AHMADULLAH KHAN AND Others vs FAZAL BIBI AND Other
This petition for special leave to appeal arose from a dispute over land ownership involving 110 kanals and 11 marlas. The petitioners, claiming ownership through a 1926 sale deed, sought a declaration of title and possession, asserting that the name of a co-sharer, Mst. Mehr Tabana, was wrongly included in revenue records. The petitioners argued they acquired title through purchase and, alternatively, through adverse possession. The trial court, the Additional District Judge, and the High Court all concurrently held that the petitioners failed to prove ownership regarding Mst. Mehr Tabana's share, as she was not a party to the sale deed. The Supreme Court affirmed these findings, holding that a sale deed cannot bind a third party who was not a signatory. Furthermore, the Court clarified that the possession of one co-sharer is deemed the possession of all co-sharers. Absent evidence of a definite act of ouster or denial of title, a co-sharer cannot claim adverse possession against another. Consequently, the petition was dismissed, upholding the concurrent findings of the lower courts.
- Can a sale deed bind a third party who was not a signatory to the document?
- Does the possession of one co-sharer constitute possession of all co-sharers in the absence of evidence of ouster?
- Can a co-sharer claim adverse possession against another co-sharer without proving a definite act of ouster?
1. HAMOODUR RAHMAN, C. J.-This is a petition for special leave to appeal from an order of a Division Bench of the High Court of West Pakistan; Peshawar Seat, summarily dismissing a Letters Patent Appeal from a judgment of a learned Single Judge of the same High Court, dismissing a second appeal.
2. The dispute to an area of 110 kanals and 11 marlas of land situated in Mahal Maira Prang, Charsadda Tehsil. These lands were sold on the 21st March 1926 to two brothers Abdullah Khan and Abdul Karim Khan by a registered sale deed, executed by Akbar Khan and Hastam Khan. The purchasers claim that they took possession of the land but in the revenue record effect was not given to the sale and the name of Akbar Khan and Hastam Khan continued to appear therein in the column of co---ownership, as also the name of one Mst. Mehr Tabana was shown as a co-sharer owner of these lands.
3. On the 30th September 1963, therefore, the heirs of Abdullah Khan brought a suit for a declaration, that they were the owners of the land and were in its possession for the last 37 years and that the name of Mst. Mehr Tabana predecessor-in-interest of some of the respondents herein was wrongly mentioned in the revenue papers. According to the petitioner the share of Mst. Mehr Tabana had also been sold by Akbar Khan and Hastam Khan. In any event Mst. Mehr Tabana and her heirs were not entitled now to any interest in the land as she had never raised any objection to the possession of the purchasers. In the alternative, they claimed that they had acquired title to these lands by adverse possession.
4. The trial Court gave them a declaration that they were owners in possession by purchase of the shares of Akbar Khan and Hastam Khan, but not of the share of Mst. Mehr Tabana. The suit was dismissed as against her.
5. On appeal by the petitioners the Additional District Judge, Peshawar confirmed the decision of the trial Court and the High Court in second appeal confirmed the decision of the Courts below. The Letters Patent Appeal was dismissed in limine. The petitioners now seek special leave to appeal.
6. It is contended on their behalf that the sale deed in favour of the petitioners clearly recites that the lands belong to the vendors Akbar Khan and Hastam Khan alone and that Mst. Mehr Tabana had no share in it. This declaration will not bind Mst. Mehr Tabana who was not a party to the deed. It cannot, therefore, be claimed that she too had also sold her share.
7. Her right title and interest in the properties were also not barred as clearly the petitioners, by their purchase, became co---sharers with Mst. Mehr Tabana and possession of one co-sharer is possession of all co-sharers unless it is established that a particular co-sharer has been ousted from possession or denied a share in the property concerned by some definite act of ouster. In the present case there was no such evidence. Therefore, no question) of adverse possession arose.
8. The Courts below have rightly dismissed the suit of the petitioners so far as Mst. Mehr Tabana is concerned and we see no reason to interfere.
9. This petition is, accordingly, dismissed.
Cited by 1 case
- FATEH SHER And ANOTHER vs SHARIF KHATOON And 3 OTHER 1986 CLC 320