' The petitioner purchased land measuring 2 Kanals and 15 Marlas comprising Killa No,20/1 of Square No,52 in Village Depalpur, Tehsil Depalpur, District Okara, from Barkat Ali respondent No,l.
The sale was effected by means of a registered deed, dated 12-3-1977. This deed was executed with reference to Register Haqdaran Zamin for the year 1975-76 for the said revenue estate. It appears that while incorporating the said sale-deed in the Revenue Record vide Mutation No,33164 attested on 20-1-1978, only 5/6 share of the said land equal to 2 Kanals and 6 Marlas was mutated in favour of the petitioner. It further appears that the other co-owner, a sister of said Barkat Ali, later transferred the remaining 9 Marlas of land in favour of respondent No,2, a son of respondent No,1.
2. Feeling aggrieved the petitioner filed a suit for possession of remaining 9 Marlas of the land which he had purchased from Barkat Ali. The suit was resisted by the respondents with the plea that since respondent No,1 was recorded as owner 6nly to the extent of 2 Kanals and 6 Marlas, therefore, the sale in Tavour of the petitioner would take effect only to the extent of the said area.
The respondent No,2 relied on a gift made by Mst. Rashidan, the sister of respondent No,1, in favour of former on 29-12-1977. The learned trial Court framed issues. Relevant being Issues Nos.7 and 8 which are as follows:--
7. Whether the registered sale-deed, dated 12-3-1977 is result of fraud, illegal, against law and fact, fictitious to the extent that entry of 2 Kanals and 15 Marlas is made instead of 2 Kanals and 6 Marlas, therefore, inoperative against the rights of defendants? OPD
8. If Issue No,7 is not proved, whether the plaintiff is entitled to recover the possession of suit land?
' Evidence was recorded. The learned trial Court decided the said issues against the petitioner and dismissed his suit vide judgment and decree dated 1-10-1985. An appeal, filed by the petitioner also failed and was dismissed by a learned Additional District Judge, Okara, on 18-2-1986.
3. Mr. Afzaal A. Haider, learned counsel for the petitioner, argued with reference to the case of Balawal and another v. Abdul Razzaq (1987 CLC 1092), Ghulam Hussain v. The Custodian, AJ&K Government and 4 others (1986 CLC 2983) and Sukaloo and another v, Punait (AIR 1961 Madhya Pradesh 176) that the petitioner has purchased the land through a registered deed and any oral evidence to the contrary was not admissible. He further submits that with reference to the overall share of the respondent No,1 in the joint holding the sale of the entire Khasra number measuring 2 Kanals and 15 Marlas is sustainable. Mr. C.M. Sarwar, learned counsel for the respondent on the other hand argued that the learned Courts below have recorded concurrent findings of fact in favour of his clients which cannot be undone in exercise of the revisional jurisdiction.
4. 1 have gone through the record appended with the C.R. With the assistance of the learned counsel for the parties. The sale-deed, dated 12-3-1977 is on record as Exh.P.1. According to the recitals Barkat Ali sold 2 Kanals and 15 Marlas of land comprising Khasra No,52/20/1 in Village Depalpur, Tehsil Depalpur, District Okara (formerly Sahiwal) to the petitioner for a consideration of Rs,19,000, the receipt of which amount he admitted before the Sub-Registrar. The document has been executed with reference to Register Haqdaran Zamin for the year 1975-76. A copy of this document is on record as Exh.P.4. According to this document the said land formed part of a joint Khata comprised in Khewat No,222 and Khatooni No,404. The joint holding measures 65 Kanals and 4 Marlas in which Barkat Ali had 5/6 share while the remaining 1/6th share was owned by his sister Mst. Rashidan Bibi. Barkat Ali is recorded to be in Hissadari possession of this entire land. A plain reading of this document would show that Barkat All was in exclusive possession of the said Khasra number measuring 2 Kanals, 15 Marlas and that the same was not in excess of his overall shares in the entire joint Khata which exceeds 50 Kanals. Barkat Ali, respondent No,1, was therefore, competent to alienate the entire Khasra number in favour of the petitioner and the registered sale- deed, execution whereof is not denied, establishes that this entire Khasra number was alienated by Barkat Ali, respondent No,1, in favour of the petitioner. The trouble, however, arose when the sale- deed came to be incorporated in the Revenue Record vide Mutation No,3164 which is Exh.D.1 on the record. Instead of incorporating the sale-deed as it was the Revenue Authorities proceeded to incorporate the sale-deed only to the extent of 2 Kanals and 6 Marlas vide order dated 10-1-1978.
The mutation does not disclose as to whether any of the parties was present and under the law in cases of mutations in pursuance of a decree or a registered deed presence of parties is not necessary also. It was this mutation, which led to the present litigation. The mutation on the face of it is wrong and illegal. Law is well settled that a co-sharer, in exclusive possession of specific field number, can alienate the entire field number provided the area of said field number does not exceed the entitlement of the vendor in the entire joint holdings. The effect, of this sale is that the vendee steps into the shoes of the vendor and can retain possession subject to adjustment at the time of partition. It was so held in the case of Mustafa Khan and others v. Muhammad Khan and others (PLD 1978 SC (AJ&K) 75) which rule was approved by our own Supreme Court in the case of Shah Hussain v. Abdul Qayyum and others (1984 SCM R 427). It appears that in order to present a fate accompli the respondent No,1 managed alienation of the remaining 9 Marlas of land in favour of his son respondent No,2 by Mst. Rashidan Bibi. It also appears from the record that the petitioner also transferred. Some land in favour of his wife Mst. Siddiqua Begum on the basis of the said transaction in his favour. In the light of the factual and legal position of the case the transaction evidenced by Exh.P.1 cannot be held to be illegal or void. The transaction has taken legal effect and was, to remain in force subject to adjustment at the time of partition. It further appears from the record that Barkat Ali and his sister effected a partition of this Khata without including the Khasra number sold to the petitioner. It is a matter of record that the petitioner was not a party to the said partition effected by way of a family settlement i,e, a private partition given effect by the Revenue Officer through Mutation No,2852 attested on 30-3-1981. Needless to say that the partition evidenced by this mutation is .Ineffective upon the rights of the petitioner as well as respondent No,2.
5. The upshot of the above discussion is that the sale evidenced by document Exh.P.1 in favour of the petitioner is valid. The partition effected by means of Mutation No,2852, dated 30-3-1981 is of no legal consequence and of no effect on the rights of the petitioner as well as respondent No,2 who were neither parties to the said partition nor, in fact, land in suit was included therein. It is trite law that a partition cannot be effected without including the entire joint land or property, as such, the partition is bad in law being partial partition. The petitioner as well as respondent No,2 are co- sharers to the extent of lands transferred to them by the two co-sharers i,e, Barkat Ali and Mst.
Rashidan Bibi respectively. The 9 Marlas of land shall be adjustable against the other holding of Barkat Ali in the said Khata. The matter of possession will be determined as and when the said partition of the entire joint Khata takes place at the instance of any of the parties. With these observations, this civil revision is allowed. The, judgments and decrees of the learned Courts below are set aside and the suit of the petitioner is decreed to this effect that he is a valid transferee of 2 Kanals and 15 Marlas of land in the Khata measuring 65 Kanals and 4 Marlas with reference to Register Haqdaran Zamin for the year 1975-76. The sale of 9 Marlas in favour of respondent No,2 by Mst. Rashidan Bibi shall be deemed to be from the column of ownership making him an owner in the Khata to the extent of 9 Marlas. The excess of 9 Marlas in Khasra No,52/20/1 shall be adjustable from the other holding of Barkat Ali and Mst. Rashidan Bibi in the joint Khata at the time of partition as and when applied for by any of the parties. The private partition effected by Mutation No, 2852 attested on 30-3-1981 with respect to the said Khata (199) shall be of no legal effect on the rights of the petitioner as well as respondent No,2 and this Khata shall be subject to partition at the instance of petitioner or the respondent No,2 or Mst. Rashidan Bibi, the vendor of respondent No,2. The matter of possession will be adjusted as and when the said partition is applied for and taken place.
Parties are left to bear their own costs.