MUHAMMAD SHARIF and 3 others vs GHULAM HUSSAIN and another

1. ' WALI MUHAMMAD KHAN, J.---Muhammad Sharif and others, petitioners herein, call in question the judgment dated 29-5-1993 passed by a learned Single Judge of the Lahore High Court, whereby Regular Second Appeal No, 491/70 filed by Ghulam Hussain, respondent No, 1 herein, was accepted, the judgments and decrees of the Courts below were set aside and the suit of the plaintiffs/petitioners for declaration and injunction was dismissed.

2. ' The facts of the case, briefly stated, are that Muhammad Sharif, petitioner No 1 herein, filed a suit for declaration and injunction against Ghulam Hussain and others, respondents herein, alleging therein that he and Abdul Ghani and others, defendants 2 to 5, were co-sharers in the joint Khata measuring 51 Kanals 3 Marlas comprised in several Khasra numbers situated in village Aulakh and that vide sale-deed attested on 5-1-1956 Abdul Ghani defendant No, 2, sold 7 Kanals 8 Marlas of land comprised in Khasra Nos. 311 and 312 to Ghulam Hussain defendant/respondent No, 1 for a sum of Rs,5,250; and that he being a co-sharer had no right to transfer the entire area and questioned the legality of the sale-deed in question. Ghulam Hussain defendant No, 1 contested the suit and denying the title of the plaintiffs/petitioners alleged partition between the co-sharers in which the land purchased by him had fallen to the share of the transferors. Necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned trial Court, vide judgment and decree dated 21-10-1969, granted a declaration to the effect that the impugned sale is illegal, null and void and ineffective on the rights of the plaintiffs/petitioners. An appeal was filed by Ghulam Hussain defendant/respondent 1 which was heard by the learned Additional District Judge, Sialkot, who, vide his judgment and decree dated 11-5-1970, dismissed the same. However, on second appeal, the learned High Court set aside both the judgments of the Courts below and dismissed the suit of the plaintiffs/petitioners through the impugned judgment.

3. ' We have heard Ch. Muhammad Ashraf Wahlah, Advocate, for the petitioners; Kh. Muhammad Farooq, Advocate, for respondent No, 1; and have perused the record of the case.

4. ' Abdul Ghani defendant No, 2 was admittedly recorded as co-sharer in Khata No, 25 of the Jamabandi 1964-65 measuring 51 Kanals 3 Marlas and was in possession as such over Khasra Nos.

5. 311 and 312 measuring 7 Kanals 8 Marlas which he sold vide registered sale-deed dated 4-1-1966, in favour of Ghulam Hussain defendant/respondent-1 for a sum of Rs,5,250 out of which an amount of Rs,3,000 was received by him and left Rs,2,250 with the vendee for payment to the mortgagees for redemption of the suit land. The share of Abdul Ghani in the Khata exceeded the area sold by him and therefore, in view of the principle laid down in the judgment of this Court in Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 Supreme Court (Pak.) 9), he was within his right to transfer--the specific Khasra numbers in his possession to the transferee, who, in his turn, was entitled to retain possession till partition of the entire joint property. Respondent No, 1, no doubt, in his written statement claimed exclusive ownership through private partition between the co- sharers but that plea has not been accepted by all the Courts below. The learned trial as well as the first appellate Court failed to consider the legal aspect enunciated in the above-quoted judgment of this Court and passed the declaratory decree. The High Court, however, by upsetting the same held the transferee to be stepping into the shoes of his transferor Abdul Ghani to the extent of his ownership rights in the entire joint property, no more and no less. The rights of the plaintiffs qua their ownership rights in the entire joint property are not affected through the judgment of the High Court.

6. ' There being no illegality in the impugned judgment of the High Cum t, we refuse leave to appeal and dismiss the petition. However, it is observed at the instance of the learned counsel for the petitioners that if at the time of the partition Ghulam Hussain defendant/respondent-1 is found in possession of excess area then purchased by him and exceeding the share of his transferor Abdul Ghani in the joint property, he shall have to surrender the same to the co-sharer to whom the same is allotted in the partition.