NADEEM AZHAR SIDDIQI, J. ---
1. Granted.
2. By this appfication, the defendants Nos. 1 to 3, 5, 6, 7 and 9 have prayed for review of order dated 16.11.2007, by which the compromise on the basis of an application between the plaintiff and the defendants Nos. 10 and 11 was accepted.
3. Mr. Mustafa Lakhani, learned counsel for the defendants submits that the said compromise order was illegal , as the defendants Nos. 10 and 11, who are the co-owner of the property, cannot sell their respective shares in the property without the consent of other co-sharers. He has relied upon the reported cases of All Gohar Khan v. Sher Ayaz (1989 SCM R 130) and Noor Rehman's v. Muhammad Yousaf (2000 CLC 1138).
4. The operative part of the judgment in Ali Gohar Khan's case is reproduced herewith:- "Therefore, it can be said without any fear of contradiction that the parties are co-sharers in the suit property. The question now is whether a co-sharer in such a situation can deal with a joint property in the manner the likes without the express permission of other co-sharers and to their detriment. The answer obviously is in the negative as it is a settled principle of law that in case of joint immovable property each co-sharer is interested in every inch of the subject-matter irrespective of the quantity of his interest. A co-sharer thus will not be allowed to act in a manner which constitutes an invasion on the right of the other co-sharers. A co-sharer in possession of a portion of the joint property, therefore, cannot change the nature of the property in his possession unless partition takes place by metes and bounds."
5. The above reported case is in respect of raising construction and change of the status of the property without the consent of the other owners and does not relate to the sale of the respective shares by co-sharers. The facts of the reported case are distinguishable. There is no restriction in the said order that the co-sharer cannot sell his share without the consent of the other.
6 In another reported case of Noor Rehman's the Peshawar High Court has held as under:- "Admittedly the respondent is a co-owner and a co-sharer in the suit property which according to the plaint consists of many Khasra numbers as such they are interested and have a right in each and every Khasra number of the suit land irrespective of the quantity and quality because no regular partition had taken place between the contesting parties. In such like cases a co-sharer who is in exclusive possession of a specific portion of a joint property cannot alienate, transfer or change the property unless a regular partition takes place between them."
7. The above judgment by a Learned Single Judge of Peshawar High Court is not binding and with due respect I am unable to subscribe the view. Section 44 of Transfer of Property Act permits transfer of share in the property by one of two or more co-owners of immovable property subject to the condition mentioned in the section and its proviso. In absence of any statutory bar the co- owners cannot restrain the other co-owners from selling/transferring their respective shares in the property.
8. Apart from above two judgments the learned counsel for the defendants have failed to show any substantive law, by which the restriction was imposed upon the co-sharer of the property from selling their respective shares without the consent of the other co-owners.
9. Learned counsel for the defendants have also failed to point out any error apparent on the face of the record. The main object of the powers of review is to enable the Court to correct its on mistake and error to prevent injustice. The scope of review is very limited and the grounds on which review can be sought are enumerated in Rule 1 of Order XLVII of C.P.C. The review can be filed where error of law or fact is apparent on the face of the record and should not require any detailed enquiry or evidence to establish it.
10. At this stage, Mr. Mustafa Lakhani submits that the defendants are prepared to purchase the shares of the defendants Nos. 10 and 11 and further submits that under-the right of pre-emption they are entitled to have the first right to purchase the shares of the defendants Nos. 10 and 11. This appears to be a fresh cause of action to the defendants, who may take appropriate action in this.Regard.
11. Mr. Anwar Muhammad Siddiqui, learned counsel for the defendant No. 8 has supported the contention of Mr. Mustafa Lakhani and submits that the whole compromise application as well as order passed thereon is illegal for the reason that by accepting the compromise the whole suit was *disposed of without the consent of the others.
12. From the perusal of the order it appears that the matter was only compromised between the plaintiff and the defendants Nos. 10 and 11 with regard to their respective shares in the property. The order is very clear with regard to the right of the defendants Nos. 1, 2 and 4 to 9 and no compromise was accepted on their behalf and they are free to proceed with the suit.
13. In view of the above position, I do not find any merits in the application, which is accordingly, dismissed with no order as to cost. Review . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.