This revision petition under Section 116 CPC has been filed to call in question the judgment and decree dated 4.4.1981 passed by the learned District Judge, Jhelum, whereby he maintained the decree of the trial Court dated 30.1.1980, decreeing the declaratory suit of the plaintiff/respondents herein.
2. The brief facts of the case are that Mst. Dardana Jehan daughter of Jehan Khan and eight others had filed a suit for declaration against the petitioners herein and others, who are respondents in this revision to the effect that they were joint owners of the suit property and the transfer of land through sale of mutation by Respondents Nos, 10 and 14 in favour of the petitioners through a consent judgment and decree dated 17.5.1973 was illegal, void and ineffective qua their rights with the consequential relief that the petitioners be permanently restrained from interfering with their possession over the suit property. It was asserted in the plaint that Respondents Nos, 1 to 4 were in possession of the suit property measuring 18 Kanals 17 Marlas in Khasra No, 17 and Respondents Nos, 10 of 14 on their own behalf and on behalf of plaintiff Mst. Dardana Jehan, Respondent No, 5, have sold out whole of the suit land in favour of the petitioners through the decree of the Court and a mutation under the decree as sanctioned in the revenue record. It was further alleged in the plaint that the decree dated 17.5.1973 was illegal on the ground that the suit land was in their joint possession since long and the vendors/Respondents Nos, 10 to 14 could not specifically sold out the land to the petitioners exclusively without getting it partitioned from the competent authority. k was specifically alleged in the plaint that Mst. Dardana Jehan was minor at the time of alleged decree.
She did not appear before the Court nor was represented by her next friend and the alienation on her behalf was void abinitio. It was further alleged that the suit land was situated within the limits of Municipal Committee, Chakwal, and it could not be sold out orally as the immovable property situated within the urban area of Municipal Committee having the value of more than rupees one hundred or more is required compulsorily registration, thus the sale was illegal. It was further alleged that the decree was the result of fraud and collusion and against facts and law.
3. The suit had been contested by the defendants/petitioners herein denying the averments of the plaint with a specific stand that Mst. Dardana Jehan Plaintiff/Respondent No, 5 was not minor at the time of alleged sale dated 17.5.1973 and Respondents Nos, 10 to 14 alongwith Mst. Dardana Jehan had transferred the suit property through sale in their favour for a consideration of Rs, 15,000/- on the basis of consent decree and under the sale the possession was also delivered to them. Further asserted that they have constructed their house and sunk a Well. It was also objected that the suit was not maintainable.
It will not be out of place to mention here that the present petitioners had contested the suit and the other defenda.nts/Respondents Nos, 10 to 14 did not contest the suit and filed their consenting written statement.
4. From the divergent pleadings of the parties, the learned trial Court led to frame the following issues :-- (1)Whether the plaintiffs are estopped by their conduct to file the suit? OPD 1 and 2.
(2)Whether the plaintiffs are in possession of the suit land and the suit is maintainable in the present form ? OPP (3)Whether Plaintiff No, 1 was minor at the time of the impugned sale and as such the transaction is void ? OPP
(4) Whether the impugned transaction of sale was without authority, illegal, void and ineffective qua the rights of the plaintiffs for the reasons mentioned in Paragraph No, 2 of the Plaint? OPP If Issue No, 4 is proved, whether Defendants Nos, 1 to 3 can be restrained from causing interference with the possession and title of the plaintiffs regarding the suit land ? OPP (6)Whether Defendants Nos, 1 to 3 have since entered into possession of the suit land as co- owner and they were competent to construct a house and to dig a Well as co-owners? -OPP (7)If Issue NO. 6 is proved, whether Defendants Nos, 1 to 3 have since constructed a house and a sunk a Well and they have incurred a sum of Rs, 10,000/- and Rs, 8880/- respectively towards the said purpose, if so, with what legal consequences ? OPP (8)Whether Mst. Fehmida Jehan Defendant No, 6 and filed a suit for pre-emption as the next friend of one Mst. Saira Jehan regarding the sale in question, if so with what result and legal consequences ? OPD (9)Whether the suit is vexatious and Defendants Nos, 1 to 3 are entitled to get special costs from the plaintiffs, if so, to what extent ? OPD (10)Relief.
5. After recording and appreciating the evidence of the parties, pro and contra, the learned trial Court decreed the suit in favour of the plaintiffs on 30.1.1980.
6. Feeling aggrieved, the present petitioners preferred an appeal which came up for hearing before the learned District Judge, Jhelum, who vide the impugned judgment and decree dated 4-4-1981 while maintaining , the findings of the learned trial Court dismissed the appeal of the petitioners.
7. Earlier this revision petition was dismissed by this Court vide judgment dated 20.11.2000 merely on the technical ground that the petitioners have not complied with the provisions of Section 115(1)
CPC and had not properly documented the same. This order was assailed through Civil Petition No, 205 of 2001 before the Supreme Court, which was accepted vide order dated 28.11.2001 whereby the judgment of this Court was set aside and remanded the revision for decision afresh with the direction to allowing the defendants an opportunity of raising an objection on the maintainability of the revision petition.
8. Learned counsel for the petitioners has contended that the suit in the present form was not maintainable as the suit land was situated in joint Khata and possession and the plaintiffs should have filed a suit for partition. He has further contended that in the plaint, the plaintiffs have taken the plea that Mst. Dardana Jehan was minor at the time of alleged sale but she did not appear in the Court to substantiate the plea of her minority and the plaintiff was not afforded an opportunity to cross-examine the witnesses. He has further contended that Jehan Khan, father of Mst. Dardana Jehan, who has appeared as PW-1 did not mention in his application for putting the suit for compromise 'before the Court to the effect that Mst. Dardana Jehan was minor. In this' context, the learned counsel has placed reliance on Muhammad Ahtramullah Khan vs. Delhi Motor '& Furniture Works, Ltd. (A.I.R. 1933 Lahore 243). Learned counsel submits that the decree passed on the basis of compromise is exempted from compulsory registration under Section 13(2) of Registration Act, 1908. Relies on Haji Arsala Khan vs. Dr. Abdus Sattar Khan (1990 M.L.D. (Peshawar) 2404). Further submits that the plaintiff has not claimed any consequential relief in the suit as admittedly the possession of the suit property was not delivered to the petitioners. Reliance has been placed on Muhammad Shafi and 2 others vs. Munshi and 3 others (1979 C.L.C. (Lahore) 230). He further submits that if at all it is proved on record that Mst. Dardana Jehan was minor at the relevant time, the sale or compromise decree to her extent could be set aside and the petitioners could not be non-suited with regard to the whole transferred property. In this context, reliance has been placed on Sakinabai and others vs. Kurnool Muhammad Bashir (PLD 1967 Karachi 158. Further, contended that the vendee of co-sharer, who owns an undivided Khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less and that if the vendor of a co-joint Khata was in exclusive possession of certain portion of the joint land and transferred the possession to his vendee, so long as there is not partition between the co-sharer, the vendee must be regarded as stepping into the shoes of his transferor. Relies on Muhammad Muzaffar Khan us. Muhammad Yusuf Khan (PLD 1959 Supreme Court (Pak.) 9).
9. The arguments of the learned counsel for the petitioners have vehemently been .opposed by the learned counsel for the respondents contending that two respondents namely Amir Muhammad Khan and Mst. Saadat Sultana had died before the institution of the present revision petition and the revision would not lie against the dead persons and their legal heirs were not impleaded in the revision petition. Thus, on this score alone, the revision petition was not maintainable and liable to be dismissed. Further contended that Khasra No, 1700 measuring 18 Kanals, 17 Marlas, belonged to fourteen persons, whose names were mentioned in the column of ownership of record of rights pertaining to the year 1975-76 Ex. P. 2 and the vendors had no authority to transfer the share of all the co-sharers and rights of co-owners are always protected. Further contended that it was an invalid sale and the plea of right of bona fide purchaser is also not available to the petitioners. In this respect, reliance has been placed on Muhammad Sabir Khan vs. Rahim Bakhsh and 16 others (PLD 2002 Supreme Court 303). Further contended that the witnesses were not cross-examined on the minority of Mst. Dardana Jehan and it is established that the witnesses did not examine on a particular point of fact and the examination-in-chief of the witnesses shall be deemed to be admitted to that extent. Further contended that the revision petition was filed without proper documentation as required under Section 115 CPC. Further contended that there are concurrent findings of fact and the High Court in exercise of its revisional jurisdiction cannot interfere with the same. Learned counsel argued that the rights of all other joint co-owners' rights would not be adversely affected if one or more out of the same deals with the property. Reliance has been placed on Muhammad Siddique vs. Muhammad Akram (2000 SCMR 533). Further contended that the possession of one co-sharer in law is possession of all co-sharers. Relies on Mst. Roshan Akhtar vs. Muhammad Boota and 4 others (2000 SCMR 1845). Learned counsel has lastly argued that the sale made by a co-sharer beyond his land would be bad in law and invalid and the sale and the sale in dispute was not an invalid sale.
10. I have heard the learned counsel for the parties anxiously and perused the record. Firstly, I will deal with the technical and procedural objection raised by the learned counsel for the respondents that two respondents namely Amir Muhammad Khan and Saadat Sultana had died before the institution of the suit and that all legal heirs of the deceased have not been impleaded as respondents, therefore, the revision petition is liable to be dismissed for non-joinder of necessary parties. From the perusal of the plaint, it reveals that Saadat Sultana and Aniir Muhammad Khan were impleaded as Plaintiffs Nos, 5 and 9 in the plaint. None of the plaintiffs has objected or pointed out to the Court that they had died. The suit had been decreed in favour of the plaintiffs on 30.1.1980 and till the final judgment by the learned trial Court, this fact was not brought to the notice of the trial Court and then an appeal was filed before the lower appellate Court. During the pendency of the appeal, this fact too was not brought to the knowledge of the Court or to the defendants/petitioners. So much so this revision petition, which had been filed in this Court in the year 1991, and Mr. Bashir Ahmad Ansari, learned counsel for the respondents, appeared in Court on 3.5.1993 till the final disposal of this revision petition on 20.11.2000, the Court was not informed that the said plaintiffs/respondents had died. The respondents agitated the matter for the first time before the Supreme Court. The death of Amir Muhammad Khan and Mst. Saadat Sultana, Respondents Nos, 5 and 9, came in the knowledge of the petitioners in the Supreme Court and after the remand of the case, the petitioners have filed n application bearing C.M. No, 677-C/2002 to bring on record the legal heirs of the deceased respondents, which was allowed on 3.3.2002 by this Court subject to all just legal objections, wherein the petitioners have mentioned the names of the legal heirs to bring on record as respondents. The, petitioners while filing the application under Order 22, Rule 4 CPC for impleadment of the legal heirs of the deceased respondents as party in the Court had prayed that beyond the list, if any of the legal heirs applied to the Court for his impleadment, the petitioners will not agitate to make them as respondents because the names of all the legal heirs was not in the knowledge of the petitioners. Reply to the said application was filed by the respondents, but in the application it has no where been stated that the list of the legal heirs filed by the petitioners in the Court was not correct but during the arguments, learned counsel for the respondents has pointed out that some of the legal heirs of the deceased respondents have not been impleaded. The respondents themselves have failed to perform their legal duty and did not inform the Court that some of the defendants had died during the pendency of the suit. Sub- rule (2) of Rule 3 of Order XXII CPC emerges that where no intimation is given under sub-rule (1), the Court may proceed with the suit and any order made or judgment pronounced in such suit shall, notwithstanding the death of such plaintiff, have the same force and effect as if it had made or pronounced before the death took place. Sub-rule (3) of Rule 4 of Order XXII CPC also provides that where no intimation is given under sub-rule (1) of Rule 4, the Court may proceed with the suit and any order made or judgment pronounced in such suit shall, notwithstanding the death of such defendant, have the same force and effect as if it had been pronounced before the death took place.
11. Further, the plaintiffs while filing the suit has supplied the list of legal heirs of the deceased plaintiffs, now the respondents herein, have to come forward and applied to the Court to be impleaded as party. Before the arguments, learned counsel for the respondents has not made any efforts to supply any information about the total legal heirs of the deceased respondents to the petitioners as well as to the Court. Therefore, the most important significant view of the case is that the-interest of all the plaintiffs, now the respondents, is common in the suit and if any of the legal heirs has not been impleaded as respondents, the other respondents would protect and safeguard the interest of all other LRs of the deceased respondents, who have not been impleaded as party. In the suit, the interest of one respondents is the interest of all other respondents in the property in dispute, as every co-sharer is a sharer of every inch of land. The objection of the learned counsel for the respondents that the revision petition has been filed against the dead persons having no force is repelled as they have failed to intimate the Court as well as to the respondents about the death of the deceased respondents. However, the legal heirs who were in the knowledge of the petitioners have been impleaded as. respondents_ However, if the respondents filed the correct list of the legal heirs of the deceased (respondents, they shall be deemed to be party in the present revision petition for the ends of justice.
12. The stand of the plaintiff is that at the time of the aforesaid sale, Mst. Dardana Jehan one of the plaintiffs, was minor and to support their plea, the plaintiffs have produced a certified copy of birth register of Chakwal Town wherein, the date of birth of a daughter of Jehan Khan has been entered as 19.12.1956 and both Jehan Khan PW-1 and Brigadier Muhammad Akram Khan PW-2 stated the date of birth of Mst. Dardana Jehan the year of 1956 and specifically stated that at the time of sale, she was minor although in Ex. P.1, a copy of birth register, the name of Mst. Dardana Jehan has not been entered. In Column No, 5 of this register, only one daughter has been entered and this fact has been clarified by PW-1 at the time of entry in the birth register, Mst. Dardana Jehan was not given any name, therefore, no name could be entered in the birth register. The PWs have not been cross-examined about the minority of Mst. Dardana Jehan by the petitioners. It means that without cross-examination, the facts stated in the examination-in-chief shall be deemed to have been admitted. In this context, reliance can be placed on Mst. Nur Jehan. Begum through legal representatives vs. Syed Mujtaba Ali Naqvi (1991 S.C.M.R. 2300), Dr. Aziza and 5 others vs. Muhammad Sarwar and another (1997 M.L.D. 2013), Mst. Zubeda vs. M. Abdul Sattar and another (2000 C.L.C. (Karachi) 90), and Nazakat Parveen vs. Ikhlaq Ahmad (2001 MLD 1169). The petitioners to rebut the contentions of the plaintiffs/respondents that at the time of sale, Mst. Dardana Jehan was a minor have also not produced any convincing oral or documentary evidence. The mere statement that Mst. Dardana Jehan was major at the time of sale is not sufficient. If at the time of filing of the application by Jehan Khan PW-1 for making the consenting statement did not point out the minority of Mst. Dardana Jehan plaintiff, but when this fact came to the knowledge of the petitioners, it was their foremost duty to bring on record the evidence showing her age of majority at the time of sale. The petitioners were the beneficiaries of the transaction and the compromised decree, therefore they were under legal obligation to establish the majority of one of the vendors Mst. Dardana Jehan. Although Mst. Dardana Jehan did not appear in the Court to support the plaintiffs' version but the statements of PW-1 and PW-2, the uncle of Mst. Dardana Jehan, with regard to her age remained un-controverted as both have categorically stated that she was born in the year 1956. The entry of birth certificate Ex. P.1 has also not been confronted with her father Jehan Khan, who deposed in his statement that he has four daughters and all of his children were alive. Even if the application of compromise has been signed by Mst. Dardana Jehan and at the time of making the compromise, she was minor, her signatures on the application would not make the transaction as valid to her extent. Ex. D. 7 a copy of birth certificate of one daughter of Jehan Khan has been produced on record, but it has not been established on record that this document pertained to which daughter Jehan Khan PW-1. No where it has been stated that it was the birth entry of Mst. Dardana Jehan. If for the sake of argument, it was inferred that it was the birth entry of Mst. Dardana Jehan, but this document has not been supported by any other evidence and the statement of father and uncle of Mst. Dardana Jehan cannot be brushed aside orally.
13. From the circumstances, it is established that Mst. Dardana Jehan was minor at the time of transfer of the property in dispute and to her extent this transfer would be void abinitio. Reliance can be placed to the cases of Govind Ram vs. Piran Ditta and others (AIR 1935 Lahore 561). The Chairman, District Screening Committee, Lahore and another vs. Sharif Ahmad Hashmi (PLD 1976 Supreme Court 258), Manzoor Hussain and others vs. Bhole Khan and others (1991 CLC (Lahore)
640), Noor Muhammad and another vs. Muhammad Ishaq and another (2000 MLD 251), Aamir Masood vs. Mst. Khurshid Begum (2001 MLD (Lahore) 159), Muhammad Umar Khan vs. Mst. Aziz Begum and another (2001 MLD (Lahore) 448) and Musaddaq Ali Khan and 6 others vs. Sharif Rahat Qureshi and 10 others (2001 CLC (Lahore) 551).
14.The transfer of 18 Kanals, 17 Marlas of land situated in Khasra No, 1700 has been transferred by Jehan Khan, Mst. Zahida Jehan, Mst. Fahmida Jehan, Mst. Riffat Jehan and Mst. Dardana Jehan through a compromise decree of the Court. Learned counsel for the respondents has relied upon the document Ex. P. 2, the record of rights pertaining to the year 1975-76. Except the vendors, the names of other co-sharers are entered in the column of ownership. The defendants/petitioners have purchased the land situated in Khata No, 83/169 and Khasra No, 1700 and to support their case, they have placed on record copy of the record of rights for the year 1971-72 and Khata consisting of Khatoni Nos, 160, 161 and 164 and Khasra Nos, 1700, 1699 and 747, total measuring 37- Kanals, 6-Marlas, out of this whole Khata only 18 Kanals, 17 Marlas of land has been transferred in favour of the petitioners vide judgment and decree dated 17.5.1973, on the basis of which a mutation of sale was sanctioned. Jehan Khan having the possession of 18-Kanals, 17-Marlas in Khasra No, 1700 as per Khasra Girdawri Nos, 72 to 75, 76 and 77 and out of the joint Khata, the said Jehan Khan had transferred the property under his possession belonging to the share of the vendors. It means that the vendors had transferred their own entitlement and the share of other co-sharers in Khasra No, 1699, 447 measuring 18-Kanals, 3-Marlas plus 6-Marlas had not been transferred through the sale in dispute. The proposition that whether a co-sharer can sell a specific Khasra number out of the joint Khata, in a case of Muhammad Muzaffar Khan us. Muhammad Yusuf Khan PLD 1959 Supreme Court (Pak.) 9, the observation made by the Hon'ble Judges of the apex Court for further guidance is reproduced as under :-- "A plain consideration of the nature a the transaction in the circumstances of this case could, in our opinion, lead to but one conclusion. The vendee of a co-sharer who owns an undivided Khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If 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 meets and bounds takes place between the co-sharers. It is difficult to see in these circumstances why the vendee of specific plots acquired from a co-owner, in an undivided Khata does not become a co-sharer in that Khata. It may be pointed out that the mutations in favour of the appellant, which are on the record, described the sale transactions in his favour as Hissadari sales of the joint Khata in suit." This view has been further strengthen by the dictum laid down in Muhammad Sadiq and another vs. Abdul Aziz and another (1990 CLC (Lahore) 1387) and Rehmat Ali vs. Mst. Allah Wasai and another (PLD 1992 Lahore 228).
15. Keeping in view the principle laid down in the above referred dictum by the Hon'ble Supreme Court of Pakistan, where it has been observed that the co-sharers were entitled to transfer a specific Khasra number under their exclusive possession to the petitioners and they would continue in possession till the partition of the joint Khata because the petitioners-vendees stepped into the shoes of the vendors as co-sharers. The record of rights Ex. P. 25 pertaining to the year 1971- 72, Ex. D. 24 Jamabandis for the year 1967-68, Ex. D. 23 for the year 1963-64 and Khasra Girdawris Ex.
D. 18 and Ex. D. 19 substantiated that Jehan Khan was in actual possession over Khasra No, 1700 which he had transferred and this documentary evidence produced by the petitioners neither has been controverted by the plaintiff nor the Courts below have taken into consideration. The sale made by the plaintiffs with regard to Khasra No,- 1700 by the major vendors has been validly made as laid down in Sakinabai and others vs. Kurnool Muhammad Bashir (PLD 1967 Karachi 158 (supra).
16.It has been admitted that the possession of the suit property pertaining to Khasra No, 1700 was delivered to the petitioners by the vendors which has been admitted by PW-1. It has also been admitted that the Well as well as the house constructed in the said land by the petitioners after delivery of possession of the land at the time of passing of the decree dated 17.5.1973. Learned counsel for Jehan Khan, one of the vendors, has made a statement in the Court with regard to the delivery of possession and he admitted the construction of the house as well as installation of the Well in the land in dispute. The admission of the PWs with regard to the construction of the house and the Well was supported by the DWs as well and it is settled proposition of law that the admitted facts need not to be proved as enunciated in Daulat Ali through legal heirs and 2 others vs Ahmad through legal heirs and 2 others (PLD 2000 Supreme Court 792) and Muhammad Akhtar us. Mst. Manna and 3 others (2001 SCMR 1700).
17. As to the arguments of the learned counsel for the respondents that the sale in dispute being oral was hit by the provisions of Section 54 of the Transfer of Property Act and was not sustainable in law. The answer would be that the sale in dispute has been made by a consent decree dated 17.5.1973 on the application made by one of the vendor Jehan Khan, who has appeared as PW-1, for effecting compromise and disposal of the suit under the said agreement. A copy of the said application has been placed on record as Ex. D. 6 and the Court recorded the statement of Jehan Khan PW-1 wherein he has stated that the present petitioners had purchased the suit land from them and, the possession had been delivered to them. The decree was passed on the hasis of compromise and it was a consent decree and the sale through the compromise decree is exempted from compulsory registration. Sub-section (1) of Section 17 of the Registration Act enumerates the documents, which require compulsory registration and sub-section (2) thereof make exception thereto are somewhat relevant to the point in issue and they are being reproduced for convenience sake-- (i)any composition deed; or (ii)any decree or order of a Court except a decree or order expressed to be made on a compromise and compromising immovable property other than that which is the subject matter of the suit or proceedings.
18. Obviously, the compromise in the case filed by the petitioners against the vendors exclusively pertained to the suit property (immovable property) and consequently did not necessitate compulsory registration as laid down in Qasim Khan vs. Mirza Ali Khan and others (1990 MLD (Peshawar) 2406).
19. The above legal aspect of the case has not been adverted to by the Courts below and in such like cases where the Courts have committed gross illegality and not attended to the legal proposition of, law and passed judgments in violation of the principle laid down by the superior Courts, this Court in exercise of its revisional jurisdiction can set at naught the judgments and decrees by the concurrent findings of the Courts below. Reliance can be placed on the judgment of this Court in a case Manzoor Ahmad us. Haji Hashmat Ali through legal heirs (2000 C.L.C. (Lahore)
419).
20. In one of the preceding paragraph Mst. Dardana Jehan plaintiff/respondent has been observed as minor at the time of sale and the said sale to her extent would be invalid and liable to be set aside. So far as the sale made by the other co-sharers/vendors including Jehan Khan who had not challenged the sale and they have been impleaded as defendants in the suit and none of them had applied to the Court for their transposition as plaintiffs. It means that they had admitted their sale through the suit, therefore, the sale in favour of the petitioners on their behalf was quite valid.
The judgment and decree with regard to the sale in question to their extent is set aside. Resultantly, the revision petition to their extent is partly accepted and the sale made in favour of the petitioners shall stand restored and except the share of land to the extent of Mst. Dardana Jehan, the judgment and decree passed by both the Courts below shall be modified accordingly. The suit filed by Plaintiffs Nos, 2 to 9 shall stand dismissed. There shall be no order as to costs.