' This petition under section 115, C.P.C. Has been filed to call in question the appellate judgment and decree dated 22-3-1982 passed by the learned Additional District Judge, whereby he decreed the suit of Muhammad Sadiq respondent after setting aside the decree of the trial Court.
2. Muhammad Sadiq respondent filed a suit for declaration on 26-4-1975 to the effect that he was owner in possession of the land measuring 12 Kanals and 15 Marlas comprising of Khasra Nos. 400, 432 and 398 situated in Mauza Kariat, District Jhelum. By way of consequential relief he sought an injunction restraining the defendant from interfering in his possession and making any change in the revenue record. Subsequently, the plaintiff was allowed to amend the plaint to claim relief of possession of the suit land on the ground that he was dispossessed during pendency of the suit. It was claimed in the plaint that the plaintiff obtained the land through Mutation No,233 dated 27-11- 1994 from Mst. Sarwar Jan and that he was owner in possession of the same. The suit was resisted by the petitioner-defendant by taking the plea that neither the plaintiff nor Mst. Sarwar Jan was in possession of the suit land and that Mutation No,233 was sanctioned in favour of the plaintiff in excess of the share of Mst. Sarwar Jan. However, in preliminary objection No,2 it was specifically averred that at the time of the institution of the suit or prior to that Mst. Sarwar Jan, the predecessor-in-interest of the plaintiff was in possession of the suit land. Obviously, the written statement is contradictory in respect of the factum of possession of Mst. Sarwar Jan on the suit land. The learned trial Court, inter alia, framed the following issues which are relevant for the decision of this petition:- "(1) Whether the plaintiff has been dispossessed from the land in dispute during pendency of the suit and thus, is entitled to the possession of the same? OPP
(2) Whether the plaintiff is entitled to a declaratory decree and perpetual injunction prayed for?
OPP."
' The learned trial Court decided both these issues against the plaintiff and dismissed the suit.
However, the learned Additional District Judge, in appeal, reversed the findings of the learned trial Court and decreed the suit. He held that Muhammad Sadiq plaintiff was in possession of the suit land and he had been dispossessed pendente lite and, therefore, he was entitled to a decree for possession. Alternatively, however, he held that even if it was possible to assume that the plaintiff had not been dispossessed during pendency of the suit, he was still entitled to the grant of possession of the land under section 9 of the Specific Relief Act, because his dispossession in any case was within 6 months of the institution of the suit. The learned Appellate Court observed, and rightly so, that the documentary evidence which comprised of the copies of the Jamabandi had been ignored by the learned trial Court while deciding the suit.
3. Sh. Zamir Hussain, learned counsel for the petitioner has raised the following contentions:-
(i) Mst. Sarwar Jan has never been in possession of the suit land and the gift made by her in favour of her husband Muhammad Sadiq is not proved to have been accompanied by the delivery of the possession, therefore, plaintiff did not become owner of the suit land.
(ii) Mst. Sarwar Jan was owner to the extent of 16 Marlas in the suit land because her share in the Khata was 1/16 only. The gift in favour of Muhammad Sadiq is valid up to 16 Marlas only. Niaz Ali defendant, being co-owner can be dispossessed through partition, and that too to the extent of 16 Marlas only.
(iii) Muhammad Sadiq had never been in possession of the suit land, therefore, the question of his dispossession by the petitioner did not arise. In this view of the matter it was totally irrelevant whether the defendant was in possession of the land or not.
(iv) The suit could not have been treated as one under section 9 of the Specific Relief Act,
4. Maulvi Anwar-ul-Haq, learned counsel for the respondent on the other hand has made the following submissions:--
(i) Mst. Sarwar Jan was owner of 12 Kanals and 15 Marlas in the joint Khata and held exclusive possession over Khasra Nos.400, 432 and 398 which are equal in area to her ownership rights in the Khata. She could validly make gift of the suit land in favour of her husband Muhammad Sadiq plaintiff and the gift made by her cannot be challenged by the petitioner.
(ii) That a transferee from a co-owner steps into the shoes of the transferor and subject to final adjustment in partition, he is entitled to retain the possession obtained from the transferor. In this behalf he submitted that a co-owner can validly alienate, by sale or gift, the property to the extent of his share in the joint property.
(iii) In view of the law laid down in Muhammad Shall v. The Collector etc. 1979 CLC 230, a suit under section 9 of the Specific Relief Act is competent for restoration of exclusive possession. However, dispossession of the plaintiff having taken place after the institution of the suit, the suit would be deemed to be a suit for declaration and a relief for possession can validly be granted therein.
(iv) Mst. Sarwar Jan remained in possession of the suit land throughout and after the gift made by her the plaintiff was in possession till after the institution of the suit.
(v) The revision petition deserves to be dismissed because the discretion should not be exercised in favour of the petitioner who wants to grab the land which is owned by the respondent.
5. Muhammad Sadiq plaintiff produced P.W.1 Niaz Ali son of Nadir Khan, P.W.2 Aadil Hussain and himself appeared as P.W.3. P.W.1 stated that initially the land was owned by Mehar All on whose death it came to the share of his daughter Mst. Sarwar Jan who transferred the same in favour of the plaintiff. He further stated that the plaintiff was in the cultivating possession of the land since 12 years and the defendant obtained forcible possession during pendency of the suit. In the cross- examination he stated that Mehar All died 17/18 years ago. His land was inherited by his daughters Mst. Sarwar Jan and Mst. Rani. P.W.2 also deposed to the same effect in all material particulars. In the cross-examination he stated that the defendant illegally occupied the suit land six months after the gift, in the season of SAWAN, BHADDON. Plaintiff himself as P.W.3 stated that the land initially belonged to Mehar Ali. After his death the land owned by him was inherited by his daughters. Mst. Sarwar Jan (his wife) gifted the land in his favour, and that he cultivated the land during her lifetime also. He further stated that since after the gift the possession remained with him but he was dispossessed by the defendant during pendency of the suit. In the cross-examination he stated that the defendant forcibly occupied the land 5/6 months after the institution of the suit.
6. Niaz All defendant produced Noor Alam Lambardar as D.W.1, Naib Subedar Niaz Muhammad son of Allah Ditta as D.W.2 and himself appeared as D.W.3. D.W.1 stated that original owner was Mehar and the plaintiff as also the defendant are his sons-in-law. He stated that Mst. Sarwar Jan never remained in possession of the suit land which was in possession of Niaz All defendant. He stated that the defendant was married to Mst. Rani. In the cross-examination he admitted that defendant was employed in Lahore and occasionally came to the village on leave. D.W. 2 made a similar deposition. He stated that Mst. Sarwar Jan is the wife of the plaintiff but she never remained in possession of the land. Her father Mehar Ali died 18/20 years ago. Defendant as D.W.3 stated that he was in possession of the suit land measuring 12 Kanals and 15 Marlas since long and that neither Mst. Sarwar Jan nor Muhammad Sadiq remained in possession of this land. Muhammad Sadiq plaintiff is the husband of Mst. Sarwar Jan whose share in the inheritance of his father comes to 12 Kanals 15 Marlas and she did not own any other area of her own. In the cross-examination he admitted that after the death of Mehar the land was inherited by his daughters. He also admitted that Mst. Sarwar Jan transferred her share in the name of the plaintiff. He was an army pensioner and since after his retirement in 1961 he remained employed in Lahore and came back four years ago. He denied that he forcibly took possession of the land.
7. Apart from the above oral evidence plaintiff also produced documents Exhs.P1, P2, P3 and P4 which are respectively the copies of Registers Haqdaran Zamin for the years 1968-69, 1964-65, 1972-73 and Register Girdawari from 1973 to 1975.
8. In addition to the above oral and documentary evidence, the local commissioner who was appointed to ascertain the possession of the suit land also examined some witnesses produced before him by the parties. The local commissioner visited the spot on 19-10-1975 and examined Subedar Muhammad Sharif, Boastan Khan, Muhammad Najeeb and Muhammad Sadiq from the plaintiffs side and Munshi Khan, Adalat Khan, Muhammad Walayat and Niaz All from the defendant's side. Before the local commissioner defendant stated that Mehar Khan made him Khana Damad and his mother-in-law gifted her entire land in his favour. The local commissioner found that Adalat Khan who was produced before him as D.W.2 was ploughing one of the disputed fields when he visited the spot. Adalat Khan deposed before him that he was servant of Niaz Ali defendant and he had started cultivating the land since the month of Harr and that the defendant had purchased him, oxen for the purpose of cultivation.
9. From the oral and the documentary evidence, it is evident that Mehar Ali died about 17/18 years back. On his death his estate was inherited by his legal heirs who, inter alia, included Mst. Jiwani widow, Mst. Rani and Mst. Sarwar Jan daughters. Mst. Rani is the wife of Niaz All petitioner- defendant while Mst. Sarwar Jan is the wife of Muhammad Sadiq respondent-plaintiff. After the death of Mehar Ali his legal heirs are joint owners in the Khewat, alongwith some other persons.
According to Exh.P2 (Jamabandi for 1964-65) the share of Mst. Jiwani widow in the Khata is 9/256 while Mst. Sarwar Jan and Mst. Rani, the two daughters of Mehar, have 16/256 share each, in the Khata. The note in red ink on the Jamabandi shows that Mst. Jiwani widow of Mehar alienated her 9/256 share in Khewat No,46, equal to 8 Kanals and 13 Marlas, in favour of Niaz All petitioner vide Mutation No,204 dated 20-6-1967. Similarly, Exh.P3 (Jamabandi for 1972-73) shows that land measuring 12 Kanals and 15 Marlas comprising of Khasra Nos.432, 400, 398 was gifted by Mst.
Sarwar Jan (owner of 16/256 share in the Khata) in favour of Muhammad Sadiq respondent vide Mutation No,233, dated 27-11-1974. These three Khasra numbers are included in Khatooni No,308, and are shown to be in Hissadari possession of Mst. Sarwar Jan.
10. Consistent entries in the Jamabandi right from 1964-65 as per Exhs.P1, P2 and P3 show that Mst.
Sarwar Jan co-sharer was in exclusive possession of the Khatooni which comprised of the said Khasra numbers, namely, 398, 400 and 432, measuring 12 Kanals and 15 Marlas. Khasra Girdawari Exh.P4 also shows that on these particular Khasra numbers Mst. Sarwar Jan was in cultivating possession and since after the gift Muhammad Sadiq came in possession of these particular Khasra numbers. From the oral and the documentary evidence, it is thus more than clear that the suit land measuring 12 Kanals and 15 Marlas has always been in Hissadari possession of Mst.
Sarwar Jan. She gifted this area in favour of her husband, the plaintiff who was in possession of the same thereafter.
11. Learned counsel for the petitioner has vehemently argued that Mst. Sarwar Jan was owner of 1/16th share in the suit land, therefore, the gift made by-her of the entire land of 12 Kanals 15 Marlas is illegal. Submission of the learned counsel, however, is not supported by the evidence on the record. Mehar All was owner of larger area in Khewat No,46 of Exh.P2. Of the total area of this Khewat Mst. Jiwani widow of Mehar Ali was the owner of 9/256 share while Mst. Rani and Mst.
Sarwar Jan daughters of Mehar Ali, each had 16/256 share. Mst. Sarwar Jan was in possession by way of Hissadari Kaasht of land measuring 12 Kanals and 15 Marlas (Khasra Nos.398, 400, 432) included in Khatooni N4.317 of the said Khewat. It may be clarified that in Register Haqdaran Zamin, also called Jamabandi or Misal Miyadi, Khewat represents the holding of an owner or joint owners.
A Khewat is further sub-divided in various Khatoonis according to the tenant-wise possession or Hissadari Kaasht-wise possession of co-sharers. In the cultivation column Mst. Sarwar Jan is shown in Hissadari possession of the aforesaid 12 Kanals and 15 Marlas of land. It means that she was in exclusive possession of the suit land measuring 12 Kanals and 15 Marlas. Exh.P2 further shows that Mst. Jiwani widow gifted her share of 9/256, measuring 8 Kanals and 13 Marlas in favour of defendant Niaz Ali. The share of Mst. Sarwar Jan is 16/256 in the Khewat. If 9/256 of the Khewat comes to 8 Kanals and 13 Marlas then 16/256 would come to 12 Kanals 15 Marlas. It is further established from Exh.P3 that Mst. Sarwar Jan dated 12 Kanals and 15 Marlas of land, which was in her exclusive possession and which was within her entitlement to the respondent-plaintiff.
Therefore, he is the valid donee to the extent of 12 Kanals and 15 Marlas from his wife Mst. Sarwar Jan.
12. This is now well-settled that a co-owner can validly transfer his share in the whole of the undivided joint Khata to the extent of his share, through sale or gift etc. And deliver possession of the area in his possession to the transferee. The title stands validly conveyed to the transferee, subject to future adjustment in the partition proceedings. The transferee in fact steps into the shoes of the transferor and he himself becomes a co-sharer in the Khata to the extent of the share transferred in his favour. In Muhammad Inayat v. Ghulam Murtaza PLD 1987 Lab. 537, it was observed as follows:-- "It is well-settled that a co-sharer can hold physical possession of particular Khasra numbers comprising a joint Khata by means of what is popularly known as Hissadari Kaasht and the land so held by a co-sharer can be sold by him resulting in the vendee being validly conveyed title thereto subject to adjustment on partition."
' The Hon'ble Supreme Court in Fazal Karim and others v. Muhammad Zaman PLD 1989 SC 764, held as under:-- "Further, if the vendor was in exclusive possession of a certain portion of joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the areas purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property as held by this Court in Muhammad Khan's case (supra)."
' In the case of Muhammad Muzaffar Khan v. Muhammad Yousaf Khan PLD 1959 (Pak.) 9, it was held as follows:-- "The vendee of a co-sharer who owns an undivided Khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor -owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers. It is difficult to see in these circumstances why the vendee of specific plots acquired from a co-owner, in an undivided Khata, does not become a co- sharer in that Khata."
13. In view of the law discussed above, Mst. Sarwar Jan validly transferred by gift the area measuring 12 Kanals 15 Marlas, which was equal to her share of 16/256 in the whole Khata, in favour of her husband Muhammad Sadiq and delivered possession of Khasra Nos. 398, 400 and 432 which were in her exclusive possession as a co-sharer in the Khata. Muhammad Sadiq plaintiff as a consequence of the gift in his favour became owner of 12 Kanals and 15 Marlas and a co-sharer to the extent of 16/256 share in the Khata and therefore, could claim declaration of ownership in that behalf His ownership and possessory rights over the said Khasra numbers, of course, will be subject to adjustment on partition, as and when asked for by a co-sharer. The contention of the learned counsel for the petitioner that share of Mst. Sarwar Jan in the suit land measuring 12 Kanals and 15 Marlas was 16/256 and, therefore, she could convey only 16 Marlas out of the suit land, is misconceived. If her share in the total holding in the Khata was 12 Kanals and 15 Marlas then she could make valid gifts of this area and mature it by delivering the area in her exclusive possession.
14. The possession of the respondent-plaintiff and his donor after and before the gift over the suit land is supported by oral as well as documentary evidence. The learned Appellate Court has rightly held that the entries in the revenue record have to be presumed correct. No evidence has been brought to rebut these presumptions. The stand taken by the petitioner-defendant that he was in possession for the last 18/20 years is not supported from the revenue record. His name does not find mention in the cultivation column of the Jamabandi right from 1964-65 and in the Khasra Girdawari. On the contrary, Mst. Sarwar Jan is shown to be in possession in the Jamabandi all along. In the Khasra Girdawari plaintiff is shown to have come in possession by virtue of gift in 1974.
The petitioner (defendant) and his witnesses have admitted in their cross-examination that after his retirement from the Army he was in employment at Lahore. Therefore, there is no escape from the conclusion that Mst. Sarwar Jan has been in possession of the suit land all along and the plaintiff became owner with possession after the gift dated 27-11-1994. The defendant in these circumstances, cannot challenge the gift.
15. I have found that the plaintiff was the lawful owner in the joint Khata and on that basis he was entitled to the possession of the suit land which was in his exclusive possession as a co-sharer. The other question that requries determination is, whether the plaintiff was dispossessed from the suit land during pendency of the suit. The learned Appellate Court after discussing the evidence on record has held that he was dispossessed from the suit land after the institution of the suit. The stand taken by the defendant was that he always remained in physical possession of the suit land but this stand is belied from the oral as well as long-standing entries in the revenue record. In addition to the oral and documentary evidence already discussed earlier, the report and the proceedings before the Local Commissioner provide conclusive proof to hold that the plaintiff was dispossessed pendente lite. It may be observed that the petitioner has himself relied on the report of the Local Commissioner vide ground (v) of the Revision Petition. The Local Commissioner found that Adalat Khan was ploughing one of the disputed fields, when he visited the spot. This Adalat Khan in his statement as D.W.2 before him stated that he was cultivating the land on the direction of Niaz Ali since Harr. I have consulted the Calendar of 1975. 1st of Harr falls.On 15th of June and its last day falls on 16th of July. Therefore, it is abundantly clear that possession was obtained some time between 15th of June and 16th of July, 1975. The suit was, however, earlier filed on 26-4-1975.
This obviously means that the plaintiff was dispossessed during pendency of the suit. Adalat Khan is servant' of the defendant and he appeared as his witness before the Local Commissioner, therefore, his deposition is beyond doubt. P.W.2 before the trial Court had also stated that when the defendant was dispossessed it was the season of Sawan, Bhaddon. This is in corroboration what Adalat Khan had stated because Sawan, Bhaddon fall after the month of Magh. It may be stated here that the learned Additional District Judge has given a clear finding of fact that the plaintiff had been dispossessed during pendency of the suit. Only alternatively, he observed that even if it was possible to assume that the plaintiff was dispossessed prior to the institution of the suit, he was still entitled to get possession under section 9 of the Specific Relief Act because his dispossession in any case was within 6 months of ,the institution of the suit. He, however, appears to have misread the cross-examination of the plaintiff to the effect that he was dispossessed 5/6 months prior to the institution of the suit. I have carefully gone through the statement of the plaintiff made as P.W.3.
He has stated in his examination-in-chief that the defendant forcibly occupied the land during pendency of the suit. In the cross-examination he unequivocally stated that the defendant forcibly occupied the land 5/6 months after the institution of the suit. It is thus abundantly clear that the plaintiff was dispossessed after the institution of the suit. Resultantly, the controversy that the relief for possession could or could not be granted under section 9 of the Specific Relief Act is merely academic in nature. It does not arise out of the facts established on the record.
16. Where a plaintiff is dispossessed during pendency of the suit, it is always open to the Court to grant him the relief of possession in a suit for declaration. Otherwise also relief for possession can always be granted in a suit under section 42 of the Specific Relief Act by allowing amendment in the plaint, as has been done in the present case. I am fortified in this view by the high authority in Karamat Ali and another v. Muhammad Younas Haji and others PLD 1963 SC 191.
17. The upshot of the whole discussion is that the decree for possession has been rightly granted by the learned Appellate Court. The impugned judgment and decree do not suffer from any illegality or material irregularity in the exercise of jurisdiction. The findings recorded by the learned Appellate Court are patently just and proper. Accordingly, the Revision Petition is dismissed with costs throughout.
18. Before parting with the case, I must observe that in the circumstances of the present case the discretionary jurisdiction under section 115, C.P.C. Could not otherwise be exercised in favour of the petitioner, because thereby the respondent-plaintiff will be deprived of his lawful ownership and possession of the land which he obtained in gift from his wife. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.