RABNAWAZ and others vs AKBAR ALI and others

ORDER

' ALI HUSSAIN QAZILBASH, J.--This order will dispose of Civil Petition No, 294-R of 1987 which arises from the order of a learned Single Judge of the Lahore High Court, Rawalpindi Bench, dated 10-10- 1987.

2. The respondent's suit for a declaration was decreed by the Civil Judge, Jhelum, vide judgment dated 21-7-1965. The appeal of the petitioners was dismissed by the District Judge, Jhelum, on 25- 10-1965. The petitioners challenged both the judgments through R.SA. No, 18 of 1966 in the High Court where they were represented by Raja Muhammad Ayub, Advocate. The appeal was listed for hearing on 25-3-1980, but since none appeared on behalf of the petitioners in spite of repeated calls, the same was dismissed for non-prosecution at 1-15 p.m. An application for restoration of the appeal, alongwith an application for condonation of delay under section 5 of the Limitation Act, was filed by the petitioners on 16-5-1982 but the same too was dismissed through the impugned order.

3. We have heard the learned counsel for the petitioners. The learned Judge in the High Court by his well-reasoned order has refused to exercise discretion in favour of the petitioners and thus no reasons exist for us for interfering in the matter. Even otherwise on merits, the petitioners have no case. The suit property consists of Khasra Nos. 42 and 51. According to the record Shah Nawaz, predecessor-in-interest of the petitioners, was the owner of half of the suit land but as per Mutation No, 818 attested on 17-8-1953 he had sold the entire land in favour of Rahm Ali. It is well-established principle of law that a co-sharer is not entitled to alienate more than his share in the joint holding and this question has rightly been decided by the learned appellate Court vide its judgment dated 25-10-1965.