1. ' MUHAMMAD AFZAL ZULLAH, CJ.--- This petition for leave to appeal, by the defendants' side in a declaratory title suit, has brought under challenge the dismissal by the High Court of their Civil Revision. They have lost throughout.
2. ' The plaintiffs' claim was that they are the owners in possession of the suit property and that the defendants/petitioners Nos.1 and 2 had no right to interfere with the possession of the plaintiffs. The petitioners/defendants' plea was that they were donees under a valid gift. All the three Courts have rejected the petitioners' plea of a valid gift. Notwithstanding the concurrent findings on a very vital issue having gone against the petitioners their learned counsel relying on para 4 of the impugned judgment contended that although the respondents were owners of 80 Kinals they filed a suit regarding land measuring 121 Kanals 4 Marlas and that they had no right to institute the suit for area in excess of their ownership. The High Court observed that the plaintiffs being co-owners in the entire suit land were within their right to claim declaration sought for in the suit to the effect that they were in possession as co-owners. It was also held that when a piece of land is encroached upon or legally occupied. By a third party, even one of the co-owners can bring a suit to dispossess the intruders.
3. ' The precise argument of the learned counsel addressed before us is that according to the latest trend and authority of this Court, a co-sharer cannot seek and retain possession beyond his own share. He referred to Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9 and also, as he stated, further 'elaboration in Atta Muhammad v. Sahibzada Manzoor Ahmad and others 1992 SCMR 138. Some unreported judgments of this Court have also been brought under discussion in this behalf. They are Civil Petition No,747 of 1989 decided on 6th June, 1990 and Civil Appeal No,56 of 1990 decided on 5th May, 1991.
4. In so far as the general proposition is concerned the learned counsel seems to be right that according to the latest trend of authority a co-owner is not allowed to retain the share of his other co-owners; but, mostly it is between the co-sharers themselves, that amongst others, on equitable basis also it has not been thought fair to deprive the co-sharers of the right to enjoy their respective shares. The learned counsel while aggreeing with this approach, not only praised but supported it. He being a very senior lawyer such a concession cannot be ignored. We further appreciate his candidness in stating that what the Supreme Court ruled in some recent judgments was also the view taken by the Lahore High Court sometime in 1920. In this behalf he cited Dipa v.
5. Lal Chand and others AIR 1922 Lah. 393 and in slightly different context he also mentioned another Lahore judgment; namely, Vinod Sagar v. Vishnubhai Shanker Kakobhai and others AIR 1947 Lah.
6. 388.
7. The result of the entire discussion and reference to or reliance on the aforenoted decisions was that the learned counsel ultimately remained unable to canvass that a decree could not be passed in favour of the respondents regarding the land which actually did not belong to them but in fact did belong to their co-sharers. And it was agreed that the decree to the extent of the co- owners' shares, will inure for their benefit.
8. ' Learned counsel then volunteered further assistance to the Court in the context that if the petitioners cannot retain the land which belongs to the non-party co-sharers, and not to the respondents/plaintiffs, should not be usurped by the latter.
9. The proper approach in such like situation, in our view, would be to declare that the respondents are entitled under the decree to the benefit of that part of the suit land which is to the extent of their own share. With regard to the remaining land which falls within the share of their co-owners, the ultimate beneficiaries will be the said co-owners. And that the winning party i.e, the plaintiffs shall voluntarily surrender their co-sharers' rights/property to them. Such declaration can definitely be made by this Court and we order accordingly. See Province of West Pakistan through the Secretary, Revenue Department, Lahore v. Associated Hotels of India Ltd. 1973 SCMR 367.
10. ' Be that as it may, learned counsel for the petitioners also furnished assistance on this issue by citing Order XXI, Rule 15 of the C.P.C. In support of the non-party co-sharers' right to get the decree executed in their favour even through the respondents/plaintiffs. Rule 15 and Commentary by Aamer Raza A. Khan read as follows:--- "15 Application for execution by joint decree-holder.--- (1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or where any of them has died, for the benefit of the survivors and the legal representatives of the deceased.
(2) Where .The Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the applications"(Commentary) Execution in favour of joint decree-holders.-- The general principle is that where several persons are jointly entitled to the assertion of a right, they must all be before the Court for purposes of enforcing such right. This rule only applies to a decree passed in favour of joint decree-holders. However, an exemption is made in the case of proceedings for the execution of a decree passed in favour of several decree- holders jointly. A joint decree means a decree passed in favour of two or more persons though their shares may be different. Rule 15 permits anyone or some of such several decree-holders to apply for the execution of the whole decree for the benefit of all the joint decree-holders, unless the decree imposes any condition to the contrary. However, such applicant/decree-holder cannot apply for the execution of his share of the decree only. Even an assignee of a joint decree-holder can apply for the execution of the whole decree. See notes under rule 16 post. The rule is based on the principle that the judgment-debtor should not be harassed by a number of execution applications. The decree is not joint where the separate shares of the several decree-holders are specified and each decree-holder can take out execution respecting his own share. However, in partnership cases, a decree, is necessarily joint. Where a decree-holder dies his heirs are joint decree-holders. However, a partition decree cannot be executed by one holder for the benefit of all.
11. ' If payment is made out of Court to some of the several joint decree-holders, such decree-holders cannot certify payment on behalf of all the other decree-holders. See also Order 21, Rule 2. Payment to the one of the holders of a joint decree is valid and discharges the judgment-debtor only upto the extent of the share of such judgmentdebtor(s), unless such decree-holder possesses a legal authority to bind the other decree-holders. For instance, a partner is an agent of the other partners, and can give a valid discharge on behalf of all the other partners. Where one decree-holder has received full payment on behalf of all the holders of a joint decree, the other decree-holders have two alternatives open to them, i.e,, they either take out execution against the judgment-debtor for their share of the decretal debt, or they can sue the decree-holder who has received payment on their behalf. The judgment-debtor, however, can by himself pay the share of any particular holder of a joint decree, he likes. The object of the rule is to prevent harassment of the judgment-debtor by each of the decree-holders.
12. ' By virtue of rule 15 of the Court can allow execution of the whole decree on the application of anyone of the joint decree-holders, but it is its duty to pass necessary orders to protect the interests of those who have not joined in the execution application. It is, however, discretionary for the Court to permit execution by one of several joint .Decree-holders on behalf of the rest for the benefit of them all and this is not a right claimable by any decree-holder. It is also discretionary with the Court to give notice to the other decree-holders.
13. ' Where a joint decree is sought to be executed by some of the joint decree-holders for the benefit of all the decree-holders it is not necessary that a statement to this effect should be made in the application for execution. No particular form is prescribed. An omission to name all the decree- holders does not render the application not in accordance with law. The Court has discretion to issue or not to issue notice to the other decree-holders. The names of all the other decree-holders need not be given in the execution application. A joint decree executed by some of the several joint decree-holders is prima facie for the benefit of them all, and the non-applicant decree-holders are entitled to recover the share of the decree from such decree-holders. An execution by any decree- holder under rule 15 is necessarily for the benefit of all the other joint decree-holders." (underlining is by us).
14. Under sub-rule (2) the non-party co-sharers even if they did not file an application for execution can be granted benefit of decree by the executing Court. If there is any technical defect in the decree we hereby remove the same and declare that the non-party co-sharers are entitled to the same relief to the extent of their share as has been granted to the respondents/plaintiffs. With these observations, clarifications and with further appreciation of the conduct of the learned counsel in following the correct rules and ethics of profession of law, we dismiss this petition.