Petitioner Abdul Latif filed a suit before the Civil Court at Mansehra and asked for the grant of a declaratory decree, that he is owner in possession of 3/8 share in a certain land measuring 7 Marlas comprised in Khasra No.786 of Khata No.735/1000 in village Shinkiari of Mansehra-Tehsil.
That the remaining 5/8 share in the suit filed is owned by the defendant-respondent, namely, Abdul Qayum. That the suit property is still joint between the parties and a `Tatima' carved out in favour of the respondent by the other co-owners vide Mutation No.5970 dated 29-9-1973 is wrong, illegal and ineffective against his rights. The plaintiff further asked for the grant of a decree for perpetual injunction against the defendant in order to restrain him from making construction on the common land and a decree for joint possession of 3/8 share out of Khasra No.786. The suit after contest by the defendant-respondent was dismissed by the Civil Judge on 3-7-1988. An appeal taken before the Additional District Judge met the same fate. Hence this petition under section 115, C.P.C.
2. I have heard Syed Abdus Salam Sarwar, Advocate for the petitioner and Mr. Mohammad Ayub Khan, Advocate for the respondent. An extract from the current jamabandi for the year 1969-70 (Exh.PW.l/1) has been placed on the record of the lower Court. It indicates that Khasra No.786 measuring 7 Marlas is "Ghair Mumkin-Abadi". It is shown in possession of the owners mentioned in column No.l who are Mst. Narmoon widow, Mst.' Gulshan daughter of Ghulam Hussain and Abdul Latif son of Nagina the present petitioner. Mst. Narmoon is recorded as owner of one share, Mst.
Gulshan 4 shares and Abdul Latif 3 shares. A reference of Mutation No.5970 dated 29-9-1973 is mentioned in this `Fard' vide which Mst. Narmoon and Mst. Gulshan have sold their five shares out of the joint land (measuring 4-1/2 Marlas) to respondent Abdul Qayum son of Hayatullah. A photostat copy of Mutation No.5970 is placed on the record of the lower Court. It shows that a "Tatima" was carved out for 4-1/2 Marlas' of land transferred in the name of the respondent and given new Khasra No.786/2 as column No.11 of the Mutation form indicates. The final order of the revenue officer passed on 29-9-1973 on this mutation however clearly mentions that the sale' had taken place in the cultivation column.
3. The land involved in Khasra No.786 was admittedly joint ownership of petitioner Abdul Latif and Mst. Narmoon etc. The ladies could sell their share out of the joint property but no share could be separated or a "Tatima" carved out of the common property in the absence of any express permission of the petitioner who is a co-sharer in the whole of the property and interested, in every inch of the joint land. The position would have been otherwise if Mst. Narmoon and her daughter Mst. Gulshan had been the only owners of Khasra No.786. They in that case could. Sell a specific portion from the joint land and deliver possession to the transferee after separation of the portion sold by, carving out a `Tatima'.
4.In the instant case the transferee from the ladies shall be clothed with the same rights which they had in the property and he would be now a co--sharer in the joint land to the extent of the share purchased by him from Mst. Narmoon etc. No more and no less. The learned Courts below have quite ignored this aspect of the matter and failed to apply the correct law on the subject. No doubt, that the respondent has made some construction over the joint property on the roadside but the issue of these improvements shall be determined at the time when the property would be divided by metes and bounds at the time of partition.
5. In this background of the case I see that the two Courts below have acted illegally or with material irregularity in deciding the case. I would thus reverse their findings by accepting this revision petition with the result that the judgments and decrees impugned are set aside and the petitioner-plaintiff granted a declaratory decree with regard to the suit land as prayed for. No order as to costs.