' MAULVI ANWARUL HAQ, J.---This judgment shall dispose of C.Rs\No,925 and 1614 of 2000 as these proceed against a common judgment.
2. On 12-3-1983, the respondent filed a suit against the petitioner. In the plaint it was stated that they are joint owners of shop described in the plaint. It was further stated that the plot on which the shop is located was inherited by them from their predecessor-in-interest Ch. Ghulam Yasin son of Merran Bakhsh and all the respondents raised construction thereon including the said shop. Out of the respondents the widow has 1/8 share, five sons 7/44 each while a daughter has 7/88 share.
Petitioner No, 3 was considered to be like a father by the respondents. However, he in order to grab the property induced respondent No,7 to execute a sale-deed and got it registered in favour of his brother Umar Hayat, deceased. It was stated that respondent No, 7 never sold the shop. In alternate it was' stated that even if a valid sale is proved then respondent No,7 could have sold only, 7/44 share. The shop was stated in possession of Muhammad Amin, petitioner No, 5, who is son of petitioner No, 3 as tenant, who has stopped payment of rent and started denying their title. Umar Hayat had died and petitioners Nos. 1 to 4 are his L.Rs, With these averments ejectment was sought that the respondents are owners of the said shop and petitioner No 5 is their tenant and the registered sale-deed dated 1-2-1982 is illegal and void. In alternative a declaration was sought that respondents Nos. 1 to 6 are owners of 33/44 share and are entitled to receive rent to the said extent.
The petitioner filed written statement. It was maintained that Plot No, 51 measuring 1 kanal was allotted to Muhammad Rafique, Ghulam Yasin sons of Meeran Bakhsh in equal share. Muhammad Rafique died after Ghulam Yasin. Shares of the respondents were accordingly worked out. It was also denied that respondent No 1 was son of Muhammad Rafique. The plea taken by. Them was that the shop had fallen to the share of respondent No, 7 as result of private partition. It was stated that respondent No,7 and petitioner No, 5 were employed in National Construction Company, Chashma Barrage and petitioner No, 7 sold a shop to; Umar Hayat out of his own free-will and from time to time a consideration of Rs, 45,000 was paid while the possession was delivered by respondent No,
7. Rs, 18,000 was mentioned as consideration to save stamp duty. It was denied that the sale-deed was result of any undue influence. According to them the share of respondent No, 7 is 16/36 in the said plot, which comes to 4-1/2 marlas. Four shops have been constructed by the respondent on the said land. According to them the shop transferred to the petitioner is very much within the share of respondent No, 7 in the joint property. The following issues were framed by the learned Trial Court:---
(1) Whether the impugned sale by the plaintiff No, 7 in favour of Late Umar Hayat predecessor-in- interest of defendants regarding the shop is illegal, against facts, without consideration, undue influence and as such inoperative on the rights of the plaintiffs? OPP
(2) Whether the plaintiff Ilyas was not a sale owner of the shop in suit, as - such remaining plaintiffs are not bound by the act of the plaintiff No, 7 OPD 1-6.
(3) Whether Zafar Ali plaintiff is not real son of Ghulam Yaseen? OPD
(4) Whether the suit has been deliberately wrongly valued for the purposes of Court fee?
OPDWhether the defendants are entitled for special costs? OPD.
' Whether the defendants are bona fide purchasers for value without notice as such their rights are protected? OPD Whether the description of property is incorrect OPD -A) Whether the plaintiffs No, 7 was the sole owner of the suit shop due to family partition and was competent to sell it out to Umar Hayat the predecessor of the defendants? OPD -B) Whether the plaintiff No,7 was the sole owner of the suit shop due to family parition and was competent to sell it out to Umar Hayat the predecessor of the defendants? OPD -C) Whether the plaintiffs suit is not maintainable in its present form? OPD -D) Relief.
' Evidence of the parties was recorded. The suit was partly decreed to the extent of share of respondents Nos. 1 to 6, whereas it was dismissed to the extent of share of respondent No, 7, which was worked out 7/44. This was done vide judgment and decree dated 8-3-1993. Both the parties filed first appeals, which were heard together by the learned DJ, Mianwali. Both appeals were dismissed on 14-4-2000. However, share of respondent No,7, which was held to be validly sold worked out as 79/220: C.R. No, 225 of 2000 has been filed by the said defendants while C.R. No,1614 of 2000 has been filed by the said plaintiffs.
3. Malik Noor Muhammad Awan, Advocate, learned counsel for petitioners contends that the sale could not have been declared to be void in view of established facts on record; that the shop was part of joint property of the petitioners and the sale made by petitioner No, 7 was to be adjusted according to his share at the time of partition.
4. Ch. Inayat Ullah, Advocate, for respondents pressed C.R. No 1614 of 2000 with the contention that a valid sale has not been proved to have been made by respondent No,
7. In reply to the said contention he urges that the plea of adjustment was not taken in the written statement, wherein only plea was that the shop had been adjusted to the share of respondent No, 7 as result of a private partition.
5. Malik Noor Muhammad Awan, Advocate, rejoined to state that there is no evidence that undue influence was exerted upon respondent No, 7, who himself appeared in the witness box and admitted to have executed sale-deed and to have got it registered.
6. I have gone through the copies of record appended with both these Civil Revisions with the assistance of learned counsel for parties. I have already narrated above material contents of the respective pleadings. So far as the factum of sale, itself, is concerned the original document is on record as Exh.D.1. Apart from the fact that respondent No, 7 namely Ilyas Ahmad Shaheen, appeared as P.W.2 and was duly confronted with Exh.D.1. He admitted that it bears his signature as well as thumb-impression. Malik Dost Muhammad, Advocate, marginal witness of the sale-deed dated 1-2-1982 and Malik Ghulam Ahmad, Advocate, who identified the vendor before Sub- Registrar appeared respectively as DW.3 and DW.4. DW.2, Muhammad Naseem Khan, brother of Muhammad Ramzan deceased scribe produced his Register and relevant entry was produced as Exh.D.5. I do find that the petitioner had led sufficient evidence to prove the said document execution whereof has been admitted by respondent No,
7. The possession admittedly is with the petitioner under the sale.
7. Coming to the said contention of the learned counsel for petitioner I have already referred to the contents of written statement above. It was duly pleaded that the share sold by respondent No,7 is well within his share in the entire joint property of the petitioners. It is very case of the petitioners, themselves, that the sale is invalid because respondent No, 7 had sold the property in excess of his share. The details of joint property are mentioned in the plaint itself. It has come on record that there are four shops on the joint plot and some portion is lying vacant as well. In the above state of evidence on record the sale could not have been declared void as such. However, it had to take effect in accordance with the share of respondent No, 7 at the time of partition of the entire joint property. For all what has been discussed above C.R. No, 1614 of 2000 is dismissed while C.R. No, 925.
Of 2000 is partly allowed inasmuch as the .Registered sale-deed dated 1-2-1982 is declared to be ineffective upon the rights of petitioners/plaintiffs Nos. 1 to 6 in the joint property and it is further declared that it shall take effect accordingly in accordance with the share of respondent No, 7 in the joint property at the time of partition. No orders as to cost.