' Mst. Nawab Bibi widow, Muhammad Hanif and Mst. Rasul Bibi, son and daughter of Allah Rakha, Barkat and Muhammad Hussain both sons of Hayat Muhammad, respondents-plaintiffs, alongwith Khalid Pervaiz son of, and Mst. Shahnaz Begum and Mst. Kausar Begum daughters of Muhammad Tufail, and Rashid Ahmad son of Allah Rakha, respondents were co-sharers in the land measuring 3 Kanals, 10 Marlas in Khewat No,81, Khatooni No,199, Khasra No,529, situated at Mauza Bhingranwali, G.T. Road, Tehsil and District Gujranwala. Defendant No,2/respondent No,6 herein, on his own behalf and being the general attorney of Mst. Shehnaz and Mst. Kishwar Begum daughters of Muhammad Tufail transferred 1/3 of land measuring 17-1/2 Marlas from the above stated joint Khata with specific boundaries vide Sale-deed No,2126 dated 16-3-1992 in favor of Muhammad Anwar, defendant No,1/petitioner herein. This sale has been challenged by Mst. Nawab Bibi, widow, Muhammad Hanif, son and Mst. Rasul Bibi, daughter of Allah Rakha, Barkat Ali and Muhammad Hussain sons of Hayat Muhammad, respondents, by filing a civil suit for declaration and permanent injunction on the ground that all the joint owners were in possession of the land. It was also asserted that the defendant No,2 himself being attorney of defendants Nos.3 and 4 sold their share of land without partition. No family partition has been effected between the co-sharers and non co-sharer can alienate any specific portion therefrom. They prayed for a decree to the effect that the registered sale-deed dated 16-3-1992 in favor of Muhammad Anwar, defendant No,1/ petitioner be declared as void and ineffective against their rights, and as a consequential relief they prayed that the defendants be restrained from raising construction and getting possession without partition.
2. Muhammad Anwar, defendant No,1/ petitioner, the vendee contended in his written statement that the land measuring 13-1/2 Marlas the description of which has been given in the headnote with specific boundaries was in possession of defendants Nos.2 to 6 which they sold to him. Further contended that the respondents-plaintiffs have sold a plot measuring 10 Marlas from the disputed Khasra No, from their Hissadari possession to Muhammad Younas son of Hadaytullah. It was further asserted that defendants Nos.2 to 4 were competent to sell the disputed land measuring 17-1/2 Marlas alongwith boundaries from the disputed Khasra which was in their possession. Four- boundary wall and a room were constructed by defendants Nos.2 to 4 on the disputed plot of 17-1/2 Marlas. Defendants Nos.2 to 4/respondents Nos.6 to 8 herein, filed their written statement. They asserted that they were in possession of the specific portion of land measuring 17-1/2 Marlas in the disputed Khasra and they .Alienated the same to defendant No, 1/petitioner. An application for initiating contempt proceedings was also filed by the respondents plaintiffs against Muhammad Anwar and Khalid Pervaiz on the ground that in violation of the stay order they had started construction on the disputed land.
3. From the divergent pleadings of the parties, following issues were framed by the learned trial Court:--
(1) Whether the plaintiffs have no cause of action against the defendants Nos.2 to 4? OPD
(2) Whether defendants Nos.2 to 4 were in possession of specific portion of land measuring 17-1/2 Marlas in disputed Khasra number? OPD.
(3) Whether plaintiff sold plot measuring 10 Marlas from disputed Khasra Number to Muhammad Younas? OPD
(4) Whether defendants Nos.2 to 4 had already constructed a room and four boundary wall on land measuring 17-1/2 Marlas specific portion of disputed Khasra number? OPD.
(5) Whether disputed Khasrah number is jointly owned and possessed by its owners? OPP
(6) Whether sale made by defendants Nos.2 to 4 in favor of defendant No,1 of land measuring 17- 1/2 Marlas on the description of four boundaries is illegal and void? OPP
(7) Whether. Defendants Nos.1 and 2 violated stay order and, raised construction on disputed land?
OPP.
(8) Relief.
4. Muhammad Hussain, plaintiff No,5 appeared as P.W.3. Copy of registered sale-deed in favor of defendant No,1 Muhammad Anwar, Exh.P.l, copies of Register Haqdaran Zamin for the years 1986-87 and 1990-91 Exh.P.2 and Exh.P.3, letter regarding construction plan Exh.P.4 and construction plan Exh.P.4/1 were produced by the plaintiffs as documentary evidence. On behalf of the defendants, Muhammad Anwar, defendant-petitioner appeared as D.W.1 and also produced Rafique son of Inayatullah as D.W.2.
5. The learned Civil Judge on the basis of Register Haqdaran Zamin for the year 1986-87 Exh.P.2 observed that Khasra No,529 measuring 3 Kanals and 10 Marlas is jointly owned by the plaintiff and defendants Nos.2 to 5. It was also observed that the description of the four boundaries in the registered sale-deed has been given. The partition has not taken place. The vendors were owners of 1/4th share. Therefore, the learned Civil Judge proceeded to decide Issues Nos.1 and 2 in favor of the respondents-plaintiffs. On Issue No,3, the learned Civil Judge observed that no registered sale- deed or mutation has been adduced by the petitioner-defendant to hold the plaintiffs- respondents sold 10 Marlas of land from the disputed Khasra number to Muhammad Younas.
Finding on Issue No,3 was recorded against the petitioner-defendant. On Issue No,5 the learned Civil Judge proceeded to observe that disputed Khasra number is not jointly possessed by the parties, who are co-owners in the disputed number. As far as Issue No,6 is.Concerned, the learned Civil Judge proceeded to hold that registered sale-deed in favor of defendant No,1/petitioner executed by defendants Nos.2 to 4 is illegal to the extent of description of specific four boundaries in the sale-deed. Regarding violation of the stay order, it was observed that there is no evidence from the side of the respondents-plaintiffs to hold that the petitioner-defendant No,2 violated the order of the Court, therefore, the issue was decided against the plaintiffs. On the basis of the finding on the above issues, the learned Civil Judge decreed the suit to the extent that registered sale- deed to the extent of description of four-boundaries is declared void and ineffective against the rights of the plaintiffs. The construction already existing on the portion which is now in possession of defendant No,1, therefore, the defendants could not be restrained from raising construction. As far as the alienation is concerned, defendant No,1 has right to alienate his entitlement from the disputed Khasra number, and to this extent the suit was dismissed vide judgment and decree dated 26-7-1994. The appeal filed by the respondents-plaintiffs was accepted by the learned Additional District Judge, Gujranwala vide his judgment and decree dated 24-6-1996. The learned Additional District Judge upset the finding of the learned Civil Judge by observing that:-- "The consideration which weighed with the learned lower Court in dismissing the suit was that somehow the respondent No,1 was in possession of the suit property and had raised construction thereon. Be it so as it may but this was not the core issue. The issue requiring determination was whether respondents Nos.2 to 4 were in possession of the suit property and thus validly alienated the same in favor of respondent No,l."
6. The learned Judge observed that respondents Nos.2 to 4 had failed to prove that they were in exclusive possession of the land measuring 17-1/2 Marlas which was sold to Muhammad Anwar, petitioner-defendant and the possession could have not been handed over by the vendors to the petitioner-defendant. It was further observed that the aforesaid property measuring 3 Kanals, 10 Marlas was jointly owned by the plaintiffs and defendants Nos.2 to 4 and thus the defendants Nos.2 to 4 had no legal right to alienate any specific portion of the same to defendants Nos.1-petitioner.
Consequently the findings recorded by the learned lower Court were reversed and the judgment and decree of the trial Court was set aside. The suit of the respondents-plaintiffs was decreed vide judgment and decree dated 24-4-1996.
7. Learned counsel for the petitioner contends that a well-reasoned judgment of the learned Civil Judge has been set aside by the First Appellate Court by misreading of the evidence. Further contends that the land was partitioned between the parties and the vendors-defendants Nos.2 to 4 were in exclusive possession of the suit-land and they were competent to sell the land which they lawfully alienated in favor of the petitioner.. Further contends that under the law a co-sharer can sell the specific portion of the joint property. The only remedy lies for the aggrieved person and the other co-sharers was that they-could bring a suit for partition and no decree for declaration could be passed even without considering that the suit-land was joint one and the vendors were not in possession of the specific portion.
8. Conversely, the learned counsel for the respondents contends that the property measuring 3 Kanals and 10 Marlas was joint between the vendors and the plaintiffs. No co-sharers was in exclusive possession of any portion of the Khasra No,529 measuring 3 Kanals and 10 Marlas, therefore, sale made by defendants Nos.2 to 4 in favor of petitioner Muhammad Anwar with specific boundaries through the impugned sale-deed dated 16-3-1992 was illegal. The learned counsel has placed reliance on the case reported as Ali Gohar Khan v. Sher Ayaz and others (1989 SCM R 130). Further contends that the vendors were not in possession, therefore, they could have not delivered possession to vendee Muhammad Anwar of 17-1/2 Marais of land with specific boundaries. The status of Muhammad Anwar was of trespasser. It is further contended that the vendors have not appeared in the witness-box, therefore, adverse inference should be drawn against them.
9. It is admitted position on the record that the plaintiffs and defendants Nos.2 to 4 were co- sharers/co-owners of the land in Khasra No,529 measuring 3 Kanals, 10 Marlas. No co-sharer was in exclusive possession of the land when the disputed sale-deed 16-3-1992 was executed on behalf of Shahnaz Begum, Kishwar Begum and Rashid Ahmad in favor of Muhammad Anwar, petitioner. The stand taken by the plaintiffs-respondents is established from the document, Register Haqdaran Zamin, for the years 1986-87 and 1990-91 Exh.P.2. The Jamabandi for the year 1986-87 shows that Mst. Nawab Bibi, Muhammad Hanif, Rasul Bibi, Barkat Ali, Muhammad Hussain, Khalid Pervaiz, Mst.
Shehnaz Begum, Kishwar Begum, son and daughters of Muhammad Tufail, and Rashid are entered in the column of ownership of Khasra No,529 measuring 3 Kanals, 10 Marlas. The learned Civil lodge observed that 1 Kanal, 10 Marlas is Ghair Mumkin, but he has failed to read this document whereas in column of 'cultivation' the entry is "URDU TEXT". In this view of the matter, the defendant Khalid Pervaiz, Shahnaz Begum and Kishwar Begum were not entitled to transfer the land measuring 17- 1/2 Marlas and specific boundaries in favor of Muhammad Anwar petitioner. The stand taken by petitioner Muhammad Anwar and defendants Nos.2 to 4 was that the property has been partitioned between the co-owners. No proof of partition has been placed on the record. It was further alleged that plaintiffs themselves sold the plot measuring 10 Marlas in favor of Muhammad Younas, but no proof of transfer of the land by the plaintiffs was produced on the file. The learned Additional District Judge rightly observed that the core issue was whether the vendors Khalid Pervaiz, Mst. Shehnaz Begum and Mst. Kishwar Begum were in exclusive possession of the land measuring 17-1/2 Marlas sold to Muhammad Anwar petitioner. The answer was in the negative.
Since both the plaintiffs and the defendants were co-sharers in the suit-land measuring 3 Kanals, 10 Marlas in Khasra No,529, defendants Nos.2 to 4 could not have transferred the land through the impugned sale-deed dated 16-3-1992 in favor of Muhammad Anwar. In case of Kishori Lal and others v. Khair Din and others (AIR 1937 Lahore 288), the rights of co-owners were protected by allowing the civil revision petition by setting aside the order of the Appellate Court and restoring the original order of the Civil Judge whereby the co-sharer was restrained from building on joint land pending suit, and it was observed:-- "In cases of disputes between co-sharers, it is of the utmost importance that the status quo ante should be maintained pending decision of the suit, and that none of the co-sharers should be allowed to deal with joint property in a manner which is likely to render the suit infructuous or create other complications."
' This view was endorsed by the Hon'ble Supreme Court in case reported as Ali Gohar Khan v. Sher Ayaz and others (1989 SCM R 130) and the rights of the co-sharers as a rule were held to be protected in the following manner:-- "In case of joint immovable property, each co-sharer deemed to be interested in every inch of subject-matter irrespective of quantity of his interest--One co-sharer cannot be allowed to act in a manner which constitutes an invasion on the right of other co-sharer--Co-sharer in possession of a portion of joint property cannot change nature of property in this possession unless partition takes place by metes and bounds."
' Exception to this general rule was taken by the Hon'ble Supreme Court in case of Afsar Khan and others v. Mst. Khanum Jan and others (1981 Law Notes (S.C. (288), wherein it was observed that Court may allow one of the co-sharers to raise construction, subject to certain conditions particularly when alteration in use of a part of property may enhance the value of the property.
10. Now question arises that when the co-sharer is protected and, cannot be allowed as a rule to change the character of the suit-land so that rights of the other co-sharers may not be infringed, then the land which is in possession of the co-sharer is sold within his share can be protected and the purchaser can be declared to have the entitlement of the land purchased by the purchaser.
This proposition came up for consideration in case of Abdul Latif v. Abdul Qayyum (PLD 1992 Pesh.
103) and it was held that "the co-sharer could sell a specific portion from the joint land and deliver possession to transferee after separation of the portion sold, by carving out a 'Tatima'."
11. The Azad Jammu and Kashmir High Court in case of Asghar Bi and 3 others v. Settlement Officer, Kotli, and 2 others (PLD 1992 Azad J&K 29) endorsed this view that "vendor being co-sharer was not in exclusive possession of land in question, therefore, he could not alienate specific land in favor of vendee, but when vendor in exclusive possession, could have alienated same through the modes recognized by law--Alienation of land through consent decree was not warranted..."
12. The prosecution of the rights of the co-sharers, vis-a-vis their rights to transfer the land in their possession within their share came up for consideration in case of Akhtar Nawaz Khan and others v. Danial Khan and others (NLR 1995 SCJ 159), the majority decision of the Hon'ble Supreme Court was that every co-sharer in possession of joint property to extent of his share in entire joint property has a right to make use of it in manner he likes without hindrance by other co-sharers. If they feel aggrieved by conversion of user by co-sharers; their remedy is to go for partition and get their share separated. Contra Minority view was scribed by mylord Mr. Justice Saeeduzzaman Siddiqui, as mylord then was and it was observed:-- "Construction on joint property by one set of co-owners without permission of other set of co- owners. Co-owners not agreeing to construction would be entitled to temprary injunction in their suit for declaration and permanent injunction to stop construction on joint property by other set of joint owners."
13. On the touchstone of the above case-law, it is to be seen whether the petitioner is a co-sharer and the respondents may be directed to file a suit for partition. The defendants-respondents Khalid Pervaiz, Mst. Shehnaz Begum and Mst. Kishwar Begum were not in possession of specific Khasra numbers and, therefore, they were not entitled to transfer the plot with boundaries in favor of Muhammad Anwar. Therefore, they could not lawfully alienate the same in favor of Muhammad Anwar.
No misreading or non-reading has been done by the First Appellate Court. No exception can be taken to the judgment and decree dated 24-4-1996 passed by the learned Additional District Judge nor there is any illegality or irregularity committed by him. No question of illegal assumption of jurisdiction has been pointed out by the learned counsel for the petitioner in the judgment of the learned First Appellate Court. Resultantly, this revision petition fails and the same is dismissed.