JAN MUHAMMAD and anothers vs ABDUR RASHID and 5 others

1. ' WALI MUHAMMAD KHAN, J.---Jan Muhammad and Mst. Sarwara, petitioners herein, seek leave to appeal against the judgment, dated 22-7-1992 passed by a learned Single Judge of the Peshawar High Court, whereby their revision petition No,292/90 against the judgment of the Additional District Judge-II, Peshawar, dated 6-5-1990 accepting the appeal of the plaintiffs/respondents 1 to 3 and by setting aside the judgment of the trial Court, dated 13-2-1988 decreeing their suit for declaration, was dismissed.

2. ' The facts of the case, in nutshell, are that Abdur Rashid, Murad Khan and Mumtaz Khan plaintiffs/respondents 1 to 3 filed a suit for declaration against the petitioners and the other respondents claiming that they are owners of 1 Kanal 5 Marlas out of 2 Kanals 8 Marlas in Khasra No, 3671 situated in village Hazar Khani vide Mutation No, 5486 attested on 10-6-1974 and also claimed joint possession in the alternative. The defendants/petitioners contested the suit and in their written statement denied the title of the plaintiffs, agitated their respective title on the basis of adverse possession for more than 12 years and claimed compensation for improvement and for the construction made over the suit property. It was also alleged that the suit was not within time.

3. Necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned trial Judge, vide his judgment and decree, dated 13-2-1988 dismissed the suit of the plaintiffs/respondents. Aggrieved from the same, the plaintiffs/respondents preferred appeal before the learned Additional District Judge, who vide his judgment, dated 6-5-1990 accepted the appeal, set aside the judgment of the trial Court and passed the decree prayed for by the plaintiffs/respondents against the defendants/petitioners. The defendants/petitioners preferred revision petition to the High Court which could not succeed vide the impugned order and hence the instant petition for leave to appeal.

4. ' We have heard Mr. K.G. Sabir, Advocate, for the petitioners, Sh. Wazir Muhammad, Advocate, for the respondents and have perused the record of the case.

5. ' The learned counsel for the petitioners, relying on the contents of the registered sale-deed dated 21-1-1962 .Exh.D.W.1/2, submitted that the defendants/petitioners had purchased 2 Kanals 8 Marlas, the entire Khasra. No,3671, from Feroz and Ibrahim for the purpose of constructing a house thereon; that at the time of the sale the vendor had asserted exclusive claim to the ownership thereof on the basis of private partition and put them in possession thereof as exclusive owners; that the defendants/petitioners believing themselves to be the exclusive owners thereof invested huge sums in raising construction thereon and continued in possession thereof as full-fledged owners without admitting title of the plaintiffs/respondents. We are afraid, these contentions of the learned counsel have no force because the sale in favour of the petitioners was Hissadari and in the subsequent Revenue Record their possession has consistently been recorded as that of co-sharer and not of exclusive owner. Needless to emphasise that the possesion of one co-sharer in law is the possession of all and that any alienation made by the co-sharer in possession cannot put an end to the joint ownership/possession of the property and the transferee co-sharer steps into the shoes of the transferor qua his ownership rights in the joint property no more no less, as held by this Court in case Muhammad Muzaffar Khan v. Muhammad Yousuf Khan PLD 1959 Supreme Court (Pak.) 9). In this view of the matter the petitioners can only claim ownership in the entire joint property owned by their transferor with the other co-owners and retain possession of the area specifically purchased by them till partition but cannot claim exclusive ownership thereto. The plaintiffs/respondents were undoubtedly recorded co-sharers and therefore were rightly held as such by the appellate Court. However, since the petitioners have already constructed house on the area purchased by them without any objection by that co-sharers rather they acquiesced in the said construction, the petitioners shall remain in possession thereof till partition of the entire joint property viz., the suit Khasra numbers and the other Khasra numbers in which the transferors of- the petitioners were joint owners and in the partition, whenever embarked upon, efforts shall be made to place the same in the lot of the petitioners as far as practicable and the other co-sharers compensated in the other joint property.

6. ' With the above observation, the instant petition is dismissed and leave to appeal is refused.