ANW AAR HUSSAIN, J.--- One Manzoor-ul-Haq, predecessor-in-interest of respondents Nos. 1(a) to 1(d) ("the respondents "), instituted a suit for declaration,, bearing Civil Suit No. 754 ("respondents' suit"), against one Ghulam Muhammad, predecessor-in-interest of the petitioners and respondents Nos.2 and 3, on 18.02.1996 with the prayer to declare the sale deed, bearin g document No. 14568, Bahi No. 1, Volume No. 2441, dated 03.09.1986 , ("the Impugned Sale Deed "), in respect of the land measuring 10 Kanals 15 Marlas, situated in Mauza Ganja Kalan, Tehsil Lahore City, Lahore (" the suit property "), executed in his favour by one Mst. Sarwat Ara ("respondent No.2 "), through her real son Haroon Alauddin as her attorney ("respondent No.3 "), as ineffective, illegal, void, based on fraud and misrepresentation since respondent No.2 had only 05 Kanals 15 Marlas in the said khata , which too she sold in favour of one Taj Din. The plaint of respondents' suit further avers that the suit property in fact is in ownership and possession of the said Manzoor-ul-Haq by virtue of Sale Deed bearing document No. 1083 dated 03.02.1988 ("Respondents' Sale Deed "), executed by his wife Mst. Tallat Begum /respondent No.1(a), since deceased and represented by respondents No. 1(b) to (d) who had inherited the suit property , which clearly shows that the same had been sold to the said Manzoor-ul-Haq. During the pendency of the First Suit, predecessor-in-interest of the petitioners , on 15.10.1997, instituted a separate suit for possession bearing No. 402/1 ("the petitioners' suit") against Manzoor-ul-Haq and his wife Mst. Tallat Begum (late). The predecessor-in- interest of the petitioners in his suit sough t possession of the suit property on the basis of the Impugned Sale Deed with assertion that the same is prior in time. Both the suits were contested by the respective parties by filing written statements and out of the divergent pleadings of the parties, following consolidated issues were framed as reflected in Impugned Consolidated Judgment of the appellate court below:
1. Whether the plaintif f has no cause of action and the suit is liable to be dismissed? OPD
2. Whether the suit is not maintainable in its present form? OPD
3. Whether the court fee is deficient and the suit is liable to be dismissed under Order VII, Rule 1 1, C.P .C.? OPD
4. Whether the suit is frivolous, false and vexatious, if so, its ef fect? OPD
5. Whether the sale deed bearing No. 1083 dated 3.2.88 executed in favour of the plaintif f is based on fraud and forgery and, same is liable to be cancelled? OPP Whether the plaintif f is entitled to the relief as prayed for and the document in question No. 14568 Bahi No. 1, Volume No 2441 dated 3.9.1986 is liable to be declared as void based on misrepre sentation and fraud etc, if so its effect? OPP 6A. If issue No. 6 is not proved, then whether Haji Ghulam Muhammad is entitled to obtain a decree for possession as prayed in his plaint? OPP
7. Relief.
The parties led their respective evidence where after vide consolidated judgmen t dated 06.10.2006, the learned trial court decreed the respondents' suit and declared the Impugned Sale Deed as void, bogus and fraudulent and as natural corollary of the same, the petitioners' suit for possession was dismissed. The petitioners filed two appeals No. 23/06 and 24/06 before the Additional District Judge, Lahore, which stood dismissed, vide consolidated judgment and decree dated 06.01.2009. Feeling aggrieved and dissatisfied, the petitioners filed two Civil Revisions, bearing No. 781/10 and 769/10, before this Court. Civil Revision No. 781/2010 was continuity of the petitioners' suit filed by their predecessor -in-interest; however , the same has been dismissed as not pressed, vide order dated 16.02.2015, whereas the present Civil Revision is being contested qua the challenge thrown to the Impugned Sale Deed by the respondents, leaving the present Civil Revision in the arena to be adjudicated upon.
2. Learned counsel for the petitioners hurls challenge to the concurrent findings on the ground that the learned courts below have fallen in error inasmuch as that the Impugned Sale Deed of the petitioners has been declared to be fraudulent and bogus merely on the basis of the Chaant (URDU TEXT ) prepared by the patwari, which is not a legal document. Further submits that the Impugned Sale Deed has been cancelled simply because khasra No. 391 in the joint khata No. 605 in both the sale deeds happens to be the same. It is the case of the petitioners that since the property , which is subject matter of both the sale deeds throughout has been joint and no partition was carried out in that regard between the present or the previous owners of the said prope rty, therefore, even if particular khasra numbers have been mentioned in the Respondents' Sale Deed, the said respondents along with the petitioners are joint owners in the same khata and will be only entitled to their respective shares as per their title documents after the partition is effected in accordance with law. Further avers that in the present case, the learned courts below have erred in not appreciating this aspect of the case and through the Impugned Judgments have wrongly decreed the suit of the respondents by declaring the Impugned Sale Deed as void, fraudulent and bogus in totality . It is also the case of the petitioners that the Impugned Sale Deed is prior in time and therefore, they are on better footing as compared to respondent No. 1. Adds that the predecessor-in-interest of the petitioners purchased property from respondent No.2 who is close relative of Mst. Begum (wife of Manzoor-ul-Haq and vendor of the Respondents Sale Deed), therefore, in connivance with each other , particular khasra numbers have been inserted in the Respondent's Sale Deed dated 03-02-1988. Lastly , submits that the respondents' suit was defective as the same had been filed to get the sale deed of the petitioners declared void fraudule nt and bogus instead of seeking declaration of the genuineness of their own title and possession on the basis of the sale deed executed in their favour .
3. Conversely , learned counsel for the respondents while supporting the Impugned Consolidated Judgments of the courts below submits that concurrent findings of facts cannot be interfered with in the revisional jurisdiction. Adds that since the Impugned Sale Deed was executed by respondent No. 3 who is real son of respondent No.2 and also her general attorney and the same is in excess of latter's share in khata No. 605 as evident from the Chaant prepared by the revenue department, hence, it is evident that the Impugned Sale Deed is not sustainable in the eye of law even if it is prior to the Respondent s' Sale Deed and that the respondent No.2 also sold her legal share of 05 Kanals 15 Marlas to Taj Din, vide sale deed dated 16.12.1986. Therefore, the present Civil Revision merits dismissal.
4. Arguments heard. Record perused.
5. Perusal of the record reveals that the Respondents' Sale Deed was not challenged by the petitioners rather the possession was prayed for in the petitioners' suit and a generalized prayer for declaring any document as ineffective was made in the following manner: "It is, therefore, respectfully prayed that a judgment and decree in favour of the present plaintif fs and against the defendant be kindly passed for the possession to be made over to the present plaintif fs of the said property by declaring that the plaintif fs are the exclusive owners of the same. In case there is any document with the defendant with respect to the disputed property , the same may kindly be declared to be ineffective, conferring no right with regard to the disputed property and nullity in the eye of law ." (emphasis supplied), Thus, neither any challenge to the Respondents' Sale Deed is in the legal arena at the moment nor their possession of specific khasra number is under any challenge currently considering the withdrawal of connecting Civil Revision, filed by the petitioners, bearing C.R. No. 781/10. Concomitantly , though the above quoted issues have been framed by the learned trial court after mapping and measuring the circumference of dispute between the parties; at the moment, issue No. 6 clutches the entire and quintessential aspect of the controversy between the parties, inter se, which calls for adjudication. Learned trial court as well as the appellate court below have decreed the respondent's suit, relevant portion from the Impugned Consolidated Judgment of learned appellate court reads as under: "Admittedly , a co-sharer is owner of every inch of joint property until it is partitioned and he can sell his share but not any specific khasra unless his possession thereupon is established. Documents on record do not reveal possession of Mst. Sarwat Ara upon khasra No.391, therefore she was not entitled to sell land from this number . It is hence established from the record that Mst. Sarwat Ara sold land to deceased Ghulam Muhammad beyond her entitlement from the Khasra which was not in her possession. Appellants cannot be held entitled even to the land sold out by Mst. Sarwat Ara in favour of Taj Din as the land sold out to him was form khasra No.399. Evidence on record fully establishes the version of respondent. Appellants may, however , claim compensation from Mst. Sarwat Ara, if so advised." (emphasis supplied)
6. Therefore, the moot points that emerges from the above discussion are as under: i. Where does the vendee of a specific khasra in a joint khata stand when the khata comprising of said khasra is undivided and no partition has taken place? h. What is the status of the Chaant prepared by the revenue department on the basis of which the learned courts below decreed the respondents' suit and reached the conclusion that vendor of the Impugned Sale Deed has sold land in excess of her share in the khata No. 605? iii. Whether the sale deeds of two vendees by two different vendors in a joint khata to the extent of respective shares of dif ferent vendors are mutually exclusive?
Admittedly , the suit property in ownership and possession of respondents No.1(b) to 1(d), as well as claim of the petitioners on the basis of the Impugned Sale Deed executed in favour of the petitioners by respondent No.2, relates to the land measuring 10 Kanals 15 Marlas falling in khasra No. 391 in a joint khata No.605. It is also admitted fact that in between the Impugned Sale Deed as well as the Respondents' Sale Deed, referred above lies another sale deed No. 11909 dated 16.12.1986 for the land measuring 05 Kanals 15 Marlas in khasra No. 399 in the same joint khata No.605, executed by respondent No.2 in favour of one Taj Din who is to be found nowhere in the instant litigious canvass as he has not been arrayed as party in the suits instituted by either of the contesting parties. The share of Mst. Tallat' Begum (late), in the joint khata No: 605 to the extent of 10 Kanals 15 Marlas is not denied more so when the connected CR No. 781/10 has been withdrawn as not pressed. Hence, the issue left for analyzing and adjudicating is the entitlement of respondent No.2, vendee of both the Impugned Sale Deed as well as sale deed dated 16.12.1986 in favour of Taj Din. It is in this regard, that the learned courts below have held that the entitlement of respondents Nos.2 to the extent of sale of land measuring 10 Kanals 15 Marlas in favour of the predecessor-in-interest of the petitioners in the joint khata No. 605 is not proved or at least established through the record, since respondent No.2, as per the Chaant produced by the Patwari (PW-2), had her share only to the extent of 05 Kanals and 10 Marlas in the entire khata. From perusal of record as well as during the course of arguments, it is also an admitted position that khata No. 605 is still joint and khasra Nos. 391, 396 and 399 falls within the said joint khata. It is also evident that the predecessor-in-interest of the petitioners purchased land measuring 10 Kanals 15 Marlas from respondent No. 2 through respondent No. 3 (her real son), as her attorney , vide Impugned Sale Deed, which is a registered document. On the other hand, respondent No.2 (the vendee of the petitioners), as per the Chaant , was owner of only 05 Kanals 15 Marlas . Ironically enough, the reading of the sale deed executed by respondent No. 2 in favour of Taj Din pertains to khasra No. 399 and the said sale deed spells out that respondent No.2's share in joint khata No. 605 lies in khasra No. 399 to the extent of 05 Kanals 15 Marlas .
There is no cavil to the position and it is well-coalesced law that a co-sharer cannot sell or alienate more than and/or in excess of his share in the, joint holding. The august Supreme Court of Pakistan in Rab Nawaz and others v. Akbar Ali and others (1989 SCMR 93) held in unequivocal manner that a co-sharer is not entitled to alienate more than his share in the joint holding. Moreover , PW-2/Syed Zahoor F Tahir, Halqa Patwari also stated that as per revenue record, Respondent No. 2 owned 2533/196608 share, which became 05 Kanals and 15 Marlas . The petitioners failed to establish by any means that respondent No. 2 owned more than 05 Kanals 15 Marlas . On the other hand, the chain of the title of predecessor-in-interest of respondents is established to the extent of ownership of 10 Kanals 15 Marlas in khata No. 605 since he purchased the subject property from his wife who admittedly owned and possessed the same on the basis of inheritance. Judgment of the apex Court reported as Muhammad Muzaf far Khan v. Muhammad Yusuf Khan (PLD 1959 SC (Pak) 9) is referred in this regard, wherein it was held as under: "The vendee of a 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 its 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."
Therefore, the sale deeds of two vendees by two different vendors in a joint khata to the extent of shares of their respective vendors are not necessarily and invariably mutually exclusive rather the vendees step into the shoes of their vendors respectively and become so-sharer .
7. The issue could be seen through another prism i.e., possession of the suit property . The predecessor-in-interest of the petitioners purported to purchase the suit property through the Impugned Sale Deed whereas predecessor- in-interest of respondents No.1(b) to 1(d) purchased the same through Respondents' Sale Deed (dated 03-02- 1988) and the possession of the same lies with them, which is fortified by the fact that the predecessor-in-interest of the petitioners himself filed Civil Suit No. 402/1 for possession against the predecessor-in-interest of the respondents, which was dismissed by the learned trial court through Impugned Consolidated Judgment and the appeal there against also met the same fate and the connected civil revision filed in this regards has been withdrawn, thus, there is no cloud or challenge to the ownership and possession of the respondents qua suit property and the above discussion leads to the conclusion that the predecessor-in-interest of the respondents was rightfully in possession of khasra No. 391.
8. The petitioners' counsel has laid much stress that since the Impugned Sale Deed was prior in time and the Respondents' Sale Deed is later in time, therefore, the latter sale deed is of no legal effect. There is no cavil to the proposition that sale deed prior in time would have held the field and taken precedence over the sale deed, which is later in time. However , in the instant case, the petitioners seem to have misco nstrued the issue involved. It is well-coalesced law that no one can transfer a better title than he himself holds and in the instant case, the title, to be H precise, to the extent of land under entitlement of the purported vendee of the predecessor-in-interest of the petitioners is under dark clouds, which the beneficiary is bound to prove through positive evidence.
9. Learned counsel for the petitioners argued with much vehemence that the Chaant cannot be premised for declaring a sale deed unlawful and illegal. Suffice to state that this Court in Masood Rahim and 7 others v. Abdul Majeed and 9 others (2009 MLD 106 (Lahore) has, on the basis of the Chaant prepared by revenue authorities in the said case, held the sale/alienation, in excess of share in joint holding, as void and unlawful and liable to be cancelled. The Chaant is prepared by a Halqa Patwari, who works in one or more Patwar circle by maintaining various registers including Register Daakhil Kharij (intqalaat), which primarily is the transfer record in a patwar circle that archives all land transactions. Said register is record of the total quantity of land a seller owns in a khata , the exact area of the land sold by the seller from that khata and also the area of land the seller is left with after a transaction takes place in that khata . It is on the basis of this Register Daakhil Kharij (inteqalaat) that a Chaant is prepared, as a part of practice, so as to ascertain the exact status of transactions , which a seller made in his entire khata . Perusal of the Chaant prepared in fact enables the third parties to understand and examine the status of share of a person in a khata before dealing with the same and hence, cannot be termed as something in violation of any provision of law .
10. Another ground urged by learned Counsel for the petitioners to pierce through the legality of the Impugned Judgments is that both the courts below erred in not granting the compensation as an alternate for which learned counsel of the petitioners placed reliance upon Section 19, 38 and 41 of Specific Relief Act, 1877, which is an altogether misplaced assertion. This has never been pleaded and prayed for by the predecessor-in-interest of the petitioners in his suit. Therefore, no question of the same arises. Even otherwise, the question of payment of compensation to the petitioners by respo ndents No. 1(b) to 1(d) does not arise as the petitioners as legal heirs of Ghulam Muhammad can resort to legal course only against respondent No. 2 or her attorney who executed the petitioners' sale deed even though she had no title in excess of 05 Kanals and 15 Marlas in khata No. 605.
11. Despite the fact that the above discussion weakens the case of the petitioners in terms of their claim qua khasra No. 391 in the joint khata No. 605 and the petitioners have not been able to establish as to the ownership of their vendee (respondent No.2) to the extent of more than 05 Kanals 15 Marlas in khata No. 605; however , this takes me to the kernel of the matter as to whether the Impugned Sale Deed in its entirety can be declared as ineffective, void and fraudulent depriving the petitioners to even lay their claim to the extent of the admitted shared of 05 Kanals and 15 Marlas of their vendee i.e., respondent No.2 in the joint khata partition whereof has admittedly not taken place. The learned courts below have erred in not appreciating that the vendee of the petitioners i.e., respondent No.2 did own land measurin g 05 Kanals and 15 Marlas in the joint khata No. 605 and in respect whereof an anomalous situation exists among the petitioners, their vendee (respondent No.2) and Taj Din inasmuch as that while share of respondent No. 2, as per the Chaant , is only 05 Kanals 15 Marlas and she sold land measuring 05 Kanals 10 Marlas to Taj Din; however , prior to that she had already executed Impugned Sale Deed in favour of the petitioners to the extent of 10 Kanals 15 Marlas in the said joint khata No. 605. Having spelled out as above, it is evident that the issue whether respondent No.2 could have sold land beyond and above her share in joint khata or not and the effect of such alienation can neither be determined nor adjudicated upon in the instant proceedings in the absence of Taj Din, who is not party to the proceedings to whom respondent No.2 sold 05 Kanals and 15 Marlas . Therefore, in the absence of any party , no adverse order can be passed as this would negate the principle of natural justice duly embedded under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. Even other wise, this factual aspect needs to be determined through recording of evidence.
12. In view of the above discussion, base d on analysis of the record, it is prima facie evident that there is no cloud as to the ownership and possession of the respondents in khata No. 605. Similarly , no order can L be passed against one Taj Din in whose favour respondent No.2 transferred her share in khata No.605, after execution of the Impugned Sale Deed in favour of the predecessor in-interest of the petitioners; but the learned courts below have erred and have failed to consider that the Impugned Sale Deed as well as the Respondents' Sale Deed were executed by two different vendees in a joint khata , though mentioning same khasra numbers and this fact alone does not render both the sale deeds mutually destructive as the petitioners and respondents have been considering it. Rather , it lies between the petitioners, vendee of the predecessor-in-interest of the petitioners, and Taj Din to fight it out and not between the petitioners and the respondents as both the petitioners and the respondents have purchased the land from two different vendees in a joint khata wherein no specific khasra numbers could have been sold till the time partition was effected and respective vendees could have come into possession of specific khasras. There is also no cavil to the proposition that any transfer out of joint khata even with regard to a specific khasra numbers is always subject to final adjustment by way of partition. Reference is made to Munawar Hussain and others v. Amanat Ali and others (PLD 2007 Lah. 83). Therefore, it is legally anomalous that the Impugned Sale Deed has been thrown under the dust of illegality without considering or determining the issue at least to the extent of the admitted legal share of vendee of the predecessor-in-interest of the N petitioners and Taj Din i.e., 05 Kanals and 15 Marlas and the effect of the two sale deeds executed in favour of the petitioners and/or one in favour of Taj Din in addition to compensation, if any, to any aggrieved party therefrom. As the said issues were neither raised nor could have been raised in the respondents' suit and that too in the absence of Taj Din, the perplexing point resulting in such anomalous position finds its traces back to the form of the suit and the relief granted by the courts below regarding which it is impera tive to have a discussion at this juncture.
13. Predecessor-in-interest of the respondents filed suit for declaration with respect to the Impugned Sale Deed to get it declared illegal rather than getting declared and affirmed his own title and possession vested in them through Respondents' Sale Deed. The Impugned Sale Deed was not such insuperable and insurmountable obstacle or hindrance that the predecessor-in-interes t of the respondents instituted the suit for seeking declaratory decree that the Impugned Sale Deed was null and void, altogether . Here it is worth mentio ning that an instrument can be declared void and its cancellation can be prayed under Section 39 of the Specifi c Relief Act, 1877 ("Act 1877 "), which is reproduced as under: "When cancellation may be ordered.- Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury , may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
If the instrument has been registered under the Registration Act, the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation."
Whereas suit for declaration is filed under Section 42 of the Act, 1877, which is reproduced as under: "Discretion of Court as to declaration of status or right. Bar to such declaration .- Any. person entitled to any legal character , or to any right as to any property , may institute a suit against any person denying, or interested to deny , his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintif f need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintif f, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.- A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee".
In Sukh Lal and others v . Devi Lal and others (AIR 1954 Rajasthan 170) , it was held as under: "(6) There is a difference between a suit for the cancellation of an instrument and one for a declaration that the instrument is not binding on the plaintif f. When the plaintif f seeks to establish a title in himself and cannot establish that title without removing an insuperable obstacle such as a decree or a deed to which he has been a party or by which he is otherwise bound then quite clearly he must get that decree or deed cancelled or declared void in toto and his suit is in substance a suit for the cancellation of the decree or deed notwithstanding the fact that the suit may have been framed as a suit for a declaration. On the other hand, when the plaintiff is seeking to establish a title and finds himself threatened by a decree or a transaction between third parties, he is not in a position to get that decree or deed cancelled in tow. The proper remedy in such a case is to get a declaration that the decree or deed is invalid so far as he himself is concerned, and therefore, he may sue for a declaration to that effect and not for the cancellation of the decree or the deed." (emphasis supplied)
Similarly , Full Bench of the Madras High Court in Muppudathi Pillai v. Krishnaswami Pillai and others (AIR 1960 Madras 1 (FB) , held in para 14, as under: " It stands to reason the executant of the document should be either the plaintif f or a person who can in certain circumstances bind him. It is only then it could be said that the instrument is voidable by or void against him. The second aspect of the matter emphasizes that principle. For there can be no apprehension if a mere third party , asserting a hostile title creates a document. Thus relief under Section 39 would be granted only in respect of an instrument likely to affect the title of the plaintiff and not of an instrument executed by a stranger to that title".
(emphasis supplied)
In Debi Prasad and others v. Smt. Maika and others (AIR 1972 Allahabad 376) referred the Full Bench judgment in Mupudathi Pillai supra and reached the same conclusion.
This view is further fortified by a recent judgment of the august Supreme Court of Pakistan reported as Anjuman-e- Khuddam-ul-Qur'an, Faisalabad through President Qur'an Academy v. Lt. Col (R) Najam Hameed and 3 others (PLD 2020 SC 390), in which the august Court held that a suit for cancellation of an instrument by a third party , which is not executant of the instrument is not maintainable. It has been held that proper remedy in such like case is a suit for declaration.
14. Before concluding the opinion of this Court in the present case, it is pertinent to address the preliminary objection on behalf of the respondents that findings of the courts below are concurrent, which cannot be interfered in the exercise of revisional jurisdiction. The contention of learned counsel for the respondents is misplaced. While as a general rule, this Court has avoided interference into concurrent findings of courts below in the exercise of revisional jurisdiction, but this is not a legally impervious position rather concurrent findings can be interfered and pierced through if they are found to be perverse and result of non-reading and/or misreading. Reference is made to Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others (2016 SCMR 24) and Muhammad Nawaz alias Nawaza and others v . Member Judicial Board of Revenue and others ( 2014 SCMR 914 ).
15. In light of the above referred discuss ion, the present Civil Revision is allowed and the concurrent findings of the courts below in terms of Impugned Consolidated Judgments to the extent of declaring the Impugned Sale Deed bearing No.14568 as void, bogus and fraudulent are set aside with the clarification that the Impugned Sale Deed does not operate against or otherwise affects the right of the respondents qua the suit property by virtue of the Respondents' Sale Deed dated 03.02.1988.