The relevant facts leading to the filing of this revision petition are that one Muhammad Zaman, resident of Kotha Bangash Khel, Tehsil and District Bannu, owned two Kanals of land within the limits of his village, out of which he sold one Kanal and seven Marlas to one Jan Khan while the remaining thirteen Marlas was sold to Atlas Khan and Matan Khan, son of the said Jan Khan through an unregistered sale-deed dated 28-12-1939. Atlas Khan through a registered exchange deed No.357, Bahi No. 1, Jild No.401 attested on 12-5-1982 transferred 15/1-2 Marlas of land to one Faqir Zaman son of Gul Haider. The exchange was recorded as a mutation bearing No.5450 and attested on 10-8-1982. The legal heirs of Matan Khan brought a suit against Atlas Khan and seven others in the Court of Senior Civil Judge, Bannu on 2-10-1991 for a declaration that they are entitled to half share in the land which was transferred through the aforesaid exchange deed and that the Mutation No.5450 recorded on the basis of the exchange deed was liable to be cancelled. Prayer for permanent injunction restraining the respondents from the suit property as well as possession through partition of the plaintiffs' share was also made. The suit was dismissed mainly on the grounds that it was not brought within the time limit prescribed therefore and that the sale-deed, dated 28-12-1939 did not create any right being unregistered. An appeal was preferred against the judgment and decree of the Senior Civil Judge which was allowed and the District Judge reversed the findings of the trial Court and decreed the plaintiffs' suit by judgment and decree dated 9-1- 1994, which has now been impugned in this revision petition.
2. Learned counsel for the petitioners contended that the land transferred through the exchange deed by Atlas Khan to Faqir Zaman did not comprise exclusively of the land purchased through sale-deed, dated 28-12-1939 but included the land to which he was entitled to as a legal heir of Jan Khan. In this context it was argued that the one Kanal and 7 Marlas of land sold to Jan Khan and that the 13 Marlas of land subsequently sold to Atlas Khan and Matan Khan was one block in which the total share of Atlas Khan comes to 15/1-2 Marlas. It was also argued that the suit was time- barred as it was filed on 2-10-1991 whereas the exchange mutation questioned therein was attested on 10-8-1982.
3. In reply, it was argued on behalf of the respondents that the land sold to Jan Khan and. That sold to Atlas Khan were two pieces of land and that Atlas Khan could not on his own consolidate the two together and transfer his share out of the land so consolidated. As for' limitation, it was contended that as the plaintiffs-respondents were not a party to the exchange deed nor were they aware of the same until only three months before filing of the suit, it was not time--barred.
4. The Appellate Court found that under the sale-deed, dated 28-12-1939, though unregistered, the land measuring 13 Marlas was sold to Atlas Khan and Matan Khan in equal shares. This finding was based on the admission by D.W.3, Sabir Khan, special' attorney for the petitioners-defendants, who had stated that the land was jointly purchased by the two brothers. In the wake of this admission on behalf of Atlas Khan, it cannot be disputed that Matan Khan was entitled to half of the land purchased through the unregistered sale-deed: It was probably on account of the clear admission made by D.W.3 that the learned counsel for the petitioners did not attack the findings of the Appellate Court on this issue.
5. The whole of the two Kanals which is the subject-matter of dispute between the parties was originally owned by Zaman Khan. There is a controversy between the parties, which cannot be resolved on the basis of evidence recorded,--as to whether the land sold to Jan Khan and the one sold to his two sons form part of the same block or are separate pieces of land. However, it was pointed out by the learned counsel for the petitioners that this question could be resolved by appointing a local Commissioner to visit the site and to report as to the physical status of the land.
But the determination of that question is not essential for the disposal of the revision in hand as it is not disputed that the source of title of the contesting parties to the two pieces of land is different.
The one Kanal and seven Marlas is an ancestral property of the parties and it is stated at the bar that there are suits pending between the parties regarding partition of other ancestral properties.
On the other hand, the thirteen Marlas was owned by Atlas Khan and Matan Khan as purchasers. It is not the case of Atlas Khan petitioner that the ancestral properties had been partitioned in accordance with law and as -such the legal heirs of Matan Khan are joint owners in every inch of such property. The partition of the ancestral property is to be undertaken separately then the purchased property owned b1 Atlas Khan and Matan Khan. Besides, D.W.3 in his cross-examination hay admitted that the disputed property-, measuring 13 Marlas, was purchased from Zaman Khan by Matan Khan and Atlas Khan in equal shares. He further conceded that the disputed property, which has' not been partitioned, is owned by Atlas Khan and legal heirs of Matan Khan deceased in equal shares. Reference to the sale-deed, dated 28-12 1939 suggests that the 13 Marlas land sold to the two brothers was a separate Chunk of land as the vendor bad declared that he was owner in possession thereof. Petitioner Atlas Khan without the consent of other owners could not on his own transfer a portion of the jointly owned land. Thus, it follows that without having partitioned the 13 Marlas of land purchased through sale-deed, dated 28-12-1939, Atlas Khan was not entitled to dispose of the whole of it through the impugned exchange deed.
6. As far the question of limitation is concerned, suffice it to say that the property which was disposed of through the exchange deed was jointly owned by the petitioner Atlas Khan and the plaintiffs-respondents and undisputedly the exchange had taken place without the knowledge of the plaintiffs and thus the period of limitation would be reckoned against the plaintiffs from the date they gained knowledge of the transaction, which according to them was three months prior to the filing of the suit. There is no evidence to contradict this stance of the plaintiffs. The suit was thus brought within time.
7. For the reasons aforesaid, the revision petition has no merit and is dismissed with no order as to costs.