SYED ARSHAD ALI J.---Impugned herein is the judgment and decree dated 30.10.2008 passed by the learned Additional District Judge/Izafi Zila Qazi-III Swat, whereby the appeal filed by the defendants/respondents against the judgment and decree dated 09.03.2005 rendered by learned Civil Judge-V/Illaqa Qazi Swat was accepted, thereby judgment and decree of the trial Court dated 09.03.2005 was set aside and resultantly suit of the plaintif fs/petitioners was dismissed.
2. Brief but essential facts of the case are that Mian Hazrat Room, predecessor-in-i nterest of the present petitioners Nos, 1 to 11 had filed a claim before the erstwhile Chairman Federal Land Commission under Martial Law Regulation 122 to the effect that the properties mentioned in the said claim indeed belong to him which were forcibly taken over by the Ex-Ruler of Swat. The said case was entrusted for adjudication to the Officer on special duty being an authorized officer. The said appeal/claim of the predecessor of the petitioners was dismissed by the said authority vide order dated 24.12.19 73. Predecessor of the petitioners challe nged the said order before the next higher authority i,e, Chairman Feder al Land Commission through a revision petition, who while accepting the said revision petition had directed that the entire disputed property be restored to the father of the predecessor of the petitioners Nos, 1 to 11 namely Mian Hazrat Jamal. Resultantly , the said prede cessor of the petitioners filed an execution petition and accordingly he was given the constructive possession of 15 numbers of properties/houses by the executing authority on 13.10.1975. The legal heirs of Ex-Ruler of Swat filed a review petition before Chairman Tribunal Land Disputes, Dir, Swat and Chitral at Mardan presided over by his Lordship as then he was Mr. Justice (Rtd.) Qaisar Khan. The Worthy Tribunal accepted the claim of the legal heirs of the Ex-Ruler of Swat and accordingly dismissed the claim of the predecessor of the petitioners vide order dated 20.12.1981. The said order of the Worthy Tribunal was challenged before this Court by the predecessor of the petitioners Hazrat Jamal through W.P. No, 22 of 1982. During the proceedings, the matter was patched up between the parties through a written compromise dated 15.11.1983 whereby both the parties have agreed to divide the entire property by ratio of 50/50 and thus both the parties on the strength of this compromise, deed become joint owners in the entire property . The writ petition was disposed of by this Court in terms of the compromise deed which was placed on file vide order 16.12.1984. It would be pertinent to note that on 14.9.1980 the legal heirs of the Ex-Ruler had sold one property i,e, a house to respondent No, 1 through a registered deed bearing No, 383 dated 14.9.1980. The fact that the property which was subject-matter of these proceedings was sold through the said deed to the respondent No, 1 is an admitted fact and at the time of such a sale the legal heirs of Ex-Ruler/vendors of the respondent No, 1 were not declared as owners of the property .
3. When the claim of the predecessor of the petitioners was decreed by the Chairman Federal Land Commission on 16.8.1974 and the constructive possession was also handed over to the predecessor of the petitioners, Mian Hazrat Room. On 01.12.1980, he filed a suit in the Court of Senior Civil Judg e Swat for cancellation of the aforesaid deed dated 14.9.1980 on the ground being the true owner of the property . However , on the decision of the Worthy Tribunal the said suit was adjourned sine die subject to the final outcome of the writ petition bearing No, 22 of 1982 which was filed before this Court.
4. After the judgment of this Court in terms of the compromise between the predecessor of the petitioners and the legal heirs of. the Ex-Ruler of Swat in W.P. No, 22 of 1982, Hazrat Jamal the predecessor of the petitioners had filed a second suit on 21.07.1983 for cancellation of the registered deed No, 383 dated 14.9.1980 whereby one house was sold to the predecessor of the present respondents.
5. On being summoned, the respondents have contested the suit in their written statement, issues were framed and on conclusion of the evidence, the learned trial Court vide judgment and decre e dated 09.03.2005 decreed the suit of the present petitioners against the respondents.
6. The respondents had challenged the aforesaid judgment and decree of the trial Court dated 09.03.2005 through Civil Appeal No, 161/13 of 2006. The learned appellate Court through impugned judgment and decree dated 30.10.2008 while allowing the appeal has set aside the judgment and decree of trial Court, hence the present petition.
7. The learned counsel appearing on behalf of the petitioners has argued that the impugned judgment and decree of the learned appellate Court is not only contrary to record but against the law. He has stated that when the present respondents had raised an objec tion in the written statement that in case of cancellation of the deed, they should be compensated from the other property of the Ex-Ruler of Swat, therefore, once this plea was raised in the written statement they cannot be allowed to depart from the said pleadings and thus cannot turn around by saying that the plaintif fs/petitioners should be adjusted/compensated from the other proper ty of the Ex-Ruler of Swat which he had jointly owned with them on accoun t of the aforesaid compromise. He further argued that indeed it was a suit for cancellation of a document which is governed under section 39 of the Speci fic Relief Act, which provides a special mechanism, hence, the issue of adjustment with the Ex-Ruler does not arise because he is a co-sharer to the extent of half share in the suit property . He lastly argued that the principle that a joint owner in possession of a specific portion of a common property can validly transfer the entire property in his possession subject to adjustment at the time of partition is not applicable to residential and commercial properties as the same principle applies only to the agricultural property .
8. On the other hand, learned counsel for the respondents has argued that the plaintif fs/petitioners were never given title of the property by any decree of the Court and they claim their title only on the basis of a compromise and furthermore, suit of the plaintif fs was badly time-barred as under Article 91 of the Limitation Act the period for filing any suit is 3 years, whereas the present suit was filed on 01.12.1980.
9. Arguments heard and record of the case was perused.
10. On accession of the Princely State of Swat into the territory of Islamic Repub lic of Pakistan in the year 1969, regarding the disputes in respect of all the properties situated in the then princely States of Swat and Dir, an inquiry commission was appointed by the Provincial Government vide its Notification bearing No, 66 S.O. (S.P.I.)H.D/70, dated 8th October , 1970. Latter for settlement of disputes relating to immovable properties situated in Swat and Dir, the Federal Government vide Notification dated 12.04.1972 framed Regulation known as "Devolution and Distribution of Property (Dir and Swat) Regulation No, 122" (hereinafter referred to as Regulation). Through the Regulation, the earlier appointed inquiry commission by the provincial government was given a mandate to inquire and recommend to the Provincial Government the following issues relating to the immovable properties:- a) What property is State property of the former States of Dir and Swat respectively; b) What property is private or personal property of the late Nawab Sir Shahjehan Khan, ex-Ruler of the former State of Dir and the late Sir Abdul Wadud Mian Gul Sahibzada, K.B.E. Badshah Sahib of the former State of Swat respectively; c) The respective shares of the various heirs of the aforesaid two ex-Riders in their personal or private property .
However , under Para-4(a) of the said Regulation, it was declared that: "the State property shall vest and shall be deemed to have vested in the Provincial Government on and from the coining into force of the Regulation".
Under Para-5 of the said Regulation, it was declared that any dispute relating to the said property was to be decided by the Provincial Government.
11. The subject-matter of dispute between the legal heirs of Ex-Ruler of Swat and the predecessor-in-interest of the petitioners were 15 properties/houses, out of which, one house which was in possession of the predecessor of the respondents was sold to him by the legal heirs of the Ex-Ruler of Swat through a registered deed dated 14.09.1980 and at the relevant time through the judgment of Federal Land Commission the predecessor of the present petitioners was declared as owner , therefore, at the relevant time,' the legal heirs of the Ex-Ruler of Swat were not declared owners of the property . However , the deed cannot be cancelled on the said ground because subsequently on the basis 'of the judgment of the Worthy Tribunal dated 20.12.1981 the legal heirs of the Ex-Ruler of Swat become full owners of the property and subsequently their share was reduced to half in the entire 15 properties in view of the written compromise dated 15.11.1983 effected between both the parties. Hence, it settled principle of law that if the vendor owing to a title defect sell a property and subsequently become owner of that property then the said transaction cannot be annulled on this score that at the relevant time the seller was not a declared owner of the property . In this regard wisdom can be drawn from the judgment cited as "Ashfaq Ahmad and 6 others v. Ch. Maqbool Raza and 4 others (2008 CLC 1340 ) and under the principles of estoppel embodies in Article 114 of the Qanun-e-Shahadat Order , 1984. In Illustration to Article 114, the present issue has, been elaborately described as under:- "A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to bay and pay for it.
The land afterwards becomes the propert y of A. and seeks to set aside the sale on the ground that, at the time of the sale he had no title. He must not be allowed to prove his want of title."
12. It is evident from the admitted evide nce of the parties that all the 15 houses, which were subject-matter of earlier proceedings are similar in nature and are situated in one Mohallah namely Miangano Cham and in view of the compromise dated 15.11.1983 which was approved by this Court. both the parties are joint owners in the entire 15 houses. Thus, the shares of both the parties i,e, predecessor of the present petitioners and the legal heirs of Ex- Ruler of Swat were having half share in the entire property comprised of 15 houses. It is also evident from evidence that Musafar the predecessor of the respondents was already in possession of the said house, therefore, his possession over the house was on behalf of the both i,e, predecessor of the petitioners and legal heirs of the Ex- Ruler of Swat.
13. In this view of the matter , when both the parties i,e, legal heirs of Ex-Ruler of Swat and predecessor of the petitioners were joint owners in the suit property then it is settled law that when both the parties are joint owners in a common property then every share-hold er has an interest in each and every inch of the property , however , every owner in possession of a specific portion of the property is competent to alienate the said portion of the property and the said sale is subject to the final partition of the property . Indeed on such sale the Vendee steps in shoes of the vendor and is to claim those rights which are available in favour of the vendor . In this regard, reliance can be placed on case law cited as "Muhammad Muzaffar Khan v. Yusuf Khan " (PLD 1959 Supreme Court 9), wherein it was held that:- The vendee of co-sharer who owns an undivided Khata in common with another , is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property , to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property . Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers. It is difficult to see in these circumstances why the vendee of specific plots acquired from a co-owner , in an undivided Khata, does not become a co-sharer in that Khata." The said ratio laid down by the august Supreme Court of Pakistan was also followed by the Supreme Court of Azad Jamu and Kashmir in case law " Mustafa Khan v . Muhammad Khan and another (PLD (sic) SC (AJ&K) 75"
14. Astonishingly the plaintif fs themselves had sold certain houses in full, out of the fifteen (15) houses jointly held by them with the legal heirs of Ex-Ruler to other persons without the consent of the legal ,heirs of the Ex-Ruler , this fact has been admitted by the attorney of the plaintif fs. Akbar Ali while appearing as PW-2 in his cross-examination had admitted that four (4) houses out of aforesaid 15 houses were sold by the plaintif fs to one Iqbal, resident of Saidu Sharif, legal heirs of Fazal Din and sister of Qasim Gul, whereas the plaintif fs have themselves occupied two houses.
15. Therefore, it does not lie from the mouth of the plaintif fs to challenge the impugned transaction. Indeed the plaintif fs have approached the Court with sullied hands. The impugned transaction in favour of the defendants/respondents is factually and legally correct. Hence, the impugned judgment and decree of the appellate Court dismissing the suit of the plaintif fs is based on correct appreciation of law and evidence, which do not call for interference. Resultantly , the present petition is dismissed being devoid of any merit.