' Muhammad Iqbal, appellant who purchased the land and an house in dispute from Mst. Bi and others through sale-deed, dated December 1, 1982. Filed this appeal against the order of District Judge, Kotli, dated November 24, 084, whereby it was declared that Mst. Bi and others (vendors), were not entitled to alienate this property through sale-deed, dated December, 1, 1982 as the sale was in excess of their legal share, whereas Mst. Shah Begum and another (appellants) challenged the same order of the learned District Judge, Kotli, whereby their appeal was dismissed on the ground that they did not seek relief for possession of the house, therefore, they were not entitled to the grant of the declaration.
2. As both the above-titled appeals have arisen out of the same order of the learned District Judge, therefore, I propose to dispose of these two appeals through this single order.
3. The brief facts which gave rise to these appeals are that Mst. Bi, widow, Mst. Khaieda, Mst. Zahida and Mst. Azrah, daughters of Allah Dad, sold a piece of land measuring 10 Marlas with an house, Verandah, Bandi and a courtyard, situate in village Kurd, Tehsil Kotli tor a sum of Rs, 60,000 through sale-deed, dated December 1, 1982 in favour of Muhammad Iqbal, appellant and Mst. Shah Begum and Mst. Sultan Begum filed a declaratory suit on December, 12, 1982, in the Court of Sub-Judge, Kotli and challenged the competency of the vendors to sell the land and the house. It was prayed that the plaintiffs were joint owners of the land and house and were in possession of it to the extent of their share and Mst. Bi and others (vendors), were not competent to sell it, therefore, Muhammad Iqbal, vendee might be restrained from dispossessing them from the said property.
4. The vendee, through written statement dated February 6, 1983, denied the claim of Mst Shah Begum and another (plaintiffs) and stated that the land and the house in dispute fell into the share of the vendors and the plaintiffs had no interest in it. It was further claimed that the vendee effected improvements to the tune of Rs, 50,000 on the suit land and if the Court came to the conclusion that the vendors were not competent to sell the entire land and the house, the cost of improvements effected thereon, might be granted to him.
5. The learned Sub-Judge settled the issues on February 23, 1983 and after hearing the parties, dismissed the suit through order, dated December 7, 1983.
6. Mst. Shah Begum and another (plaintiffs) felt aggrieved of the aforesaid order of the learned Sub-Judge and filed an appeal in the Court of District Judge, Kotli who, vide his order dated November 24, 1984, found that Mst. Bi and others (vendors) were not entitled to sell the entire land and the house because Mst. Shah Begum and Sultan Begum were also co-sharers in it and the sale made by the vendors was beyond their competency but he refused to vacate the decree passed by the learned Sub-Judge and grant a decree in favour of Mst. Shah Begum and Sultan Begum (plaintiffs) on the ground that they were not in possession of the house and in spite of it, they did not seek the decree for possession as a consequential relief, therefore, their suit was hit by the mischief of section 42, Specific Relief Act and this order of the learned District Judge, Kotli has been called in question by Muhammad Iqbal vendee as well as Mst. Shah Begum and Sultan Begum, plaintiffs through the present two appeals.
7. The learned counsel for the appellants (Muhammad Iqbal and others) defendants assailed the order of the learned District Judge and argued that the land and the house was in possession of the vendors who were fully competent to sell it. Elaborating his point of view, he stated that the house stood contstructed over the land comprising survey number 1147 (10 Marlas) Khewat No, 53, Khata No, 157, situate in village Kurti and the total acreage of this Khewat was 40 Kanals and 10 Marlas and out of it, Mst. Bi, widow of Allah Dad and Mst. Zahida. Mst. Khaleda and Mst. Azrah, daughters of Allah Dad (vendors) held 17/24 share, whereas Mst. Shah Begum and Sultan Begum held only 7/24 share, therefore, the vendors' share was more than 28 Kanals in this Khewat and the land sold, was only 10 Matlas which was within their share, thus the sale was quite legal and the dictum of the learned District Judge that the vendors were not competent to alienate this land and the house, was incorrect. He, in order to support his contention, relied on an authority reported in PLD 1978 SC (AJK) 75 and prayed that the findings of the learned District Judge that the sale made by Mst. Bi and others, was beyond their competency might be vacated. He further emphasized that Mst. Shah Begum and Sultan Begum filed a suit to seek declaration that the sale made by Mst. Bi and others, whereby the land and house comprising survey No, 1 47 was sold to Muhammad Iqbal, was illegal and was beyond their competency but although they were not in possession of the suit land, yet they did not pray for possession or joint possession, therefore, their suit on the authority of section 42, Specific Relief Act, was rightly dismissed by the learned District Judge and to support his point view, he referred to a case reported in PLD 1963 Dacca 115.
8. The learned counsel for Mst. Shah Begum and Sultan Begum on the other hand, took the stand that the land and the house sold, were in possession of the vendors as well as Mst. Shah Begum and Sultan Begum, plaintiffs as such Mst Bi and others (vendors) were not entitled to sell whole of it.
He pointed out that the principle laid down in the authority cited by the learned counsel for Muhammad Iqbal, vendee and reported in PLD 1978 SC (AJK) 75, was not applicable here. It was laid down in the said case that a person who was in exclusive possession of a specific portion of the joint property, could alienate it, provided it was within his overall share in the Khewat, wherein the said land was recorded In the present case, he stated, the position was quite different. Here in this case, the land might be within the overall share of Mst. Bi and others which they held in Khewat No, 53, yet as they were not in exclusive possession of the property sold, therefore, the sale was bad and the principle enunciated in the above, cited case, was not applicable in this case. He referred to the copy of Misl-e-Haqiat for the year 1970-71 which was filed by Muhammad Iqbal defendant- appellant and stated that the findings given by the learned District Judge, Kotli on this point were perfectly correct.
9. To take up the point that Mst. Shah Begum and Sultan Begum who were in possession of the land and the house, did not seek the relief of possession by way of consequential relief, therefore, their suit was bad in the eye of law, he argued that the view formulated by the Court below, was not correct. Mst Shah Begum and Sultan Begum were, in fact, in possession of one room of the house at the time of sale and when the suit was instituted and by highhandedness, Muhammad Iqbal, vendee taking undue advantage of the weakness of the plaintiffs who were women-, ejected them, as such the mischief of section 42, Specific Relief Act, would not stand in their way. He said that a relief to which a person is entitled, on the basis of title, cannot be denied to him due to the technical defects and technicalities are never allowed to stand in the way of administration of justice. It was fully proved, he stated, even from the documents filed by the vendee, that the house and the land was in joint possession of M t. Bi and others (vendors) and Mst. Shah Begum and Sultan Begum, plaintiffs; therfore, the vendors were not competent to alienate the entire house and the land. In this case, it was the duty of the Court below to grant the decree, in spite of the fact that Mst. Shah Begum and Sultan Begum did not seek the relief of possession and in order to substantiate his point of view, he referred to an authority reported in PLD 1971 SC 762. He also referred to an application for grant of amendment of the plaint, whereby it was prayed that the relief for grant of decree for possession as a consequential relief, may be allowed to be added in the plaint.
10. I have considered the arguments advanced by the learned counsel for the parties, gone through the record of the case minutely and have also perused the authorities cited by the learned counsel for the parties.
11. There are three points which are required to be resolved in these two appeals, namely :- (i)Whether Mst. Bi and others (vendors), who were not in exclusive possession of the entire land and the house in dispute, could transfer a good title to Muhammad Iqbal because the land sold was within their share when the whole land recorded in the aforesaid Khewat was kept in view ;
(ii) Mst Shah Begum and Sultan Begum who were the joint owners of the land and house, would not be granted a declaration prayed for, because they were not in possession of it and did not seek decree for possession as a consequential relief ; and
(iii) In case, Mst. Shah Begum and Sultan Begum succeeded in getting the declaration, how much cost of the improvements they would have to pay.
12. There is a finding by the learned District Judge that Mst. Bi and others (vendors) were not in exclusive possession of the property sold by them in favour of Muhammad lqbal through sale- deed, dated December 1, 1982 and this view is supported by the entries of record of rights i. e. `Misl- e-Haqiat' for the year 1970-71 and Khasra Girdawari for Kharif 1982 which show that Mst. Shah Begum and Sultan Begum were in joint possession of the property alongwith the vendors. The vendors' share was 17/24 and the share of Mst. Shah Begum and Sultan Begum was 7/24.
13. It is also in evidence and is admitted by one Mushtaq, D.W. That the house in dispute was in the ownership of Allah Dad and on his death, it fell to the share of his legal heirs. As Allah Dad left no male issue therefore, Mst. Shah Begum and Sultan Begum in the capacity of the deceased's sisters, would get 7/24 share in the land and the house and th rest of 17/24 share would go to Mst. Bi and others (vendors).
14. The vendee's claim is that the land and the house was in posses sion of the vendors as it fell to their share in partition proceedings but the factum of partition was not proved as there was no positive evidence in support of it. If for the sake of arguments, it was admitted that at the time of sale, the house in dispute was in possession of Mst. Bi, widow of Allah Dad, even then, the principle laid down in the judgment pronounced by the Azad Jammu and Kashmir Supreme Court in a case reported in PLD 1978 SC (AJK) 75, would not be applicable in the instant case because there was no other land in this Khewat which had construction of the like nature, so as to satisfy the claim of other co-sharers i. e. Mst. Sha Begum and Sultan Begum. The construction of the house was another factor which makes the land comprising Survey number 1147 to be mar valuable than the rest of the land. I think, the claim of Mst. Shah Begum and Sultan Begum that they are co-sharers of the land and the house and Mst. Bi and others (vendors), were not competent to alienate whole of it was correct.
14. The question whether a co-sharer in possession of a certain portion of joint land can convey a good title to another person came under consideration before the Allababad High Court in a case reported in (1885) All. 633, wherein it was held :- " The co-sharers in an undivided property may, by arrangement among themselves, take possession of definite portions of that property and hold them so as to enjoy their proper quota of the profits, but it is not permissible for any one of such co-sharers to alienate to a third person as his exclusive property the portion which he has been occupying by agreement with his co-sharers."
15. In AIR 1920 All. 111, it was held :- " The property is undivided and although the co-sharers may, by arrangement among themselves, take possession of definite portions of the joint property and hold them so as to enjoy their proper quota of the profits of the joint property it is not permissible for one co-sharer so in separate possession to alienate to a third person, as his own exclusive property, the portion which he has been occupying by agreement with his co-owners. Till partition takes place no co-sharer is entitled to say that he has an exclusive right to any particular portion of the joint property and to confer an exclusive right on a third party by alienation without the consent of all the co-owners."
16. In AIR 1928 All 59, it was observed :- " The right of co-owners to sole possession is a right which continues only so long as they possess themselves and such a right is consistent with the other co-sharers' title. If, however, the co-sharers transfer to a stranger, this amounts to an inconsistent title of their co-owners and is inconsistent with that title. Such a transfer gives the co-sharer a right to sue for a declaration that the transfer is invalid against them. It also gives them a right to sue for joint possession with the transferors and ejectment of a transferee ; for the transferee gets no title to possession by the transfer "
17. Was observed :- ..... Where one of the two or more co-sharers mortgages his undivided share in some of the properties held jointly by them, the mortgagee takes the security subject to the right of the other co-sharers to enforce a partition and thereby to convert what was an undivided share of the whole into a defined portion held in severalty. If the mortgage, therefore, is followed by a partition, and the mortgaged properties are allotted to the other co-sharers, they take those properties, in the absence of fraud, free from the mortgage and the mortgagee can proceed only against the properties allotted to the mortgagor in substitution of his undivided share."
18. In AIR 1935 All. 771, it was held :- "One of several co-sharers in an undivided Mahal cannot transfer to stranger lands held by him in severalty and if he does so, the other co-sharers are entitled to have the alienation set aside, to eject the transferees and to take joint possession with the transferors."
19. It was held in AIR 1936 All. 456 as under :- "A co-sharer in an undivided property cannot alienate any defined portion of such property even though he might have been in exclusive possession of the same by an agreement amongst the various co-sharers. It follows that if such an alienation is made the alienation is subject to the right of the other co-sharers to enforce a partition. If the mortgage. Is followed by a partition and the mortgaged properties are allotted to the other co sharers, they take those properties, in the absence of fraud, free from the mortgage, and the mortgagee can proceed against the properties allotted to the mortgagor in substitution of his undivided share."
20. I, therefore, hold that Mst. Bi and others (vendors) were not competent to sell whole of the property mentioned in para. 3 and the sale-deed, dated December 1, 1982 was valid to the extent of 17/24 share in the said property.
21. The next point that the plaintiffs' suit was bad as they did not pray for the decree for joint possession of the land, I think, was not correctly decided by the lower Court. It has been found that Mat. Bt and others (vendors) were not entitled to alienate whole of the suit property C as Mst. Shah Begum and Sultan Begum also held 7/24 share in it and in this view of the matter, they were entitled to get the declaration prayed for.
22. The mistakes of the person who drafted the pleadings should not be allowed to deprive the innocent and illiterate persons of their valuable rights who came to the Court with genuine claims.
"1 he procedural and technical defects should not be allowed to stand in the way of administration of justice and it is within the competency of the Courts to grant relief to the plaintiffs and ignore the technical defects.
23. In PLD 1963 SC (Pak.) 201 it was held as under "The question as to whether the suit was barred under section 42 of the Specific Relief Act now remains to be considered. It is admitted that the tenant judgment-debtor had succeeded in getting possession restored under subsection (8) of section 37-A of the Act before the ;Appellants instituted the suit out of which the present appeal arises.
' In the circumstances, the seeking of the relief by way of delivery of possession had become a necessary consequential relief which should have been claimed in their suit. Evidently this was not done to avoid the payment of ad valorem court-fee. Learned counsel appearing for the appellants, however, contends that his appeal should not fall on that ground alone if it succeeds on the other grounds, for, even this Court can permit him to amend his plaint and pay the necessary court-fees.
The land consisting of some 3 Acres, it is said, is a valuable piece of property and the appellants' claim thereto should not be defeated mainly on this technical ground."
24. The same point came up for consideration before the Supreme Court of Pakistan in a case reported in PLD 1971 SC 762 and it was observed :- "The contention of the learned counsel for the appellant that the suit could not fail merely by reason of the fact that the consequential relief by way of possession had not been claimed is not altogether without substance. If his suit was otherwise maintainable and he was otherwise entitled to the relief it was open to the Courts to allow him to amend the plaint by adding a prayer for possession and paying the appropriate ad valorem court-fees and then to grant him relief even though he had not specifically asked for it."
25. It was further held in a case reported in PLD 1965 Lah. 172 as under :- " It may as well be noticed that there is no obligation on the Court to dismiss a suit if it is bad under proviso to section 42 of the Specific Relief Act. Section 42 of the Act does not authorize the dismissal of a suit where the plaintiff being able to seek further relief than a mere declaration of title omits to do so. It only forbids the Court to make the declaration, the prayer for which is not coupled with a prayer for a consequential relief. A suit which is defective under section 42, should not, therefore, he dismissed for failure on the part of the plaintiff to pray for further relief and the Court should allow the plaintiff to amend the plaint. It is a settled rule of practice, not to dismiss suit for non- compliance of the provisions of section 42 but to allow the plaintiff necessary amendment."
26. 41st. Shah Begum and Sultan Begum appellants have moved an application for grant of amendment to the plaint and have sought permission to add the relief for grant of decree for possession in it. Muhammad Iqbal respondent opposed the application and stated that it was much belated and could not be allowed at this stage.
27. The applications for grant of permission to amend the pleading are dealt with under the provisions of Order VI, Rule 17, C. P. C. And the E Courts are empowered to allow the prayer if the cause of action and the nature of the suit or claim was not changed, irrespective of the fact that the prayer was made at the stage of last appeal.
28. In AIR 1921 P C 50, it was held :- "Where the plaintiffs, through some clumsy blundering, attempted to assert rings that they undoubtedly possessed under the statute in a form which the statute did not permit, they should be at liberty to express their intention in a plainer and less ambiguous manner, and to amend the plaint so as to express the rights which it has beep really their intention all along to establish, although the amendment of plaint is sought to be made at a time when the suit itself if instituted then would be time-barred. And though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which was accrued to him by lapse of time, yet there are cases where such considerations are out-weighed by the special circumstances of the case."
29. The Supreme Court in a case reported in PLD 1963 SC 191, while considering the application for grant of amendment of the plaint, observed as under - "The amendment prayed for does not seek to alter the nature of the suit. It only brings in an additional claim which the appellants should have asked for in the suit. Eversince 1937, when they auction purchased the properties in dispute they have consistently been endeavouring to assert their own right in these properties and it would now be a great hardship to defeat that right merely on this technical ground. We are, accordingly disposed to grant them leave to amend their plaint by adding a prayer for Khas possession....."
30. In a case reported in PLD 1965 Lah. 172, the point of grant of amendment vis-a-vis change of cause action, was considered and it was held as under :- "By the substitution of the relief of possession for one of declaration, there can be no question as to the change of the nature of the suit. It remains the same. The contention that by amendment of the plaint to include a prayer for possession the plaintiffs wanted to introduce a new cause of action is equally fallacious. The expression "cause of action" has been defined to mean every fact which would be necessary for the plaintiff if traversed to prove in order to support his right to the judgment of the Court. In other words, it means the whole bundle of material facts which it is necessary for the plaintiff to prove in order to entitle him to succeed in the suit and which if not proved would give the defendant a right to an immediate judgment. It had, therefore, nothing to do with the relief prayed for by the plaintiffs or the defence that may be set aside by the defendants.-
31. In the present case, Mst. Shah Begum and Sultan Begum sought the declaration on the basis of title and chinned that they were in possession of the property, therefore, an injunction, restraining the said defendant from ejecting them from the suit land, might be issued and through this amendment, they wish to claim a decree for possession of the said property, instead of injunction and for that matter, they want to amend the plaint. This amendment, if allowed, I think, will not change the cause of action, as such, I hereby allow the prayer sought for.
32. Keeping in view the above state of facts, I hereby remand the case to the trial Court, enabling Mst. Shah Begum and Sultan Begum, appellants to make necessary amendment to the plaint and thereafter, for the disposal of the suit in accordance with law. If the respondents wish G to put in an additional written statement, and contest the suit on the question of possession alone, they will be at liberty to do so and the Court below shall record additional evidence alone on this point, however, the appeal filed by Muhammad Iqbal, appellant is hereby dismissed with no orders as to costs.