SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the judgment and decree of the High Court dated 12.5.1999, whereby the decree for joint possession passed by the Courts below in favour of the appellants was set aside by the High Court and their suit was dismissed.
2. The brief facts of the case are that Baqar Khan and others, appellant herein, filed a suit for recovery of possession of one-half of the land measuring 30 kanals and 15 marlas, comprising survey No.547 and 548, situate in village Niariyan, tehsil Pallandri. The respondents-defendants contested the suit alleging that joint holding of the parties was privately partitioned three generations ago and since then the parties have been in possession of their respective shares. It was further contended that the suit land had fallen to their share as a result of private partition and in alternative they claimed the adverse possession. The respondents also pleaded that they have made improvements over the suit land to the tune of Rs. 2,00,000/- to which they are entitled in case of their ejectment. They also filed a cross suit alleging that if a decree on the basis of joint possession is passed in favour of the plaintiffs-appellants out of the aforesaid two survey numbers, a similar decree to the extent of one-half share, i.e., 15 kanals 8 marlas out of survey No. 105 might be passed in their favour because they were co-sharers in the said survey number to that extent. Both the suit were consolidated by the Trial Court and after taking necessary proceedings, the suit filed by the respondents was dismissed whereas one filed by the appellants, herein, was decreed to the extent of one-half of the suit land comprising aforesaid two survey numbers, the appeal filed by the respondents before the District Judge was also dismissed. However, on appeal filed by the respondents, the High Court reversed the finding of the Courts below holding that as the joint holding of the parties was privately partitioned about three generations earlier, a decree for joint possession in favour of the appellants, herein, was not warranted by law, especially so when they were exclusively in possession of the land comprising survey No. 105 in which the respondents are co-owners to the extent of one-half share. The High Court also observed that in fact the remedy for the redressal of grievances of the parties was by way of regular partition and not by tiling a suit for possession because they were already in joint possession of the suit land.
3. Ch. Muhammad Ibrahim Zia, Advocate, the learned counsel for the appellants, has argued that the judgment of the High Court is contradictory ; on one hand it has held that the remedy for the parties is to seek the redressal of their grievance by seeking regular partition while on the other hand, they have been declared exclusive owners of the land in their possession on the basis of private partition. He has argued that a private partition did not invest exclusive title in a co-owner until and unless the joint holding is regularly partitioned by the Revenue Authorities.
4. Syed Nazir Hussain Shah, Advocate, the learned counsel for the respondents has controverted the arguments advanced on behalf of the appellants. He has argued that the High Court has rightly set aside the findings of the trial Court and the first appellate Court because it is amply proved on the record that private partition took place between the parties about three generations ago, in pursuance of which they have been in possession of separate pieces of land as indicated above. The learned counsel has cited a case reported as Muhammad Ibrahim v. Muhammad Sharif [1980 CLC 296], wherein it was held that if the land is jointly owned by the parties but they are exclusively in possession of its specific parts, that would not ipso facto prove the private partition between them but in case both the contesting parties admit private partition, their separate possession on the respective pieces of land in pursuance of private partition must be respected.
Therefore, the trial Court has committed an error in dismissing the suit of respondents for joint possession regarding the land comprising ,survey No. 195. He has contended that both the suits were consolidated and, thus, evidence in one suit would be deemed to be the evidence in the cross suit. The learned counsel has submitted that the trial Court has committed an error in holding that copy of 'misl-e-haqiat' of 1981-82 placed on the file of the suit entitled Muhammad Shafi and others v. Bagar Khan and others being unattested, does not prove the title of the respondents to the land comprising survey No. 105. The learned counsel has argued that the evidence was recorded in the suit filed by Bagar Khan and others against Dost Muhammad and others in which an attested copy of the same 'misl-e-haqiat' of 1981-82 was filed by Baqar Khan and others, appellants herein, which is also exhibited as 'PA'; in the said copy, the parties have been shown as co-owners in all the three survey numbers, including survey No.105. Therefore, the trial Court and the first appellate Court were not correct in holding that the respondents, herein, failed to prove that they were co-sharers in survey No. 105. He has further argued that even otherwise, it is amply proved on the record that the parties were co-owners in survey Nos. 547, 548 and 105 but they have been in possession of the specific survey numbers in pursuance of private partition since three generations. The learned counsel has contended that the said fact has not been controverted even by the appellants, herein, in 'their written statement filed in the suit of the respondents regarding surve' No.105. He has argued that it is specifically alleged in the suit filed by the plaintiffs-respondents that they were claiming the possession of one-half of survey No.105 as co-shareres because Baqar Khan and other appellants herein, have disregarded the private partition made by the elders of the contesting parties and filed a suit for possession; they prayed that if this Court accepts the appeal filed by Baqar Khan and others, appellants, and restores the decree for joint possession passed in their favour by the trial Court, then a decree for joint possession comprising survey No.105 may be passed in favour of Mst. Dil Jan and others, respondents, in the cross suit. He has strenuously argued that it is preposterous to suggest that the decree for joint possession in the suit filed by Baqar Khan and others is maintainable but the respondents are not entitled to decree for joint possession of the land comprising survey No.105 in the circumstances indicted above.
5. We have given due consideration to the arguments raised at the Bar and are of the view that private partition does not invest a co-sharer in possession of a part or whole of the suit land comprising survey No. 105, on the basis of the private partition, they were not entitle dot a decree for joint possession of the land comprising survey Nos. 547 and 548.
6. The next question which needs resolution is as to whether the trial Court and the first appellate Court were legally justified in holding that the plaintiffs-respondents were not entitled to a decree for joint possession of the land comprising survey No.105 on the same principle on which the suit of Baqar Khan and others was decreed by the trial Court. It may be observed that after the consolidation of cross suits, evidence in one suit would be deemed to be in other, especially so when the issues were struck jointly in both the suits. It is pertinent to point out that Ex. PA, the attested copy of the misl-e-haqiat for the year 1981-82 has been relied upon by Bagar Khan and others, appellants herein, in their suit. Therefore, this was immaterial whether the copy of 'misl-e- haqiat' of 1981-82 which was appended was the cross suit filed by Muhammad Shafi and others was tendered into evidence or the same was attested or not. It may be stated here that it isnot the case of Bain Khan and others that the respondents, herein, were not co-sharers in the suit land comprising survey No.105 as is evident from the written statement filed by them in the suit filed by' the respondents. As the learned Judge in the High Court has dismissed the suit of Bagar Khan and others, he did not attend to the alternative relief sought by the respondents, herein , that in case a decree for joint possession is passed in favour of Baia Khan and other in their suit, the suit filed by the respondents, herein, regarding survey No. 105 should also be decreed on the same principle. So far as the authority relied upon by the learned counsel for the respondents, reported as Muhammad Ibrahim v. Muhammad Sharif [1980 CLC 2961, is concerned, we are unable to subscribe to the view taken therein because in the said case reliance was placed on a case reported as Abdul Wahab Khan v. Tilakdhari Lal [AIR 1927 p.c. 2081, which had different facts; in that case the co-sharers had already been recorded as exclusive proprietors of different portions of the land in the revenue record; the application for partition of the suit land was rejected by the Collector and thereafter, a civil suit for partition was filed in the civil Court. It was under the aforesaid circumstances that the Privy Council held that the suit land had already been privately partitioned, the defendants were entered as sole owners in the revenue record and, thus, the suit for partition was not competent. As stated earlier, we are of the opinion that private partition would not extinguish the interest of a co-owner in specific survey number because he was in the possession of another survey number as a result of a private partition; there may be cases in which a co- sharer proves that his possession over a piece of land given to him in consequence of a family arrangement amounted to ouster of the other co-sharers and has ripened into ownership through prescription, otherwise exclusive possession of a co-sharer would be deemed on behalf of the co- sharers who are out of possession.
7. In the light of what has been stated above, we have come to the conclusion that the contending parties are co-sharers in all the survey numbers, namely, survey Nos. 105, 547 and 548 and they are. Entitled to a decree for joint possession against each other in the cross suits. Evidently, after the decree of joint possession in their favour, the Parties, if so advised, may seek the regular partition from the Revenue Authorities according to law.
8. Before parting with the case, it may be observed that the controversy as to whether any land comprising survey No.105 was sold to Hindu evacuee and by whom, is a question to be seen by the concerned authorities at the time of regular partition; obviously, the co-sharer who sold the land, the same would be deducted from the share of such co-sharer or co-sharers.
9. In the light of what has been stated above, we hold that the appellants and the respondents both are entitled to decrees of joint possession in their respective suits. Therefore, we restore the decree for joint possession passed in favour of Baqar Khan and others by the trial Court and set aside the order of dismissal of the suit filed by Muhammad Shafi and others against Baqar Khan and other regarding land comprising survey No. 105 and pass decree for joint possession to the extent of one-half in favour of the plaintiffs-respondents in the suit titled Muhammad Shaft and others v. Barr Khan and others. Consequently, both the suits, one filed by Muhammad Shafi and others against Baqar Khan and others and the other by Baqar Khan and others against Dost Muhammad and others stand decreed as indicated above. In the circumstances- of the case, we make no order as to the costs.