MUHAMMAD SAYEED AKHTAR, J.---The plaintiff/respondent filed a suit for possession of shop on land measuring 1 Marla in Khata No,360 purchased for a consideration of Rs,20,000 vide sale-deed dated 6-7-1995. It was averred that the vendor and the occupant of the suit-land had promised to hand over the possession of the land to the plaintiff but despite requests the same has been declined.
' The suit was resisted alleging that his father had divided the land and given 4 Marlas to the defendant and his brother and a Mutation No,5471 to the same effect was attested on 28-3-1996 and that the sale-deed dated 6-7-1995 was forged and fictitious and without consideration.
' Out of the pleadings of the parties following issues were framed:--
(1) Whether the suit is mala fide? OPD
(2) Whether the plaintiff has no cause of action? OPD
(3) Whether the suit is not maintainable in its present form? OPD
(4) Whether the suit property is not described correctly in the plaint? If so its effect? OPD
(5) Whether the suit has not correctly valued for the purpose of court-fee and jurisdiction? OPD
(6) Whether the plaintiff is owner in possession of the disputed property through registered deed dated 6-7-1995, If so, whether he is entitled to a decree as prayed for? OPP
(7) Relief.
The learned trial Court after recording the evidence of the parties vide its judgment dated 3-6-1998 decreed the B suit of the plaintiff/respondent. The appeal filed by the defendant/petitioner before the learned Additional District Judge, Jhang failed on 3-11-1999.
2. Learned counsel for the petitioner contended that the sale-deed Exh.P.2 shows that the petitioner purchased 1/541 share measuring 1 Marla out of Khata No,360. The respondent could only file a suit for partition. He further contended that the suit was for possession of the shop whereas the petitioner had purchased only 1 Marla of land and not shop.
' Conversely the learned counsel for the respondent submitted that the respondent had purchased 1 Marla of land. The boundaries of which given in the plaint correspond to the boundaries given in the sale-deed. The suit for possession was maintainable and has been rightly decreed.
3. I have gone through the judgments of the Courts below, perused the record and considered the arguments of the learned counsel for the parties. The suit is admittedly for possession of shop. It was averred in the plaint that at the time of the registration of the sale-deed regarding 1 Marla of land, the possession of the same was not delivered to the plaintiff/ respondent. The vendor/co- owner in a joint Khata can pass on the land in his possession to the vendee. In the instant case admittedly the possession of the land purchased was not delivered to the plaintiff/respondent. The plaintiff should have sued the vendor i.e, Allah Ditta, the father of the defendant. The defendant was in occupation of the land under his father who was not impleaded as party. The sale-deed shows that the plaintiff became co-owner in the Khata along with the father of the defendant. It is not the case of the defendant/respondent that the petitioner illegally occupied the land after the sale in favour of the respondent. The only remedy available to the plaintiff/ respondent was to file a suit for partition of the suit-land. Even otherwise the respondent cannot have a shop in lieu of 1 Marla land purchased by him. In my view the instant suit for possession against the petitioner was not maintainable. Both the Courts below misdirected themselves in applying the law to the facts of the case.
4. For what has been stated above this petition is allowed, the judgments of the Courts below are set aside and the suit of the plaintiff/respondent is dismissed with no order as to costs.