' The land in dispute was owned by one Allah Ditta who died on 19-9-1973 leaving behind Dilmeer the petitioner herein, his son Rajab All deceased now represented by respondents Nos.2 to 5, Mst.
Dullan the widow and Mst. Ghulam Fatima daughter of his predeceased son namely Nadir.
Mutation of inheritance No,3794 was attested on 18-3-1974 (Exh.P1) in favour of the two sons and Mst. Dullan to the exclusion of Mst. Ghulam Fatima. Mst. Ghulam Fatima filed a suit for possession which was decreed in her favour on 29-1-1999. She was found entitled to inherit 1/3 share from the estate of Allah Ditta i,e, the share to which her father Nadir was entitled to. On an appeal having been taken before the learned District Court by the petitioner the judgment and decree of the learned trial Court aforesaid were affirmed.
2. Learned counsel for the petitioner has contended that Mst. Ghulam Fatima was only entitled to her Qur'anic share from the estate of her father Nadir and not the entire share of her father. In support of his submission he relied on Mst. Zainab v. Kamal Khan alias Kamla (PLD 1990 SC 1051). His further grievance is that the suit for possession by a co-sharer against another co-sharer was not otherwise competent and it could at the best be a suit for joint possession. His next grievance is that while decreeing the suit, the learned trial Court granted a decree for specific Khasra numbers which could not have been done except by way of partition.
3. On the other hand, the learned counsel for respondent No,1 has vehemently supported the judgment and decree on the reasons recorded therein.
4. I have considered the submissions made by the learned counsel for the parties. The issue raised in this petition was authoritatively decided by the Hon'ble Supreme Court in the case of Mst. Zainab Bibi (supra). The effect of the aforesaid decision is that Mst. Ghulam Fatima was only entitled to her Qur'anic share from the estate of her father Nadir. Undisputedly, Mst. Dullan widow of Allah Ditta was also alive at the time of the death of the latter. Vide Mutation No,3794 she was given 1/8th share in the estate of Allah Ditta which is not disputed. The remaining 7/8 was to be distributed giving the heirs of Allah Ditta deceased. Nadir the predeceased son and the two other sons of the deceased namely Rajab and Dilmeer would be entitled to 1/3 of 7/8 share each i,e, 7/24 each and but of the share to which Nadir was entitled to Ghulam Fatima, plaintiff-respondent No,1 was only entitled to her Qur'anic share i,e, one half of 7/24 share i,e, 7/48 share in the entire estate of Allah Ditta deceased.
5. The other grievance of the learned counsel for the petitioner is also justified. The learned trial Court could not have been granted a decree for specific Khasra numbers. I have noticed that in the judgment this relief had not been granted and in accordance with rule 6 of Order XX. Of the Code of Civil Procedure a decree must agree with the judgment. Further, unless joint Khata was partitioned a decree for specific Khasra numbers could not have been passed in favour of Mst.
Ghulam Fatima. The other submission of the learned counsel for the petitioner has also merit. A suit for possession against a co-sharer is not maintainable and, therefore, the suit filed by Mst. Ghulam Fatima has to be treated as one for joint possession. Accordingly, the decree passed by the learned trial Court is modified in terms that Mst. Ghulam Fatima shall be entitled to 7/48 share in the estate of Allah Ditta deceased and her suit for joint possession stands decreed to this extent.
However, every co-sharer will have a right to seek partition in accordance with law. This revision petition is allowed in the above terms. No order as to costs.