DILAWAR KHAN AND Another vs PORDIL KHAN
This petition for special leave to appeal arose from a suit filed by the petitioners seeking possession of a two-thirds share in joint lands, claiming that only one co-owner brother had sold his individual one-third share to the respondent. The respondent asserted that all three brothers sold the entire property, or alternatively, that he acquired title by adverse possession. While the appellate court decreed the suit, the High Court in second appeal reversed that decision, upholding the trial court's dismissal of the suit based on a factual finding that the entire property was sold. The Supreme Court affirmed the High Court's judgment, refusing leave to appeal. The Court held that the High Court's conclusion was a finding of fact supported by oral and documentary evidence, including revenue records. Furthermore, entries in the Jamabandi showed that one petitioner was himself recorded as a tenant-at-will under the respondent, confirming attornment to the transferee and precluding the petitioners from denying the sale of the entire property.
- Can a co-owner dispute a sale of the entire joint property after having attorned as a tenant under the transferee in revenue records?
- Will the Supreme Court interfere in a petition for leave to appeal with a finding of fact by the High Court based on adequate oral and documentary evidence?
1. HAMOODUR RAHMAN, C. J.-This is a petition for special leave to appeal from the judgment of a learned Single Judge of the High Court of West Pakistan, Peshawar Bench, in a second appeal., The learned Judge has also refused to certify the case as fit for appeal under the Letters Patent.
2. The appeal arose out of a suit filed by the present petitioners against the respondent for possession of a 2/3rd share in the lands in suit. These lands belonged to the petitioner and his two brothers Mohammad Afzal and Akram Khan jointly, but by a mutation of sale attested on the 18th October 1933, they were purported to have been sold to the respondent herein.
3. The petitioners who are one of the three brothers and the son of another brother, averred in their plaint that it was Mohammad Afzal alone who had sold his individual 1/3rd share. It was not a sale of the entire share of all the three brothers.
4. The respondent on the other hand claimed that all the three brothers had sold their entire share in the suit lands along with the Hissa Shamilat, for consideration and that he had since then been in.
5. Possession of the same as owner. In the alternative he claimed title by adverse possession for more than 12 years.
6. The trial Court found that the shares of all the three brothers had been sold in the entire land and, therefore, dismissed the suit. On appeal, however, the learned Additional District Judge, Peshawar, reversed the decision of the trial Court and passed a decree for joint possession of 2/3rd share in the suit lands in favour of the petitioners. On second appeal the High Court reversed the decision of the learned District Judge and restored that of the trial Court dismissing the suit of the petitioners.
7. The petitioners now seek special leave to appeal to this Court and it has been strenuously contended on their behalf by reference to the mutation entry that since the mutation was only attested in the cultivation column by Mohammad Afzal and not by the other brothers, the sale was of only the 1/3rd share in the cultivation of Mohammad Afzal.
8. The finding of the High Court is that the sale was of the entire property. This is a finding of fact which is based on a consideration of the evidence.
9. Learned counsel appearing for the petitioners has, however, contended that even if the sale was of the entire property by one co-sharer then the transferee of such a co-sharer merely stepped into the shoes of the transferor and got nothing more than the transferor's share. But these arguments are of no avail to the petitioners now, for, it appears from the Jamabandi of 1942-43 that the present petitioner Dilawar Khan was himself shown as a tenant-at-will under the respondent on payment of Batai by Hissa-e---Nisfi. This clearly showed that he too had attorned to the transferee and, therefore, it does not lie in his mouth now to say that the sale was only of the 1/3rd share of Mohammad Afzal.
10. We see no reason to differ with the conclusions of the High Court which appear to be based upon adequate evidence both oral and documentary, including the Jamabandis. This petition is, accordingly, dismissed.