' Taus Khan and others filed suit for declaration to the effect that they are owners in possession of the half of the land out of land measuring 2 Kanals, 13 Marlas in Khasra No,3408 situated at Village Tehkal Bahi and Mutation No,81 attested on 17-12-1931 is illegal, ineffective and inoperative upon the rights of petitioners/plahtiffs. The said suit was resisted by the respondents by filing written statement. The learned trial Court after framing as many as 11 issues, recording pro and contra evidence of the parties dismissed the suit of the petitioner/plaintiff vide judgment and decree, dated 25-1-1993. Feeling aggrieved of the said judgment and decree the petitioners filed Appeal No,9/13 of 1993 in the Court of learned Additional District Judge, Peshawar, which too was dismissed vide judgment and decree dated 24-4-1994. The petitioners have assailed the judgments and decrees of the Courts below through' revision petition in hand.
2. Mr. Attaullah Khan, Advocate, the learned counsel representing the petitioners argued that Messrs Musa Khan and Isa Khan who were real brothers in terse and were the owners of the land measuring 2 Kanals, 13 Marlas in equal shares bearing Khasra No,3408. Musa Khan sold land measuring 1 Kanal and 17 Marlas to Muhammad Shuaib, Muhammad Ayub, Abdur Rehman and Muhammad Yousaf vide sale-deed No,484, dated 21-2-1929 registered in the Office of Sub- Registrar, Peshawar. One the basis of sale-deed Mutation No,81 was attested on 3-12-1931 whereby land measuring 2 Kanals and 13 Marlas was wrongly mutated in favour of abovementioned persons.
3. On 9-4-1985, Isa Khan gifted half of the land out of land measuring 2 Kanals, 13 Marlas, to his son Taus Khan and his grandson Halim vide Mutation No,691 which was attested in the same day i,e, 9- 4-1985.
4. Having come to know about the illegal transfer of land measuring 2 Kanals, 13 Marlas in favour of respondent, the petitioners filed suit. The learned trial Court decided all the issues in favour of the petitioners/plaintiffs except Issues Nos.1 and 10 and dismissed their suit on the ground that the possession was not delivered to the donees, but the learned trial Court failed to appreciate that the petitioner/plaintiff No,2 Halim 'was minor and in his case delivery of possession was not sine qua non. So far as the case of petitioner/plaintiff No,1, Taus is concerned, the delivey of possession to him as per section 6 of the Muhammadan Law was also not necessary because the property was unpartitioned and the same could be regulated after the partition takes place. Regarding the judgment/decree of the Appellate Court, it was argued that the learned Additional District Judge has justified the transfer of 2 Kanals, 13 Marlas in favour of respondents on the ground of possession alone subject to adjustment in other joint properties but there is nothing available on record that Isa Khan and Musa Khan had other joint properties also in which the adjustment to Isa Khan can be granted, therefore, the judgment of the Appellate Court is also not based on proper appreciation of evidence and needs reversal.
5. On the other hand Miss Nusrat Yasmin the learned counsel representing the respondents argued that Yousaf was the owner of property in dispute. On his death the property devolved upon Musa Khan and lsa Khan his sons. Private partition took place between two brothers and Musa Khan was given Khasra No,3408. He was in possession of the said property since 1938-39 as is clear from Exh.P.W.1/D-3. Likewise Exh. P. W.I/D-14 , Exh. P.W.1/D-15 and Exh. P.W . 1/D-16 Goshwara Mulkiat show that there is sufficient joint/unpartitioned property in the names of Isa Khan and Musa Khan and Musa Khan had every right to sell a portion of his land to respondents.
6. It was also argued that the Courts below have concurrently dismissed the suit as well as appeal of the petitioners and there is no illegality in the impugned judgments, therefore, the same cannot be interfered with while exercising revisional jurisdiction.
7. I have heard the learned counsel for the parties and perused the record.
8. It is admitted position that one Yousaf was owner of huge property. On his death the property devolved upon his two sons namely Musa Khan and Isa Khan. Fard Jamabandi for the year 1938-39 Exh.P.W.1/D-3 shows that Musa Khan was in possession of Khasra No,3408. His possession over the property continued till the same was sold to respondents. Perusal of Exh.P.W.1/D-14 at page 34 of the original file shows that Musa Khan and Isa Khan were joint owners in equal shares in two Khatas (the numbers of which have not been given). In one Khata land measuring 26 Kanals, 3 Marlas stood jointly in the names of Musa Khan and Isa Khan in equal shares. Each one of them was, therefore, owner of 13-1/2 Kanals and 1-1/2 Marlas. Although the details of land sold by him in the said Khata are not available on record and the petitioners have also not bothered to clarify as to whether any joint property is still in the share of Musa Khan in that Khata.
' The other Khata consisting of land measuring 19 Kanals, 14 Marlas in which each one of them owned land measuring 9 Kanals, 17 Marlas. The land in dispute comprising Khasra No,3408 is situated in this Khata which, as mentioned above, consists of land measuring 19 Kanals, 14 Marlas .
Out of his share i,e, 9 Kanals 17 Marlas Musa Khan sold 3 Kanala, 3 Marlas through Bandobasti sale, whereas he sold 2 Kanals, 13 Marlas through Mutation No,81 (disputed mutation) to respondents.
Having sold land measuring 5 Kanals, 16 Marlas, Musa Khan was, still left with land measuring 4 Kanals 1 Marla in the said Khata. This document also show that Musa Khan has further sold land measuring 2 Kanals, 5 Marais and land measuring one Kanal 16 Marlas is still left as his share which is in his possession. Fard Jamabandi for the year 1929-30, Exh.P.W.1/D-1 shows that Musa Khan, vendor, was in Hissa Dari possession of entire. Khasra No,3408. If Musa Khan has sold land measuring 2 Kanals, 13 Marlas in cultivation column in favour of respondents in Khasra No,3408 of which he was having possession, then he has committed no illegality since no partition between co-sharers had taken place, therefore, Musa Khan was within his rights to sell land in specific Khasra number which was in his possession out of the joint property. The sale/alienation was subject to adjustment at the time of partition.
9. In Feroz v. Sher and others (PLD 1985 SC 254) it was held:-- "It was held in Saad Ullah v. Ibrahim (AIR 1952 Lah. 518) relying on Muhammad Amin v. Kamar Das (AIR 1924 Lah. 293) that although a co-sharer in appellate land not being the sole owner of the land cannot sell the full proprietary rights in the land, a sale by him holds good to the extent of conveying the rights which he can sell including the right to retain possession till partition and that a transferee from such co-sharer has the same rights in the land that his transferor had and is entitled to undisturbed possession of the land as long as the Shamilat is not partitioned. Similar view was expressed in Sukh Dew v. Parsi (AIR 1940 Lah.473) and it was further added that a co- sharer in possession of a portion can transfer that portion subject to adjustment of the rights of the other co-sharers therein at the time of the partition and that the other co-sharers, right will be sufficiently safeguard if they are granted a decree by giving them a declaration that the possession of the transferee in the land in dispute will be that of the co-sharers subject to adjustment at the time of partition. In Muhammad Muzaffar Khan v. Muhammad Yousuf Khan (PLD 1959 SC 9) also, this Court observed:-- ' The vendee of a co-sharer who owns an undivided Khata in common with another, is clothed with the same rights as 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'."
10. In a similar case Muhammad Sharif and 3 others v. Ghulam Hussain and another (1995 SCM R 514) it was held:-- "The share of Abdul Ghani in the Khata exceeded the area sold by him and, therefore, in view of the principle laid down in the judgment of this Court in Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 SC (Pak.) 9), he was within his right to transfer the specific Khasra numbers in his possession to the transferee, who, in his turn, was entitled to retain possession till partition of the entire joint property. Respondent No,1, no doubt, in his written statement claimed exclusive ownership through private partition between the co-sharers but that plea has not been accepted by all the Courts below. The learned trial as well as the first Appellate Court failed to consider the legal aspect enunciated in the above-quoted judgment of this Court had passed the declaratory decree. The High Court, however, by upsetting the same held the transferee to be stepping into the shoes of his transferor Abdul Ghani to the extent of his ownership rights in the entire joint property, no more and no less. The rights of the plaintiffs qua their ownership rights in the entire joint property are not affected through the judgment of the High Court."
11. So far as the gift dated 9-4-1985 by Isa Khan in favour of his son Taus Khan and his grandson Halim vide Mutation No,891 attested on 9-4-1985 is concerned, the same is valid and could not be discarded on the ground of non-delivery of possession. It is worth mentioning that Halim, grandson was minor at the time of the gift, therefore, as per dicta laid down in Hakim Khan v. Aurangzeb and another (PLD 1975 Lahore 1170) and Muhammad Afzal and another v. M'st. Khurshid Begum and 3 others (PLD 1975 Peshawar 24) the delivery of possession to minor was not a sine qua non for completion of gift. Likewise under section 160 of Muhammadan Law by D.F. Mulla, delivery of possession of un-partitioned property could be regulated and validated by subsequent delivery of possession after the partition takes place.
12. The above discussion leads me to an irresistible conclusion that the Courts below have properly appreciated the evidence as well as the law applicable to the case. Neither any non-reading or misreading of evidence nor any material irregularity nor any jurisdictional error or defect could be pointed out, therefore, I am not inclined to interfere with the impugned judgments and decrees.
' Resultantly, the revision petition in hand is dismissed with no order as to costs.