FAZAR ALI KHAN and 3 others vs GHULAM ALI KHAN and 9 others

' The present house measuring about five Marlas detailed in the original suit and situated within the limits of Lakki Meena Khel seems originally to have been owned by Shah Wali Khan who had two sons Ghulam All Khan and Akbar Ali Khan. Ghulam Ali Khan is alive while Akbar Ali Khan is dead and is survived by Mst. Bibi Zahida widow, Rashid Latif, Anwar Jehangir, sons; Mst. Samina Yasmeen, Mst; Zubaida, Mst. Fehmeeda, Mst. Jameela, Mst, Farzana, Mst. Nelufar and Mst. Arjumand, the daughters. This brings the situation down to the fact that Ghulam Ali Khan and all the heirs of Akbar All Khan are otherwise co-sharers.

2. Fazar All Khan son of Sultan Ali Khan, admittedly, is residing in the suit house alongwith his family that consisted of a wife Mst. Sameena Yasmeen, a daughter and a son. Mst. Sameena Yasmeen is the same lady who is the daughter of Akbar Ali Khan and happened to be married to Fazar All Khan.

3. In the year 1988 Ghulam All Khan brought a suit against Fazar Ali Khan and his family for declaration as well as possession of the suit house on the ground that he alongwith the legal heirs of Akbar All Khan (pro forma defendants) including Mst. Sameena Yasmeen, was the owner of the house who had inducted Fazar All Khan giving him permissive possession for a short time till the latter made his own arrangement but Fazar All Khan refused to vacate the house, started claiming title thereto and hence the suit. That the share of Mst. Sameena Yasmeen was transferred by her through an agreement deed in favour of pro forma defendants Nos. 5 and 6, i,e, her two brothers.

4. Mst. Sameena Yasmeen daughter of Akbar All Khan though originally arrayed as pro forma defendant, was subsequently transposed as actual defendant. Both the husband and wife contested the suit of Ghulam All Khan and both claimed that the house originally, belonged to one Ahmad All from whom, through a registered deed, it was purchased by Mehboob All Khan and Liaqat All Khan and that Fazar All Khan derived title from Mehboob All Khan. That he was never inducted by Ghulam All Khan and that he was occupying the same in his own right. Both the learned lower Courts of Civil Judge and Additional District Judge Lakki Marwat vide their judgments dated 10-6-1990 and 9-12-1993 respectively held the plaintiff and pro forma defendants to be the owners of the suit house and granted the decree for declaration as well as possession against Fazar Ali Khan etc. The real defendants. Fazar Ali Khan had challenged such concurrent findings through the present revision.

'5. Neither the plaintiff-respondent has proved on record that Mst. Sameena Yasmeen had transferred her share in favour of her brothers nor the defendant-petitioner Fazar Ali Khan has proved in any manner that the house was purchased by him from Mehboob Ali Khan. The only thing that stands proved on record is that the house belonged to Ghulam Ali Khan and Akbar All Khan and that all the heirs of Akbar All are co-sharers alongwith Ghulam All Khan including Mst.

Sanieena Yasmeen the defendant whose share comes to 7/160. When once the two Courts had come to the conclusion and rightly so that Mst. Sameena Yasmeen was a co-sharer in possession in the house, she could not have been ejected simply because she and her husband happened to deny the title of the plaintiff. Such argument applies and such behaviour is meted out to a tenant alone who poses hostile title against the real owner/landlord. When once the Courts below had determined Mst. Sameena Yasmeen to be a co-sharer, she could never be ejected without partition. The decree requires to be modified to that effect.

6. The learned counsel for the respondents claimed that such title or cosharership was never claimed by the lady in her written statement and hence she should not be given the above protection. This argument is not very plausible because, regardless of her pleas taken, when once she is concurrently determined to be a co-sharer, the order of dispossession cannot be passed against her until and unless a partition of the house takes place. The two Courts below ought to have themselves protected the possessory rights of a co-sharer in possession.

7. The learned counsel for the respondents also objected to the non-fixation of the court-fees. The objection is valid because the value of the subject-matter as per objection of the petitioner was already fixed at Rs,27,000 9 on which ad valorem court-fee of Rs,2,100 was affixed by the respondent-plaintiff. Under Article 13-A of Schedule. I to the Court Fees Act, the fees leviable on a memorandum of appeal was liable to be affixed on the present revision being filed against the appellate decree. This fee shall have to be affixed by the present petitioner on the memorandum of revision petition.

8. Consequently, upon what has been arrived at, the findings of the two Courts below are upheld qua the declaratory aspect, while the same are set aside qua the decree for possession. The plaintiffs and pro forma defendants are declared to be the owners/co-sharers in the suit house but cannot acquire possession of the house out partition because it is occupied by Mst. Sameena Yasmeen, a co-s arer. The petitioner Fazar All Khan shall affix a court-fee of Rs,2,100 on the memorandum of revision petition within thirty days from today failing which the instant revision petition shall stand dismissed with costs.