SULTAN Versus ABDULLAH-KHAN

ABDUL QADEER CHAUDHRY, J: ‑‑This appeal is directed against the judgment of the Peshawar High Court dated 30‑6‑1990.

2. The facts of the case are that the land measuring 39 Kanals 8 Marlas situated in Tehsil Charsadda was owned by Abdul Habib, Hassan Khan, Abdullah, Ismail, Muhammad Ali and Muhammadi Khan., Haji Sultan, Lashkar Khan, Samiullah, Sikander and Abdul Qayyum purchased the land through the registered sale‑deed on 19‑3‑1930 for a consideration of Rs.13,500. At the time of sale, the vendors Abdullah, Ismail, Muhammadi and Muhammad Ali were minors. The sale on behalf of minors was effected by Abdul Habib and Hassan Khan, their uncle. At the time of sale, the land was mortgaged with Rashid and Najab for an amount of Rs.8,500. After the completion of sale, the vendees redeemed the suit land and came into possession. According to the learned counsel, they are still in possession of the suit land.

3. The minors after becoming major filed a suit in the Revenue Court for the produce of the land in question against the plaintiffs. The appellants then filed a suit for declaration and injunction to the effect that they are owners in possession bf the suit land and the entries in the Revenue Record showing the defendants to be owners to the extent of 1/3 are wrong. The suit was contested. The learned trial Judge on 14‑1‑1984 dismissed the suit filed by the plaintiffs. The plaintiffs‑appellants challenged the decree and judgment of the trial Court before the Additional District Judge, Charsadda, who accepted the same on 26‑6‑1984. The defendants filed a civil revision against the judgment of the Additional District Judge which was accepted by the impugned judgment. The judgment of the Additional District Judge was set aside and that of the trial Court was restored.

4. Learned counsel for the appellants submitted that the sale was made in 1930 and under the Custom the grandchildren could not inherit the property. This contention is without any merit as according to the appellants themselves they had also purchased the share of the minors through their uncle. They had shown the minors as their vendors. Now, they cannot take a different position to challenge the title of their vendors. The admitted position is that after the sale 2/3rd share was recorded in favour of the plaintiffs -appellants and 1/3rd of the minors was recorded in the names of the minors in the Revenue Record and this entry continued without any objection. The appellants filed the suit in 1981 i.e. after about 50 years. They did not care to challenge the mutation made in respect of the suit land in minors' favour. Tine sale in respect of the minors' share was not acted upon as is clear from the Revenue Record. The minors, when they attained majority, filed a suit against the appellants for recovery of their share of produce.

5. The appeal has no force. The same is dismissed. As the appeal is being dismissed on merits, we do not consider to dispose of the preliminary objection raised by the respondents, about the maintainability of the present appeal. There will be no order as to costs.

A.A./H‑143/S Appeal dismissed.