' MUHAMMAD NAWAZ ABBASI, J.-This appeal by the leave of the Court has been derected against the consolidated judgment, dated 16-5-1994 passed by a learned Single Judge of Lahore High Court in a Regular Second Appeal (R.S.A, No,167 of 1975) arising out of the cross suits.
2. The leave in this appeal was granted vide order, dated 24-3-1997 as under:-- "The dispute relates to Haveli, measuring 24 Marlas, situated in Khasra No,985, Abadi Akwal, Tehsil Talagang. The property in suit was admittedly owned by one Muzaffar Khan, predecessor-in- interest of respondents Nos.11 to 14. This property was sold in favour of Hayat Muhammad and others under unregistered sale-deeds Exh.D-1 to D-10, on 12-3-1995. Respondents Nos.11 to 14.Legal heirs of Muzaffar Khan, filed a suit on 14-9-1968 against Hayat Muhammad and Mst. Bakhat Begum for possession of the suit-land. During the pendency of this suit, 14 Marlas out of the suit-land were sold to the petitioner Mst. Malkani wife of Ghulam Rasul, vide registered sale-deed, dated 25-1- 1969. On coming to know of the aforesaid sale, the respondents Hayat Muhammad and Mst. Bakhat Begum filed a suit against the legal heirs of Muzaffar Khan and Mst. Malkanai on 3-3-1969, claiming declaration of title to thesuit-land on the ground that sale during the pendency of the suit was not valid.
' The trail Court consolidated both the suits and decreed the suit filed by Hayat Muhammad and Mst. Bakhat Begum and dismissed the suit filed by respondents Nos.11 to 14, the legal heirs of Muzaffar Khan.
' In appeal, the learned Additional District Judge reversed the decree passed by the trial Court and allowed the appeal. Against the judgment of the First Appellate Court, second appeal was filed, which was allowed by the learned High Court and the judgment and decree of the First .Appellate Court was set aside and that of the Trial Court was restored. Hence, this petition.
We have heard the learned counsel. In view of the conflicting judgments by the Courts below; we are inclined to grant leave to consider whether in the facts and circumstances appearing on the record the learned High Court was justified in reversing the judgment and decree passed by the learned First Appellate Court and whether section 50 of the Registration Act, relied upon by the learned counsel, had any bearing on the case."
3. The respondents Nos.11 to 14 were proceeded ex parte in the second appeal and the contest in the High Court was between respondents Nos.1 to 10 and the present. Appellant. Learned counsel for the appellants has contended that the respondents were claiming ownership of Haveli on the basis of unregistered sale-deeds (Exh.D.1 to Exh.D.10) which pertained to the sale of only an area of about 11 Marlas forming part of the said Haveli whereas the retaining area of the Haveli was in their possession as licensee but learned Judge in the High Court through misreading of the evidence held that the respondents were exclusive owner of Haveli. Learned counsel without disputing thetitle of the respondents to the extentof area mentioned in the unregistered sale-deeds, submitted that the appellant purchased an area of 14 Marlas jn the Haveli through the registered sale-deed from successors-in-interest of the original owner, therefore, with the exclusion of said area, the suit of the respondents to the extent of remaining area, could be decreed and the present appeal may be decided accordingly.
4. Learned counsel for the respondents, on the other hand, has submitted that the decree was passed in the suit for declaration filed by predecessor-in-interest of respondents Nos.1 to 10 and notwithstanding the purchase of only an area of about 11 Marlas through the unregistered sale- deeds, the respondents being in uninterrupted continuous possessionof the Haveli since 1955, would be deemed to be its exclusive owner and the partial sale of the land of Haveli by the successor-in-interest of the original owner through registered sale-deed to the appellant was invalid and ineffective to their rights and therefore, the suit for possession filed by the appellant without a valid title in the land of Haveli, would not be maintainable. The learned counsel argued that in addition to the parties in the suits, there were also other claimants of the Haveli who were not joined in the litigation and therefore, no order adverse to their interest depriving them from the legitimate right in the property, could be passed behind their back and added that appellant was claiming joint ownership in the Haveli through respondents Nos. 11 to 14 who were proceeded ex parte in the appeal, therefore, the appellant having no independent right was rightly non-suited.
The learned counsel vehemently argued that even if the sale of land to the extent of an area mentioned in the registered sale-deed in favour of appellant is held valid, still the suit for possession without partition of the property, would not be maintainable.
5. The perusal of unregistered sale-deeds Would show that Hayat Muhammad, predecessor-in- interest of respondents Nos.1 to 10 purchased only an area of about 11 Marlas out of an area of 24 Marlas of the Haveli and the said respondents have not brought any other evidence oral or documentary, on record to establish their title over the Haveli in full by purchase or through adverse possession. The respondents were setting up their title against the true owner taking the plea of adverse possession and it is settled law that the person claiming of ownership through adverse possession has to prove that when lawful possession was converted into adverse possession. The continuous and peaceful possession for any length of time is not a hostile possession and cannot be termed adverse to the title of true owner. The respondents pleaded in the suit for declaration as well as in the written statement, to the suit for possession that they having purchased the land underneath the Haveli had acquired a valid title, therefore, it would become impossible for them to succeed in the alternate plea that their possession being an open and continuous, was hostile and they with the efflux of time had matured their title through adverse possession. The respondents having taken conflicting plea of ownership by purchase and by adverse possession pleaded approbate and reprobate whereas the case of the successor-in- interest of the original owner on the other hand was that respondents being licensee were in permissive possession of the Haveli. and in this view of the matter, there was heavy onus on the respondents to prove that they in their own right were in possession of. The Haveli as a whole including the area mentioned in the unregistered sale-deed (Exhs.D.1 to D. 10) either by way of purchase or through adverse. Possession but they could not adequately discharge their onus and consequently, their claimof ownership on the total land of the Haveli remained unproved. The perusal of unregistered sale-deeds would show that the predecessor-ininterest of respondents purchased only an area of 11 Marlas in the Haveli and as mentioned in the sale-deeds, the possession only of the said area was given and thus the continuous possession of respondents on the Haveli as a whole as joint owner would not defeat the right of other co-sharer. The scrutiny of the record in detail revealed that the question relating to the title of parties in the property was not attended properly and all the three Courts by misinterpreting the document of title expressed divergent views on this pivotal issue. After hearing the learned counsel for the parties and perused the record, we find that the claim of appellant on the basis of registered sale-deed was substantiated by weighty evidence and the fining of First Appellate Court to that extent would be immune from interference in second appeal through reappraisal of evidence. There is no cavil to the proposition that in a suitable case in which the finding of facts of Court of first instance and First Appellate Court are at variance and if the findings of First Appellate Court are not supported by evidence on record or a material piece of evidence was not taken into consideration or that the findings are not based on logical reasoning and is found arbitrar or capricious, it should be rejected in second appeal. The party claiming a right in the civil suit must succeed on the basis of his own evidence but the Court must consider the entire evidence on record brought by the both sides to arrive at the correct conclusion and in the light of evidence available on record, the appellant and respondents in the present appeal. Would be holding joint ownership in the suit property.
6. The verdict given by the learned Judge in the High Court in the given facts being the result of misreading of evidence was against the law. The remaining questions raised in this appeal being of not substantial nature, would need no discussion.
7. For the foregoing reasons, we hold that the suit Haveli was jointly owned by the parties to the extent of areas purchased by them through unregistered and registered sale-deeds and we while setting aside the judgment of the High Court, impugned in the present appeal, direct for the modification of the decree passed in the suit for declaration filed by the respondents accordingly.
The suit for possession filed by the appellant shall be deemed to be pending and subject to all just legal exceptions, appellant shall be entitled to amend it for the addition of relief of partition. This appeal in the above terms, is allowed. The parties shall bear their own costs.