevent the respondent-plaintiff from filing a suit for partition of the disputed land and to claim possession of the area, which may fall to his lot, if such a suit is filed by him and is decreed.
9. This revision petition is allowed in the above term. The petitioners shall also B be entitled to their costs throughout.