The revisional jurisdiction of this Court has been invoked to set aside the judgment and decree passed by the learned District Judge, Rahimyar Khan on 10--10-1988. He had accepted the appeal against the judgment and decree dated 18-3--1986,pronounced by the learned Civil Judge, Ist Class, Rahimyar Khan.
2. The facts leading to the instant revision petition, in substance, are that Jam Khair Muhammad, the respondent is an owner in Khata No.7 of village Noorewali Tehsil and District Rehimyar Khan. He claims to be in possession of field No.20 of Rectangle No.514/1 bearing Khata No.7 measuring 19 Marlas. Jam Khair Muhammad, the respondent alleged in the plaint that he had constructed rooms on the disputed land and had also enclosed its courtyard. According to him, the petitioners were not the owners of the land in this Khata and when they found the rooms vacant, the defendants, who belong to a nomadic tribe adopted their residence in the said rooms unauthorisedly. When the plaintiff/respondent asked them to deliver the possession of the property in dispute, they responded that they would vacate the same after getting alternate accommodation. The petitioners did not vacate the property in dispute and Jam Khair Muhammad was constrained to file a suit for possession of the property in dispute.
3. The petitioners contested that suit and inter alia contended that it was hit by Martial Law Regulation No.115 and was also barred by time. They reiterated that they were co-sharers in Khata No.7 and were the owners of the property in dispute and the suit of the plaintiff/respondent was not maintainable. The learned trial Court formulated the following issues:- (1)Whether the suit is not maintainable (based on preliminary objection No.l) OPD.
(2)Whether the suit has not been correctly valued for the purpose of court-- fee and jurisdiction?
OPD.
(3)Whether the plaintiff is owner of the property in dispute and is entitled to its possession? OPP.
(3-A)Whether the suit is time-barred, the plaintiff being out of possession for over 12 years before the institution of the suit? OPD.
(4)Relief. ,
4. The learned trial Court dismissed the suit of Jam Khair Muhammad but his appeal was successful and the learned District Judge, Rahimyar Khan granted him a decree for possession of the property in dispute on the basis of his title. Issue No.3 has only been agitated before me.
5. As the documentary evidence manifests, Mst. Hassan Jan wife of Nadir Khan and daughter of Mian Muhammad purchased 9 1/2 Marlas of land out of Khata No.10 from one Haji Muhammad Yar son of Karim Bakhsh, on 14-3-1974 as is evident from Exh.D-2. Similarly vide Exh.D-3, Haji Muhammad Yar sold another 9-1/2 Marlas of land out of Khata No.10 in favour of Mst. Razia daughter of Nadir Khan and wife of Muhammad Sharif on 11-3-1974. It shows that both the ladies became co-sharers of Khata No.10.
6. The stand of the petitioner is that in fact Haji Yar Muhammad had given him thepossession of the land and the houses in Khata No.7 and they occupied the same and when they came to know that this land was in Khata No.7, they exchanged this land with the land of one Zahoor Alam, who is a co-owner in Khata No.7 and an exchange deed was executed between them and they acquired title in this land. Zahoor Alam has, in unequivocal terms, stated as DW.3 that he had exchanged his land in Khasra No.7 in favour of the petitioners as Haji Muhammad Yar was not an owner in Khata No.7. He has stated that the defendants had acquired the rooms on rent from Haji Muhammad Yar.
He had not gone himself in those houses and does not know the covered area of the plot.
7. It has been submitted that Zahoor Alam is an enemy of Jam Khair Muhammad and he has, therefore, deposed against him and in favour of the petitioners. This argument is devoid of any force because a person like Zahoor Alam is not expected to divest himself of the valuable residential property measuring 19 Marlas in this Khata. It is to be seen whether or not Zahoor Alam was an owner in Khata No.7 at the time of this exchange deed. The copy of the Jamabandi for the year 1977-78 Exh.P-2 indicates that out of 8,448 shares Zahoor Alam was the owner of 4,248 shares in Khata No.7 Khatooni No.22, Rectangle No.514/1 and Field No.20. It shows that he was an owner of more than half of the Khata No.7 and he could validly transfer his share by exchange, as he has done so. In this manner, the petitioners became co-owners in Khata No.7 by virtue of the exchange-deed.
8. It was pointed out that Muhammad Yar had sold the property out of Khata No.10 but the exchange is made out of Khata No.Ll. It does not affect the plaintiff/respondent at all because he is not an owner in Khata No.10 or 11. Suffice to say that the petitioners/defendants became co-owners in Khata No.7 by virtue of exchange-deed and Zahoor Alain had taken their land by exchange of his land in Khata No.7.
9.It is not a case under section 9 of the Specific Relief Act but is purely a suit for possession on the basis of title. A co-owner cannot eject another co- 1A owner unless the partition of the joint property is effected. Kutijan Bibi v. Zulmat Khan and others PLD 1968 Dacca 172, Ahmad Miaji and others v. Eakub Ali I Munshi and others PLD 1961 Dacca 259 and Muhammad Shari and 2 others v.
Munshi and 3 others 1979 CLC Lah. 230 go to prove that a co-sharer in exclusive possession of a portion of 'a joint property cannot be dispossessed by another co- B sharer except by bringing a suit for partition. In this manner, the right course for Jam Khair Muhammad was to apply for the partition of the Khata in dispute.
10. The learned counsel for the plaintiff/respondent has contended that exchange deed was executed on 28-4-1980 and he instituted this suit on 29-4-1980 and the exchange deed was registered on 30-4-1980 and in this manner the doctrine of lis pendens as envisaged under section 52 of the Transfer of the Property Act was attracted to their suit. It may be noted that this plea was not taken by Jam Khair Muhammad in his plaint nor were the petitioners afforded an opportunity to defend this plea in their written statement and no issue was framed to that effect and the respondent cannot take the petitioners by surprise by raising this point at the revisional stage.
11.Even if it be conceded that the plaintiff-respondent could raise this law point at any stage, he cannot succeed. He has cited Noor Muhammad Khan v. Muhammad Zaman Khan and others PLD 1983 Azad J&K 34 in which it was held that the sale-deed was valid registered, if countersigned by a competent authority when it is compulsorily registrable Atar Ali v. Abid Ali and others PLD 1954 Dacca 158 has been referred to which lays down that when a lease was executed pending suit for specific performance of contract, it was covered by the rule of lis pendens. Both these rulings are not attracted to the instant case because the point raised at this stage is whether the doctrine of lis pendens applies, when the exchange deed was executed a day before the institution of the suit but was registered a day after its institution. Execution means signed, sealed and delivered. The transaction was complete when it was executed. Its registration has just validated this document on 30-4-1980. In Sadei Sabu v. Chandramani Dei and another AIR 1948 Patna 60, the sale-deed was executed before the institution of the suit and was registered during the pendency of the suit. It was held that it was not hit by the rule of lis pendens as it was not executed E pendente lite. The same principle was enunciated to Akki Guru and another v. Valuvathi Setra Santhappa and others AIR 1925 Mad. 710.
11. 1n this manner, the learned District Judge has acted illegally and with material irregularity in exercise of his jurisdiction. 1, therefore, set aside his impugned judgment and restore that of the learned Civil Judge Ist Class, Rahimyar Khan. The suit of Jam Khair Muhammad stands dismissed and the revision petition is accepted with costs throughout.