FAZAL ELAHI KHAN, J.--This Regular First Appeal by Gul Marjan and Payao Gul his brother defendants is directed against the judgment and decree of Senior Civil Judge Bannu dated 10-7- 1985, whereby the plaintiff's suit for declaration that they are the owners of one-half share in the suit serai along with shops and half of its main gate and are entitled to possession of their shares to the southern side was decreed against them. The plaintiffs were further granted preliminary decree for possession by partition of their share claimed. The plaintiffs were, however, directed to pay court-fee amounting to Rs.3,000 on the plaint presumably, they being out of possession.
2. On 26-1-1980 Dr. Atta Muhammad and his brother Dr. Faqir Muhammad Khan both brought the present suit against Haji Noor Muhammad Khan (defendant-1) their brother and against the appellants hearing in the Court of Senior Civil Judge Bannu with the following prayers:--
(a) for declaration to the effect that the plaintiffs are the owners in possession of 2/3rd share in the property detailed in the plaint and that defendants 2 and 3 have got no interest m the property to the extent of the plaintiffs' share; that the decree passed in favour of defendants 2 and 3 in Suit No.76/1 decided on 22-3-1977 in favour of defendants 2 and 3 and against defendant No.l, to the extent of the plaintiffs' share, was fraudulent, collusive and ineffective on their rights and that they are not bound by it;
(b) for declaration for possession by partition of 2/3 share owned by the plaintiffs with costs.
3. It was alleged in the plaint that plaintiffs and defendant 1 being brothers and the property being ancestral the plaintiffs were entitled to 2/3rd shares in the serai in dispute. That plaintiff-1 is a doctor and was in Government service his brother plaintiff-2 was studying in England in the year 1977. Defendant-1 taking undue advantage of their absence from the village managed to sell half of the suit serai in favour of defendant 3 through a fraudulent and collusive consent decree in suit No.76/1 decided on 22-3-1977. It was alleged that defendant-1 who was entitled to one-half share in the suit serai was not competent to sell more than his entitlement. It was further alleged that the defendant's refusal to get the property privately partitioned necessitated the filing of the present suit. Defendant-1 did not appear in the Court in spite of due service while defendants 2 and 3 resisted the plaintiffs' suit on various legal and factual pleas. Their main defence was that defendant 1 was the sole owner of the suit property which in fact was an evacuee property and he had purchased it in open auction and P.T.O. And P.T.D. Issued in his favour. That after the purchase he sold one-half share of it in their favour for valuable consideration. This being the case set up by the defendants the plaintiffs filed an amended plaint, with permission of the Court, with material departure from the case set up by them in their original plaint. It was alleged that there had been a private partition between the plaintiffs and defendant-1 and that when the private partition was not honoured the dispute raised regarding it was resolved under Section 8 of the F.C.R. By the Assistant Political Agent A.D.M. North Waziristan Agency on 20-4-1977, whereby the plaintiffs were held entitled to one half share and defendant-1 of the remaining one-half. Accordingly in the amended plaint both of them claimed one- half share in the suit serai further asserted to be in possession of their respective shares. By way of consequential relief the plaintiffs prayed for possession by partition of their specified share in accordance with the alleged Jirga award.
The defendants in their written statement, filed after the aforementioned amendment, while resisting the plaintiffs suit apart from denying the plaintiffs entitlement re-agitated that the suit property exclusively belonged to defendant 1 who sold one half share of it in their favour on payment of Rs.1,90,000 which sale transaction was affirmed by the decree of the civil Court passed in their favour in Suit No.76/1. The learned trial Judge considering the pleadings of the parties framed the following issues:-
(1) Whether the plaintiffs have got a cause of action?
(2) Whether the suit is incompetent in its present form?
(3)Whether the plaint, is not amended in accordance with the orders of the Court, if so, to what effect?
(4) Whether the plaintiffs are estopped by their own conduct to bring the present suit?
(5) Whether the suit is properly valued for the purposes of court-fee and jurisdiction?
(6) Whether the suit is bad for non joinder of necessary parties?
(7) Whether the plaintiffs are owners of 1/2 share in the suit property?
(8) Whether the plaintiffs are entitled to the possession by partition of -- share in the suit property.
(9) Relief.
Dr. Atta Muhammad one of the plaintiffs appeared as his own witness and produced one Jan Nawaz Khan, his servant, in support of his case set up in the plaint and closed his evidence. He has also placed on file certain documents referred to in the earlier part of the judgment i.e. The alleged agreement between the brothers and the Jirga award. From the other side Gul Marjan defendant-2 appeared as his own witness and witness for his co-defendants and produced Daud Khan, Muharrir Registry Tehsil Bannu, Muhammad Akbar Khan and Asal Khan. During the trial of the case defendant-2 made an application for adducing additional evidence and also asked for examination of Atlas Khan and Haji Noor Rehman who were present outside the Court on the date of hearing, to get their statement recorded but both these requests were turned down by the learned trial Judge vide his order dated 16-4-1985.
5. The learned Senior Civil Judge after considering the evidence of the parties while giving his finding on issues 1, 2 and 7 held that the plaintiffs have a cause of action, that the suit was competent in its present form and that the plaintiffs were the owners of the half share in the suit property. Issue No.4 was decided against the defendants for lack of evidence and under issue No.5 the plaintiffs were found to be out of possession and liable to pay court-fee of Rs.3,000 on the plaint. Issues 2 and 6 were taken up jointly and it was held thereunder that the non-joinder of the purchasers of the remaining half share in the suit property was not fatal to the suit and as such sale was ineffective on the plaintiffs' share. In this view of the matter the plaintiffs were held entitled to possession by partition of half share in the suit serai lying towards the southern side vide the impugned judgment and decree dated 10-7-1985 which is challenged before us by defendants 2 and 3 in the present regular first appeal.
6. It was contended by the learned counsel for the appellants that the finding of the learned trial Judge on the issues referred to above are based on no evidence, the material evidence has been ignored and misread. It was further contended that the finding of the learned trial Judge apart from being self contradictory are erroneous on facts and law. That the judgment under appeal has proceeded on wrong premises as the plaintiff had to succeed on the strength of their own evidence and not on the weakness, if any, in the defendants' case.
7. The learned counsel appearing in support of the judgment and decree of the trial Court referred to the defendants' evidence which support the plaintiffs entitlement to half share in the suit property, however, he did not seriously support the judgment of the trial Court holding the decree- holder entitled to any specific part of the suit property and argued that the partition has to take place by meats and bounds.
8. After hearing the learned counsel for the parties and going through the evidence with their help we feel that the judgment and decree of the trial Court is not maintainble and is liable to be set aside as it suffers from serious legal and factual infirmities. In the original plaint the plaintiffs alleged that the property is their ancestral one and as such claimed 2/3rd share in it, however, when the defendants in their written statement challenged their allegation and stated that the property was an evacuee property which was purchased by defendant-1 in open auction, P.T.O.
And P.T.D. Issued in his favour, the plaintiffs made an ambiguous and vague application for amendment of their plaint which was allowed. In the amended plaint contrary to the permission granted by the trial Court they set up altogether a new case and introduced the factum of earlier private settlement between the `brothers in the year 1973 and the subsequent Jirga award made under Section 8 of the F.C.R. And made it the basis of their claim to half share in the suit property.
The defendants in their amended written statement apart from raising other pleas also challenged the maintainability of the amended plaint for the reasons stated, which plea was reflected in issue No. 3 reproduced above. It was reiterated by the defendants that they are purchasers of half share in the suit property from defendant-1, its ostensible owner and for valuable consideration and challenged the so-called private partition and Jirga award as a collusive and manipulated effort to deprive them of their property. In support of their case the plaintiffs failed to produce any independent and reliable evidence so much so that defendant-1 who is their real brother and a party to the suit was not examined in support of their case. No evidence was led to prove the alleged private settlement arrived at between the plaintiffs and defendant-1 in the year 1973. The alleged award given by the Jirga was also not binding on defendants 2 and 3 as they were not parties to it and it appears on the face of the record to be an exercise m futility. Even otherwise the plaintiffs in their original plaint and their statement in Court did not challenge the sale of half share in the suit serai in favour of defendants 2 and 3 by defendant-1. They only challenged the sale and the subsequent consent decree passed in favour of defendants 2 and 3 against defendant-1 to the extent of the share claimed by the plaintiffs as illegal and not binding on them. Dr. Atta Muhammad one of the plaintiffs in his statement in Court stated that Haji Noor Muhammad fraudulently and illegally transferred the whole property including his share and that of Dr. Faqir Muhammad in favour of defendants 2 and 3 through an ex parte decree. With regard to the remaining half share in the suit property he clearly admitted in his cross-examination that the same was also sold by defendant-1 to someone whose name he did not know and that the subsequent sale took place a year back. He showed his ignorance of the fact that Haji Noor Muhammad had purchased the serai in dispute in auction from the Settlement Department but further stated that it originally belonged to one Rochi Ram who was in debted to their father. Jan Nawaz Khan their other witness, who is their private servant, did not advance the plaintiffs case. His assertion that he was the mukhtiar of all the three brothers lost its force when in his cross- examination he admitted that defendant did not execute any power of attorney in his favour. He further admitted that Haji Noor Muhammad defendant-1 had sold half share in the suit serai to defendants 2 and 3 and the remaining half share in favour of a shoe-maker. He showed his ignorance about the new construction raised over the site and stated that he did not visit the suit property since last four years. He admitted the purchase of the suit property by defendant-1 in open auction but voluntarily stated that the sale consideration was paid from joint income of their property but was unable to show the actual amount paid for it. On the other hand, there is overwhelming evidence oral as well as documentary and the admission of the plaintiffs referred to above to prove that defendant-1, who had purchased the suit serai in open auction and was holding a P.T.O. And P.T.D. In his name transferred half of it by g sale in favour of defendants 2 and 3 for consideration of Rs. 1,90,000. This sale was further affirmed by decree of civil Court passed in his favour and against defendant-1, for the reasons we find no hesitation in holding that defendants 2 and 3 are the owners in possession of 1/2 share in the suit serai.
9. Regarding the remaining half share in the suit serai no doubt it is evident that Atta Muhammad plaintiff approached defendant-2 claiming to be the owner of other half share in the serai through family settlement and defendants 2 and 3 had initially agreed to purchase the remaining half share and in that respect had bona fidely paid Rs.1,00,000 but subsequently defendant-1 approached him and returned him the afore-mentioned amount saying that the plaintiffs had no authority to sell it and thereafter defendant-1 sold the other half share in the serai to some Kabulis and delivered possession to them. Defendants 2 and 3 thereafter purchased half of the main gate from the said vendees through a registered sale-- deed dated 28-8-1981. Unfortunately though the defendants wanted to produce these documents, which would have advanced the cause of justice, were not allowed to produce it.
10. Having held so the dispute with regard to the remaining half share could not be resolved in the absence of those who have admittedly purchased it subsequent to the sale, in favour of defendants 2 and 3, by defendant-1. The fact of the sale of the remaining half share was in the knowledge of the plaintiffs but they did not care to .Implead the vendees as parties to the suit and the Judge also failed in the discharge of his duty to implead them as such necessary parties under Order I, Rule 10, C.P.C. As no adjudication could be made in the matter and no effective decree could be passed in their absence regarding the remaining half share of the serai specially when defendants 2 and 3 had already purchased half share from defendant-1 who was competent to sell it. Such being the case the decree passed in favour of the plaintiffs is unsustainable. The learned trial Judge also acted arbitrary in making observation while answering the issue pertaining to non-joinder of necessary party, that if any dispute is raised by the transferee of the other half portion of the serai that would effect the rights of defendants 2 and 3 they being purchasers from a common vendor ignoring the fact that the plaintiffs had yet to establish their entitlement to the remaining half-of the suit property as against the vendees who were not then before the Court. For the reasons stated above we would accept this appeal, set aside the judgment and decree of the learned Senior Civil Judge Bannu and hold the defendants 2and 3 to be the owners in possession of half share in the suit serai as decreed in their favour by the civil Court in Suit No.76/1 decided on 22-3-1977 with which the plaintiffshave got no right and interest. Regarding the other half of the suit serai we would remand this case to the trial Court where if the plaintiffs still want to pursue the suit they have to implead the vendees of the remaining half serai as parties to the suit and then the Court is to proceed further, in the matter in accordance with law. It may be pointed out that if.
Defendant 1 is' held to be the sole owner of the serai then in that case the specific portion sold to' defendants 2 and 3 shall remain intact. The parties shall bear their own costs.