This appeal is directed against the order 16-12-1967 whereby the learned Additional District Judge, Jhang accepted the appeal and remanded the cast under rule 23 of Order XXLI, C. P. C. To the trial Court for decision on the issues framed by him on merits.
2. The land in dispute allegedly belonged to appellants Nos, 1 to 7 who had sold it to Sultan-Khan the respondent through a registered sale-deed dated 16-2-1944. According to him the mutation was not yet sanctioned that the vendors took an opportunity to pass on the property by way of sale to some other persons. The property later on changed many hands and ultimately the plaintiff- respondent filed a suit - for declaration that he was an owner in possession by way of a sale. The suit was contested and it was consequently dismissed by the trial Court on the ground that the suit in the present form was not maintainable. The plaint if respondent, therefore, went in appeal and the learned appellate Court accepted it on the ground that the land in dispute was a part of an undivided Khata and the respondent was a co-sharer in it. It was held that possession of one co- sharer on the joint Khata was possession on behalf of all and in view of this position the respondent could file a suit for declaration only. The preliminary issue whether the plaintiff was in possession of the suit land and the suit was maintainable in its present form vas decided in his favour. The learned appellate Court, therefore, framed 6 issues on merits and referred them to the trial Court for determination.
3. The main question in this appeal rests on the maintainability of the suit. It comes in the statements of Khan P. W. 1 and Sultan himself P. W. 2 that the plaintiff-respondent was in possession through his brother Ramzan. Murad, one of the defendants as P. W. 3, has admitted in cross-examination that Ramzan cultivates the land in dispute. D. W. 1 Allah Yar Patwari admits in cross-examination that Sultan plaintiff-respondent is a co-sharer in the Khata in which the land in dispute is situated and that it is an undivided land. From this evidence it is clear that the land in dispute is the part of a joint khata and that the plaintiff respondent is an owner in it and that his brother Ramzan cultivates it. This much of the evidence is sufficient to show that the plaintiff - respondent, being in constructive possession, need not have sued for possession. Therefore, the suit in the present form is maintainable. In the circumstances the learned Additional District Judge was justified in holding that the appellant was a co-sharer in the land in dispute and that the suit for a bare declaration was in order.
4. For the reasons stated above there is no force in the appeal and the same is dismissed with costs.