MUHAMMAD NAEEM ANW AR, J.- The petitioners, through this revision petition, have challenged the judgment and decree of learned Additional District Judge-II, Peshawar dated 29.10.20 16, whereby their appeal was dismissed and judgment and decree of learned Civil Judge-XXVI, Peshawar dated 26.1 1.2013 was upheld.
2. Prominent facts are that respondent No.1, had instituted a suit for declaration, recovery of possession through partition and for perpetual injunction against petitioners and others, regarding the property, as properly mentioned in the heading of the plaint. Suit was contested by petitioners and respondent No.34 by their joint written statement, whereby they have taken many legal & factual objections. Learned trial court, after recording of evidence, had decreed the suit of respondent No.1, as prayed for by her, in plaint. Petitioners have assailed the judgment & decree of learned trial court before the learned appellate court, which maintained the judgment & decree challenged before it except a modification for preliminary decree in relief for recovery of possession through partition, instead of final decree. Petitioners still dis- satisfied, have filed revision petition before this court.
3. Learned counsel for petitioners at the very outset raised a preliminary objection to the maintainability of the suit of respondent No.1, with a plea that respondent No.1 had not impleaded all the co-sharers of the disputed property and also added that suit was instituted against some of dead persons, whose legal heirs were not impleaded in the plaint. He also contended that, the petitioners have raised this objection before the learned trial court, but the learned trial court dismissed the same application, he prayed that suit may be remanded to the learned trial court for decision afresh. In support of his contentions, he relied on 1986 CLC 1706 , 2004 CLC 668 and 2017 CLC 382 .
4. Learned counsel for respondents, in respect of preliminary objection, argued that before the learned trial court when the petitioners have submitted the application for impleadment of the legal heirs of dead person (arrayed as defendants), the respondents requested through their reply that if any one of the defendant is dead regarding whom the petitioners have knowledge, the list of their legal heirs may be placed on record, but since 2013 till now no such list has ever been placed on file.
5. With the able assistance of learned counsel for the parties record was gone through.
6. Worthy counsel for petitioners referre d inheritance mutation No.5691 dated 03.09.2010, mutation No.5835 of "Mst.Muntazira" dated 03.05.201 1, mutat ion No.5877 dated 27.05.201 1, extract from record of right for the year 2008-2009 of khasra No.2151, 382 and stressed that "Naik Muhammad" and "Mst.Bas Bibi" are dead, the legal heirs of above mentioned co-sharers were not arrayed as party .
7. Record transpires that suit was instituted on 01.06.2010, whereas mutation No.5691 was entered on 17.08.2010 and attested on 03.09.2010, mutation Nos.5835 & 5877 were attested on 03.05.2011, 27.05.2011, respectively much after attestation of institution of suit. Naik Muhammad had transferred his shares in the suit property in favour of Fida Muhammad through mutation No.5505 dated 01.12.2009, Mst.Moroosa was succeeded by son's of Safdar Khan, Fida Muhammad & sons of Safdar Khan are party to the suit. Insofar as the transfer of property by Mst.Muntazira and legal heirs of Ghufran is concerned, both the transfers are in respect of column of cultivation, former pertains to khasra No.2059 and the transfer effected through mutation No.5835 dated 03.05.2011, whereas the latter through mutation No.5794 dated 28.01.2011. The vendees of both the mutations are not parties to the suit. Though the vendees of both the mutations mentioned above themselves had not taken any such plea, however, as the appellant alleged that they (vendees of column of cultivation) should have been made party to the suit, therefore, this requires consideration. The question as to whether the vendee/purchaser of column of cultivation shall be equated with that of column of ownership with reference to their status of joint owner. The apex court in case titled Raza Khan through legal heirs and 3 others Versus. Member Board of Revenue N.W.F.P., Peshawar and others reported in 1999 SCMR 873 has held that:- "We are not inclined to the view that the appellants had any interest in the partition-proceedings regarding the land in dispute. The learned Additional Commissioner was of the considered view that an application under section 135 of the Land Revenue Act could be filed only by a joint owner against the other joint-owners and that where there is no joint land no application for its partition is competent. As the present appellants were not possessed of the requisite locus, there is no need to determine whether procedure of service was according to law or not".
8. Viewing the aforementioned discussion, the transfer of property either through inheritance mutation or sale shall be subject to the principles of Section 52 of Transfer of Property Act, 1982, i.e. lis pendence.
9. Thus, from the above discussion, vendees of mutation Nos.5835 and 5794 are not necessary party for the purpose of partition of suit property, whereas the transferees of rest of the mutation, as mentioned above, are already party to the suit, hence the judgments relied upon by the learned counsel for petitioners are not applicable to the matter in hand as such the preliminary objection of the learned counsel for petitioners is overruled.
10. Now dilating to the merit of the case, learned counsel for petitioners added that plaintiff/respondent No.1 has not been able to substantiate her case by convincing and cogent evidence. Moreso, the plaintiff/ respondent No.1 has already sold in excess of her share from khasra Nos.352 & 2071.
11. Learned counsel for respondent No.1 contended that suit for partition is in respect of entire holding of respondent No.1 with petitioners and others co-sharer and also maintained that petitioner No.1 appeared as special attorney for petitioner No.2, whose statement was recorded as DW1 before trial court, in his cross-examination categorically replied that "if the suit decrees he will not object it", so now he cannot object the decree, when revenue record favours respondents.
12. As the suit pertains to partition of property of entire holding, thus, the total entitle ment of respondent No.1 would be determined at the time of final decree under the provision of "Partition Act, 1893" read with the provision of the Code of Civil Procedure, 1908. Most significant aspect of the case is the "Goshwara Milkiyat" of plaintiff/respondent No.1, which is Ex.PW1/9, which shows her proprietorship as 23/4 marla, after deducting the excess sale in two khasra Nos.325, 2071, for which the plaintiff/respondent No.1 is entitled for its recovery of possession through partition. The findings of both the learned courts below on facts and question of law were concurrent, no misreading of non-reading of evidence was pointed out by the learned counsel for petitioners. Where findings of trial court and lower appellate court were concurrent, how erroneous those findings could be, could not be interfered with by the High Court in exercise of its revisional jurisdiction under section 115 C.P.C., unless such findings suffered from jurisdictional defect, reliance is placed on 2007 SCMR 870 (e), 2009 SCMR 286 and PLD 2005 SC 418.
13. In the light of what has been discussed above, this revision petition stands dismissed with no order as to cost.