1. ' FAZAL ILAHI KHAN, J.---This is an appeal through leave of the Court against the judgment of learned Single Judge of Peshawar High Court, Circuit Bench, Abbottabad, in Civil Revision No,67 of 1991.
2. ' Mst. Noor-un-Nisa widow and Mst. Gul Faira daughter of Abdur Razzaq, appellants herein, brought the present suit against Ghulam Sarwar and 6 others, respondents herein, for declaration to the effect that they are entitled to 20/104 shares in the inheritance of Abdur Razzaq including Khasra No, 788 measuring 10 Marlas situated in Moza Ajmera, Tehsil Batgram. That inheritance mutation whereby respondents Nos.2 to 7 are shown the sole heirs of the deceased and the subsequent revenue record prepared in pursuance thereof is wrong and ineffective on their rights. That the sale mutation No,14 attested on 10-2-1988; whereby respondents Nos.2 to 7 sold entire suit Khasra number in favour of respondent No,1 is also ineffective to the extent of 20/104 shares, owned by the plaintiffs.
3. ' In the written statement filed by respondents Nos.2 to 7 judgment in favour of the plaintiffs was confessed. Respondent No,1 however, contested the suit on various legal and factual pleas. It was not denied that the plaintiffs are the heirs of Abdur Razzaq deceased, the original owner and predecessor-ininterest of respondents Nos. 2 to 7 but it was stated that they being the female heirs were not entitled to inherit Abdur Razzaq in accordance with custom prevailing in the tribe. It was further stated that the suit has been successfully brought by the plaintiffs/appellants at the instance of respondents Nos.2 to 7. Furthermore respondents Nos.2 to 7 having delivered possession under the sale more than 12 years before the institution of the suit respondent No,1 has become owner by prescription. The learned trial Judge on the pleadings of the parties framed as many as 14 issues of which issues Nos.9 to 13 relevant for the disposal of this appeal are as under:
(9) Whether defendant No,1 is bona fide purchaser and his rights are protected under section 41 of Transfer of Property Act?
4. (10)Whether Abdur Razaq Khan was the predecessor of the plaintiffs and defendants Nos. 2 to 7?
5. (11)Whether the entries in the revenue record in the names of defendants Nos. 2 to 7 and thereafter in the name of defendant No,1 Are wrong, unlawful conclusive, based on fraud and ineffective upon the rights of the plaintiffs?
6. (12)Whether the plaintiffs are entitled to the decree for declaration as prayed for in ' Mad Alif and Bai' of the plaint?
7. (13)Whether the plaintiffs are entitled to the decree for possession as prayed for?
8. ' After recording evidence of both the parties the learned trial Judge discussed issues Nos.9 to 12 and 13 jointly and holding that plaintiffs' are entitled to 20/104 shares worked out Rs,577. The sale consideration of such shares and instead of granting decree for 20/104 shares in the suit property the plaintiffs' suit was decreed for a sum of Rs,577 against the defendant/vendee. In appeal the learned District Judge by his judgment dated 15-5-1990 did not agree with the learned trial' Judge that appellants were consenting party to the sale in question made by respondents Nos.2 to 7 in favour of respondent No,1 and held the plaintiffs entitled to', 20/104 shares in the suit Khasra number. It was however, observed that the appellants can be compensated to the extent of their entitlement from the remaining landed property owned by their predecessor-ininterest, in the village. The judgment and decree of the learned District Judge Was challenged by respondent No,1 in Civil Revision No, 67 of 1991. Being influenced by the evidence led by respondent No,1, that he has constructed shops over the land after its purchase without any objection by the plaintiffs, the learned High Court maintaining the findings of the Courts below that appellants are entitled to their Mohammadan Law shares in the legacy of Abdur Razzaq, set aside the judgment and decree of learned District Judge and modified that of the learned trial Judge to the extent that appellants were granted decree for recovery of Rs,577 sale consideration of their share against respondents Nos. 2 to 7, the vendors, ' We have heard the learned counsel for the parties and perused the record. It is not denied that the property in dispute with some other property belonged to Abdur Razzaq Khan who died in the domain of Shariah, his inheritance therefore devolved on the appellants and respondents Nos.2 to
7. However, at the time of attestation of his inheritance mutation the appellants/plaintiffs' names were omitted from the inheritance. Respondents Nos.2 to 7 subsequently sold the aforementioned suit land in favour of respondent No,1 for a sum of Rs,3,000. When appellants came .To know of the omission of their names in the inheritance mutation and in pursuance thereof from the revenue record and the pedigree-table they filed the present suit challenging the inheritance mutation, the revenue record and the sale transaction. Respondents Nos.2 to 7 in their written statement did not deny the appellants' entitlement in the inheritance and in the property in dispute but the suit was contested by respondent No,1 on various legal and factual places.
9. ' It was contended by the learned counsel for the respondent that appellants who are female heirs of Abdur Razzaq are not entitled to inherit under customary law of the area, therefore, no inheritance mutation was attested in their favour. It was further contended that respondent No,1 is bona fide purchaser of the suit land from its ostensible owners for valuable consideration, therefore, his rights are protected under section 41 of the Transfer of Property Act. That he was delivered possession of the land under the sale, therefore, he has become owner of the suit property by adverse possession for more than 12 years, The contentions raised are not tenable. There is nothing on record that appellants were governed by customary law or that their predecessor died during the period when custom was the rule of inheritance rather it has been concurrently held by the Courts below that the appellants were entitled to 20/104 shares in the inheritance by Abdur Razzaq, the original owner. This finding was not challenged by respondent in appeal before the District Judge or that in cross-objections therefore such finding has attained finality and is not open to challenge. Regarding the plea of bona fide purchase respondent did not produce any evidence to show that he had inquired and made himself sure that Abdur Razzaq had left behind no other legal heir except respondents Nos.2 to 7 before he entered into the sale transaction. His plea that female heirs are not entitled to inherit is erroneous and of no help to the respondent. It therefore cannot be said tharhe is a bona fide purchaser and entitled to protection under section 41 of the Transfer of Property Act. No doubt respondents Nos.2 to 7 male members of the family were in possession of the suit property as the heirs when they were selling it but such sale is always subject to the rights of the other rightful owners adjustable at the time of regular partition among the shareholders, A vendor from the shareholder does not stand in a better position than that of his vendor and possession would be permissible and not adverse. The learned District Judge dealing with this aspect of the case, has rightly observed that Abdur Razzaq, predecessor-in-interest of the parties having left behind other property in the village the sale of the suit Khasra number made by respondents Nos.2 to 7 would be deemed to be sale of their Hissadari possession and such sale will be subject to adjustment at the time of partition among the shareholders, The findings of the learned trial Court and that of the learned High Court that appellants had consented to the sale are based on no evidence. As their names were omitted from the revenue record in pursuance of the inheritance mutation referred to above the question of their consent would not arise.
10. ' For the reasons stated above this appeal is accepted, the judgment and decree of the learned High Court is set aside and that of the learned District Judge restored. Parties to bear their own costs.