' Through this revision petition Ise Khan and others have challenged the judgment and decree dated 17-2-1985 passed by the learned Additional District Judge, Peshawar, whereby he accepted the appeal of the respondents Nos. 1 to 8 and, by setting aside the judgment and decree dated 3-1- 1983 passed by the learned Civil Judge, Peshawar, decreed the suit of the plaintiffs/respondents for possession of Khasra Nos. 1166, 1167, 1168 and 1169 in suit.
2. The background of the case is that Wali Jan and Mehmood Jan, vide registered sale-deed dated 19-3-1948, copy Exh. P.W.2/2 on the file, sold the suit Khasra numbers alongwith Khasra No, 1367 in favour of one Ajab Khan for a sum of Rs,300. It is specifically mentioned in the sale-deed that the said land has fallen to the share of the vendors through private partition and that they have transferred the possession thereof to the vendee Ajab Khan. This transaction was successfully pre- empted by Mst. Mahro predecessor-in-interest of the respondents herein and in the execution of the pre-emption decree, she was physically put into possession of the suit Khasra numbers by the revenue staff as per entries in the Roznamcha Waqiyati Mad No, 29 dated 2-12-1972, .Copy Exh. P.W.
2/9. This change of possession finds mention in the Jamabandi for the year 1951-52, copy Exh. P.W.
2/5 which was repeated in the Jamabandi for the year 1956-57, copy Exh. P.W.2/6. Ghulam Sarwar the predecess-or-ininterest of the defendants/petitioners also purchased land measuring 10 Kanals 41 Marlas out of several Khasra numbers including the one in suit, vide registered sale-deed dated 23-6-1948, copy Exh. D.W.1/1 from Janis Khan another co-owner, followed by other acquisitions as reflected in the revenue record, from different co-owners of the suit Khata and on the basis thereof, he and his successors-in-interest claim to be in possession as co-owners. The case of the plaintiffs/ respondents is that after obtaining physical possession on the strength of pre-emption decree, they put Ghulam Sarwar, now dead, predecessor-in-interest of the petitioners, in possession of the suit land as tenant on payment of half batai, who later on voluntarily surrendered possession, whereafter Ali Jan son of Mst. Mahro plaintiff now dead, represented by respondents Nos. 1 to 10, remained in possession of the suit land from Kharif, 1962 to Kharif, 1972. It is alleged in the plaint, that the defendants/petitioners illegally trespassed upon the suit land, which was duly reported to the police on 2-12-1972 and that since then the possession of the defendants/petitioners is unlawful and in denial of the title of Mst. Mahro predecessor-in- interest of the respondents. Consequently a decree for possession of the suit land was sought by the plaintiffs/respondents against the defendants/ petitioners. These allegations were denied by the defendants/petitioners and in their written statement they raised several pleas, both technical and factual.
3. Keeping in view the pleadings of the parties, the following issues were framed by the learned trial Judge:-
(1) Whether the suit is within time?
(2) Whether the plaintiff has a cause of action?
(3) Whether plaintiff had pre-empted the suit land and plaintiff had obtained possession of the same in execution of the said decree?
(4) Whether plaintiff has remained in possession of the suit land since pre-emption execution and has been dispossessed recently, if so, its effect?
(5) Whether the plaintiff is estopped to bring the present suit?
(6) Whether the sale in favour of Ghulam Sarwar Khan predecessorin-interest of the defendants is protected under section XLI, T.P. Act?
(7) Whether the matter is res judicata?
(8) Whether the plaint is not in accordance with Law Reforms Ordinance, 1972, if so, its effect?
(9) Whether the defendants or their predecessor-in-interest have made any improvements in the suit land, if so; how much and to what effect?
(10) Relief.
4. After recording such of the evidence as the parties wished to adduce, the learned trial Judge dismissed the suit of the plaintiffs/ respondents. Aggrieved with the same, the plaintiffs/respondents preferred an appeal before the learned District Judge, Peshawar which was heard by the learned Additional District Judge, Peshawar and he, vide his judgment and decree stated above, accepted the same and, by setting aside the judgment and decree of the trial Court, decreed the suit. Hence the present revision petition.
5. I have heard the learned counsel for the parties and have carefully perused the record of the case with their assistance.
6. The factual position, as gleaned from the record, is that Mst.Mahro the predecessor-in-interest of the respondents had obtained decree for possession through pre-emption of the entire suit Khasra numbers from a competent Court of law and that on the strength of the said decree she had been put in actual physical possession of the suit Khasra numbers, as is evident from the entries of the Roznamcha Waqiyati, copy Exh. P.W 1/4 on the file. These entries carry a presumption of correctness having been made by competent revenue staff, during the discharge of their duties. Mst. Mehro is shown in possession of the suit Khasra numbers as in the cultivation column of Jamabandi of 1951- 52, copy Exh P. W.2/5 and she is also shown in such possession in the cultivation column of Jamabandi of 1956-57, copy Exh. P.W.2/6. Presumption of truth is legally attached to the aforesaid entries of the annual record of rights under section 44 of the then Punjab Land Revenue Act, then applicable to the N.-W.F.P. As well. In the subsequent Jamabandi for the year 1960-61, copy Exh.
P.W.1/1 Mst. Mehro is recorded in physical possession as vendee over Khasra No, 1166 measuring 19 Marlas and through Ghulam Sarwar the predecessor-in-interest of the petitioners as a tenant, on payment of half batai over Khasra Nos. 1167, 1168 and 1169 measuring 4 Kanals 16 Marlas. These entries continued in the subsequent Khasra Girdawaris till Rabi, 1965 when Ali Jan son of Mst. Mehro deceased-plaintiff was recorded as tenant-at-will, being the son of the deceased plaintiff. On the contrary the petitioners base their claim on the registered sale-deeds in their favour and refute the aforementioned entries of the Jamabandis and the Khasra Girdawari. Their main ground is that the land was Banjer at the time of its purchase by Ajab Khan vide deed dated 19-3-1948, copy Exh. P.W.2/2 and consequently the vendors were not in a position to deliver physical possession to vendee Ajab Khan and consequently the learned Executing Court could not possibly hand over the actual physical possession to Mst. Mehro in the execution of the decree passed in her favour. According to their version, the warrant for the delivery of possession issued by the Executing Court was illegally complied with, by putting the decree holder Mst. Mehro in physical possession of the suit land decreed in her favour. They also agitated that the entries of the revenue record showing them as tenants of Mst. Mehro are fraudulent and collusive between the respondents and the revenue staff.
Their claim is that they are in possession as co-owners and so long as partition, by metes and bounds, does not take place, they are within their rights to enjoy the possession of the suit land without interference on the part of any other co-sharers including the plaintiffs/respondents.
7. I have given my anxious thought to the rival claims of the parties. There is no dispute between the parties so far as the legal proposition is concerned that a co-sharer in possession of a particular areas out of joint property is entitled to retain possession till partition without any interference on the part of other co-sharers and the remedy of the other co-sharers is to go for partition. This proposition of law is very well explained in the case Haji Khan Muhammad and others v. Yaqub Khan and others, reported as PLD 1956 (W .P.) Pesh. 96 in the following words:- "(d) Co-sharer--Long-standing exclusive possession to extent of individual share--Cannot be ousted by other co-sharers except by partition.
' There is authority for the proposition that in case a co-sharer has been in possession of a portion of joint land, exclusively, for a long period and the portion in his possession does not exceed his individual share, the other co-sharers cannot oust him therefrom or even get joint possession with him, as long as partition of the joint property does not take place."
8. This proposition of law was also elaborately discussed in another case Ahmed Miaji and others v.
Ekub Ali Munshi and others PLD 1961 Dacca 259, the relevant portion whereof is reproduced as follow:-- "The fact that there had been no partition by metes and bounds amongst the co-sharers does not justify that one co-sharer in exclusive possession of specific plot of land should be dispossessed by another co-sharer. If any such co-sharer is dispossessed from his specific land he has got the right to recover possession of the land of which he has been dispossessed. If anybody is aggrieved by such exclusive possession of a portion of joint land his remedy lies in filing a suit for partition but so long that is not done the possession of the co-sharer of the specific land must be respected."
9. The questions which require determination in the instant petition are:-
(i) Whether Mst. Mehro was put in actual physical possession of the land by the Executing Court in the execution of the pre-emption decree or not;
(ii) Whether the delivery of possession should be construed as actual or symbolical;
(iii) Whether Ghulam Sarwar predecessor-in-interest of the petitioners possessed the land in suit as tenant/licensee on behalf of Mst. Mehro deceased plaintiff or he came upon the land independently as co-owner; and
(iv) Whether he or his continued in possession of the suit land till the institution of the suit and that the entries of the Khasra Girdawari in the name of Ali Jan son of Mst. Mehro deceased-plaintiff since Rabi, 1965 are collusive and fraudulent.
10. As discussed elsewhere in this judgment, in the sale-deed Exh. P.W.2/2, the suit land has been described as the ownership of the vendors therein through private partition, and was sold as such to the transferee Ajab Khan. In the suit for pre-emption, a decree for possession of all the Khasra numbers mentioned in the sale-deed was solicited and the learned Civil Judge, seized of the said case, granted a decree for possession through pre-emption of all the Khasra numbers in suit exclusively, as is evidenced by the judgment, copy Exh. P.W.2/3. The possession of the decreed land was given physically to Mst. Mehro decree-holder and she is continuously shown in possession of the land either herself or through Ghulam Sarwar predecessor-in-interest of the petitioners and Ali Jan her son. Neither Ghulam Sarwar nor his heirs, after his death, bothered to challenge the aforesaid entries of the Jamabandis to which legally presumption of truth was attached. The burden to dislodge the said presumption was upon the defendants/petitioners and they have miserably failed to produce any cogent and convincing evidence in support of their contention. No doubt they relied on the oral testimony of Muhammad Khan and Sarwar Khan but their version does not inspire confidence and cannot be considered sufficient to rebut the long-standing entries of the record of rights. A perusal of the Fard Jamabandi for the year 1960-61 relating to the other Khasra numbers comprised in the Khata reveals that Ghulam Sarwar is recorded in possession of other Khasra numbers in the same Khata which goes to prove that he is in possession of the area acquired by him though the various sale transactions incorporated in the revenue record. The contention of the learned counsel for the petitioners that the delivery of possession to Mst. Mehro decree-holder is to be considered as symbolical, conferring no valuable rights on the plaintiffs/respondents, is without any force in view of the dictum of the Supreme Court in case Malik Muhammad Hayat Khan v. Subedar Yar Muhammad Khan, reported as PLD 1966 SC 612 wherein it was held that symbolical possession of the land delivered to the decree-holder is as good as actual possession.
11. No doubt the land was Banjer at the time of delivery of possession to Mst. Mehro but the principle of law that the possession of Banjer land is deemed to be that of all the co-sharers cannot be attracted to the instant case because, the vendors of Exh. P.W.2/2 had asserted themselves to be in exclusive possession of the suit land on the basis of private partition, in the sale-deed in favour of Ajab Khan, which rights were ultimately acquired by Mst. Mehro predecessor-in--interest of the plaintiffs/respondents through pre-emption decree. The fact, that the suit land was capable of physical possession in spite of being Banjer, gets corroboration from the entries of the Revenue Record, referred to above to which presumption of truth is attached and also the entry of the Jamabandi for the year 1960-61 regarding the entire joint property (copy Exh. D.W.1/2) showing Ghulam Sarwar predecessor-in-interest of the defendants/petitioners, in exclusive possession of specific Khasra Numbers 1580, 1582, 1585, 1667, 1674, 1675 and 1682 measuring 8 Kanals 19 Marlas all recorded as Banjer Qadeem in the column meant for the purpose. The principle of law that the possession follows title and that, in the case of fallow, or Banjer land, possession shall be presumed to be that of the real owner holds goods only in cases where the dispute is between the trespassers or persons in wrongful D possession on the one hand and the real owner or co-owner on the other.
The same cannot be availed of by co-owner entering upon the joint property as tenant or licensee on behalf of other co-owner, in which case the principle cf estoppel comes into play, debarring the co-owner in such possession to deny the title of his co-owner landlord. Consequently it is estasblished beyond any shadow of doubt that Mst. Mehro deceased-plaintiff was put into physical possession of the land, that she remained in possession thereof personally and through tenant/licensee and that she was entitled to retain possession till partition. The act of the petitioners by taking the law in their own hands and unlawfully dispossessing her, entitled her to sue for the possession of the suit land.
12. The upshot of the above discussion is that the judgment and decree of the learned appellate Court is well-founded and there being no legal and factual flaw in it, the same is hereby maintained and the revision petition is accordingly dismissed, with no order as to costs.