2.Learned counsel for the petitioners argued that the learned lower appellate Court misread the evidence on the record.
3. I have been taken through the evidence produced by the parties. In the suit filed by the respondent her case was that the property in dispute was owned by her father who died leaving behind him the present petitioner as his brother and the respondent as his daughter who inherited the property in equal shares. In the evidence produced by the respondent it was her case that her father Ghulam Muhammad inherited this property from his father. Petitioner No1 in the written statement claimed that he was the exclusive owner of the property but strangely did not disclose the source of his title. There was deliberate attempt to conceal the source of his title. However, Khan Muhammad a witness produced by petitioner No.1 as DW.2 admitted in cross-examination that the respondent's father namely Ghulam Muhammad and petitioner No.1 were sons of Shera and that petitioner No.1 got this property from his said father. From the evidence of this witness and petitioner No.1 himself the case of the plaintiff got corroboration that the property belonged to the father of Ghulam Muhammad and Sultan. Petitioner No.1 when appeared as his own witness as DW.
3 also indirectly admitted that they were four brothers and the property in dispute fell to his share whereas the property situated at Lokari Wali fell to the share of his other brothers which was in possession of the children of his brothers. The learned lower appellate Court having considered this evidence of the petitioner No.1 himself rightly held that the case of the plaintiff that this property was inherited by her father from his father was proved. Petitioner No .l did not make out a case in the written statement that this property was inherited by him from his father or that it fell to his share and the other property had gone to his other brothers.
4. Learned counsel for the petitioners failed to satisfy me that the finding of fact recorded by the learned lower appellate Court suffers from misreading, misconstruction or non-reading of evidence. From the evidence as I have also considered the inferences were correctly drawn by the learned lower appellate Court that the plaintiff who from the very start took up a specific plea that the property was inherited by his father from his father was corroborated by the evidence of petitioner No.1 who concealed the material fact that this property originally belonged to Shera.
5. Learned counsel for the petitioners then argued that the suit was not maintainable in the present form as the plaintiff was not in possession of the land. The submission has no force. It was admitted by petitioner No.1 as DW. 3 in his cross-examination that the plot in dispute was lying vacant at the spot for the last 5/6 years because the houses had already collapsed. Khan Muhammad DW. 2 a witness produced by the petitioners also admitted that the plot was lying vacant. In view of the finding that the property is owned by the plaintiff and petitioner No.1 in equal shares having been inherited from Ghulam Muhammad, which was admittedly vacant at the spot shall be deemed to be in possession of all the joint owners therefore, the plaintiff could maintain a suit restraining the other joint owner from occupying it exclusively or raising any construction thereon till partition was affected.
6. Learned counsel for the petitioners then argued that petitioner No.1 had already sold the plot through documents placed on the record. It has rightly been observed by the learned lower appellate Court that the petitioner No.1 could not sell the whole of the property as he was not the exclusive owner thereof. I have also considered this aspect of the case. Petitioner No.1 could certainly sell his undivided share in the joint holding but could not sell the entire property as he was not the exclusive owner thereof. The said sale would be effective only to the extent of one-half share and the purchaser shall be deemed to have stepped into the shoes of petitioner No.1 to that extent and become joint owner of the plot because it is still undivided who could seek partition of land and then raise construction on the separated portion.
7. For the foregoing reasons no case has been made out for interference under section 115 C.P.C. As the learned lower appellate Court has not committed any material irregularity and illegality in passing the impugned judgment and decree. The revision petition fails which is hereby dismissed with no order as to costs.