Case law on family partition have not any value without affirmation from revenue authority .
**عدالتی حکم کا خلاصہ:**
**عدالت:** لاہور ہائی کورٹ، راولپنڈی بنچ
**تاریخ:** 15 اور 16 نومبر 2023
**مقدمہ:** 2017 کا سول نظرثانی نمبر 341-D
** پارٹیاں:**
- **درخواست گزار:** مبارک احمد
- **جواب دہندگان:** محمد حیات (متوفی) اپنے قانونی ورثاء اور دیگر کے ذریعے
**پس منظر:**
کیس میں مشترکہ ملکیت ہونے کا دعویٰ کی گئی جائیدادوں کی تقسیم شامل ہے۔ درخواست گزار نے استدلال کیا کہ جائیدادوں کو نجی طور پر تقسیم کیا گیا تھا اور قانونی چارہ جوئی کے دوران اس کی خریداری کو تحفظ فراہم کیا گیا تھا۔ نچلی عدالتوں نے جائیدادوں کو مشترکہ قرار دیتے ہوئے باضابطہ تقسیم کا حکم دیا تھا۔
**فیصلہ:**
1. **پراپرٹیز کی حیثیت:**
لاہور ہائی کورٹ نے نچلی عدالتوں کے اس فیصلے کو برقرار رکھا کہ جائیدادیں اب بھی مشترکہ ہیں اور کسی سرکاری یا قانونی طریقے سے تقسیم نہیں کی گئیں۔ مدعا علیہان کی طرف سے دعوی کردہ نجی تقسیم کو ریونیو آفیسر کی طرف سے باقاعدہ تصدیق نہ ہونے کی وجہ سے قانونی طور پر تسلیم نہیں کیا گیا۔
2. **فروخت کا لین دین:**
ہائی کورٹ نے توثیق کی کہ درخواست گزار کے حقوق، بطور حقیقی خریدار، جائیدادوں کی حیثیت کو تبدیل نہیں کرتے ہیں۔ جواب دہندہ نمبر 13 سے اس کی خریداری نے جائیداد کو مشترکہ طور پر رکھنے سے تبدیل نہیں کیا۔
3. **جزوی تقسیم:**
عدالت نے پایا کہ اس مقدمے میں تمام مشترکہ جائیدادیں شامل ہیں اور یہ جزوی تقسیم کے اصول سے متاثر نہیں ہے۔
**ترتیب:**
لاہور ہائیکورٹ نے نچلی عدالتوں کے فیصلوں کو چیلنج کرنے والی درخواستیں خارج کر دیں۔ تقسیم کا ابتدائی حکمنامہ، جیسا کہ ٹرائل کورٹ نے جاری کیا تھا، کی توثیق کی گئی تھی، اور جائیدادوں کو مشترکہ ملکیت کی حیثیت کے مطابق تقسیم کیا جانا تھا۔
MMust read judgement
Judgment Sheet
LAHORE HIGH COURT
RAWALPINDI BENCH RAWALPINDI
JUDICIAL DEPARTMENT
….
CIVIL REVISION NO.341-D of 2017
MUBARAK AHMAD
Versus
MUHAMMAD HAYAT (Deceased) Through His Legal Heirs and Others
JUDGMENT
Date(s) of hearing:
15.11.2023 & 16.11.2023
Petitioner by:
Sh. Ahsan-ud-Din, Advocate.
Respondents No.1A to 1D
Mr. Mujeeb ur Rehman Kiani,
by:
Advocate.
Respondents No.2 to 12 by: M/s Asim Sohail and Sana Javed,
Advocates.
Respondents No.13 &
Sh. Kamran Shahzad Siddiqui,
14-A, 14-B by:
Advocate.
MIRZA VIQAS RAUF, J. This petition as well as
connected petition (Civil Revision No.216-D of 2017) are arising
from the judgment and decree dated 23rd January, 2017 passed by the
learned District Judge, Attock, whereby he proceeded to dismiss the
appeal of the petitioners of both these petitions as well as respondent
No.14 and affirm the judgment and decree dated 18th October, 2007
passed by the learned Civil Judge Class-I, Attock. This judgment
shall thus govern both these petitions.
2.
Facts forming background of these petitions are that
predecessor-in-interest of respondents No.1A to 1D namely
Muhammad Hayat (respondent No.1) and respondents No.2 & 3
Civil Revision No.341-D of 2017
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(hereinafter referred to as “respondents”) instituted a suit for separate
possession seeking partition of properties duly mentioned in the
headnote of the plaint (hereinafter referred to as “suit properties”)
with the averments that “suit properties” are joint interse parties. It is
asserted that the original owner of “suit properties” numbered as
")د(،)ج(،)ا(" was Muhammad Aslam son of Khudadad and he was
also owner of 1/4th share in the property )ب( forming part of “suit
properties” and rest 3/4 share in the said property was owned by
respondent No.9. As per averments of the plaint Muhammad Aslam
died in the year 1976, who survived respondents No.4 to 6 as
daughters alongwith respondents No.7, 8 & 14 being widows and
respondents No.2, 3 & 13 as his sons. It is mentioned that share of
each son is 7/48 whereas share of each daughter is 7/96 and widow is
entitled to 1/16 share each. It is also asserted that since the
“respondents” purchased the land from respondents No.4 to 7 from
the suit “Hevali” mentioned at serial No.)ا( and thus they became
owners of 70/96 share whereas respondents No.4 to 7 were left with
no right of ownership with the “suit properties”.
3.
Suit was resisted by the petitioner, who purchased a piece of
property forming part of “suit properties” from respondent No.13
during proceedings and thus while submitting his written statement
he pleaded that he is bonafide purchaser and his rights are protected
under Section 41 of the Transfer of Property Act, 1882. Suit was also
resisted by respondents No.13 & 14, who submitted their written
statement raising multiple objections. It would not be out of place to
mention here that respondent No.13 is the petitioner in the connected
petition. Out of divergent pleadings of the parties multiple issues
were framed by the trial court, who after recording of evidence from
both the sides proceeded to pass the preliminary decree vide
judgment dated 18th October, 2007. Feeling dissatisfied the
petitioners in both these petitions as well as respondent No.14
preferred appeal but same was dismissed vide judgment and decree
dated 23rd January, 2017, which is now impugned in these petitions
Civil Revision No.341-D of 2017
-3-
under Section 115 of the Code of Civil Procedure (V of 1908)
(hereinafter referred to as “C.P.C.”).
4.
Sh. Ahsan-ud-Din, Advocate representing the petitioner
namely Mubarak Ahmad submitted that his client purchased 03
Marla property in the constructed shape from respondents No.13 &
14 through registered sale deed and his rights are protected under
Section 41 of the Transfer of Property Act, 1882. It is contended that
validity of the sale deed in favour of the petitioner has never been
questioned by the “respondents” in their suit. Learned counsel while
making reference to the statement of respondent No.2, who appeared
as PW1 submitted that the “respondents” though did not include all
the joint properties in their suit but suit was decreed preliminary in
negation of principle of partial partition. Learned counsel
emphasized that concurrent findings are the outcome of gross
misreading and non-reading of evidence. In support of his
contentions, learned counsel placed reliance on GHULAM RASOOL and
another versus MUHAMMAD KHALID and 2 others (2006 YLR 2289).
5.
Sh. Kamran Shahzad Siddiqui, Advocate representing
respondents No.13 & 14 and also petitioner in connected petition
submitted that sufficient evidence was though produced by the
petitioner that “suit properties” are in respective possession of the
parties under a family settlement but no heed was paid to this
material aspect at all. Learned counsel contended that concurrent
findings are tainted with material irregularities and as such not
tenable.
6.
Conversely, Mr. Mujeeb-ur-Rehman Kiani, Advocate
representing respondents No.1A to 1D submitted that parties are
admittedly co-owners. He added that no tangible material was
produced by the petitioner that “suit properties” were partitioned
under a family settlement and as such suit was rightly decreed. It is
contended by learned counsel that mere private partition is even
otherwise not an hurdle in a suit for partition claiming separate
possession. Learned counsel submitted that the petitioner namely
Civil Revision No.341-D of 2017
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Mubarak Ali purchased the property during the pendency of the suit
and as such he would only step into the shoes of his vendor and will
became co-owner. Learned counsel argued that “respondents”
included all the joint properties interse parties in the suit and it is not
hit by the principle of partial partition. Placed reliance on
MUHAMMAD YOUSAF versus ADDITIONAL DISTRICT JUDGE,
FEROZEWALA and others (PLD 2023 Lahore 503) and SAKHI MUHAMMAD
and others versus HAJI AHMED and others (2023 CLC 380).
7.
On the other hand, M/s Asim Sohail and Sana Javed,
Advocates representing respondents No.2 to 12 adopted the
arguments of learned counsel representing respondents No.1-A to
1-D.
8.
Heard. Record perused.
9.
This case has a checkered history at its back. There are four
properties in toto forming subject matter of the suit. It appears from
the record that initially suit was dismissed by the learned Civil
Judge, which judgment was assailed in appeal before the learned
Additional District Judge, Attock but appeal was dismissed
whereafter the “respondents” challenged the concurrent findings
before this Court through Regular Second Appeal No.16 of 1984.
The appeal was ultimately accepted by way of judgment dated 08th
March, 2001 and matter was remanded to the trial court for deciding
it afresh after recording of further evidence of the parties. In postremand proceedings both the sides produced their further evidence
and finally suit was decreed preliminary vide judgment dated 29th
April, 2002. Feeling dissatisfied, the petitioner preferred an appeal
before the learned Additional District Judge, who proceeded to
dismiss the same and thus findings of the courts below were then
called in question in Civil Revision No.534-D of 2002, which was
allowed by way of judgment dated 27th February, 2004 and case was
remanded to the trial court to decide the same afresh in the light of
issues as originally framed. In the third round, suit was again decreed
preliminary vide judgment dated 18th October, 2007. The petitioners
Civil Revision No.341-D of 2017
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challenged the said judgment and decree through an appeal before
the learned Additional District Judge, Attock, who dismissed the
same. This followed Civil Revision No.383-D of 2008 which was
allowed by way of judgment dated 20th October, 2016 and case was
again remitted to the appellate court with the direction to decide the
appeal afresh as in the earlier judgment the learned Additional
District Judge had posted the issues of some other case whereas
findings were given with regard to the case in hand. After remand
the appeal was heard by the learned District Judge, Attock, who
proceeded to dismiss the same through impugned judgment and
decree dated 23rd January, 2017.
10. It is apparent from the record that suit is mainly resisted by the
petitioner firstly on the ground that the “suit properties” were
partitioned under a family settlement by the original owners in his
lifetime and as such these have lost the status of joint properties and
secondly the “respondents” did not include all the properties of
Muhammad Aslam, predecessor-in-interest of respondents No.2 to 8,
13 & 14 in the suit which renders the same not proceedable. Though
from the pleadings of the parties multiple issues were framed but in
order to circumscribe the matter in controversy in more precise and
specific shape, to my mind following points for determination
emerge before this Court :-
(i). Whether the “suit properties” are joint interse parties or
same have been partitioned under a family settlement?
(ii). Had there been any family settlement what would be its
effect?
(iii). Whether suit is hit by principle of partial partition? and
(iv). What would be the status of sale transaction effected in
favour of petitioner namely Mubarak Ahmad during
the pendency of the suit?
11. Adverting to the moot points, it is observed that point at serial
Nos.(i) & (ii) are not only interlinked but dependent upon each other.
It is evident from the record that the “respondents” at the very outset
Civil Revision No.341-D of 2017
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while instituting suit asserted that the “suit properties” are joint in
nature and not yet partitioned by meets and bounds. Contrary to this
suit was resisted by the petitioners/defendants on the ground that
there is a family partition interse parties by virtue of which all the
co-owners are in possession as per their legal shares. To this effect
claim of the petitioners rests upon the stance taken by respondents
No.13 & 14 in their written statement. The relevant extract is
reproduced below :-
12. It is an admitted fact that the “suit properties” were originally
owned by Muhammad Aslam son of Khudadad, who contracted
three marriages and respondents No.2 to 6 & 13 are his off springs
whereas respondent No.14 Mst. Karam Jan is one of his widows. In
order to prove that the “suit properties” are joint interse parties, the
“respondents” produced Khizar Hayat as PW1, who reiterated the
contents of the plaint. Muhammad Iqbal was produced as PW2. He
too deposed on the same lines. From the perusal of the revenue
record produced by the “respondents” it clearly evinces that the
status of the “suit properties” is recorded as joint. Moreover Mst.
Karam Jan i.e. respondent No.14 when appeared in the witness box
she stated as under :-
It is thus crystal clear that no partition has ever taken place through
any written deed.
13. Chapter XI of the Land Revenue Act, 1967 (hereinafter
referred to as “Act, 1967”) deals with the partition of the joint land.
Civil Revision No.341-D of 2017
-7-
Section 147 of the Act ibid provides a mechanism for affirmation of
partitions privately effected which is reproduced below for ready
reference and convenience :-
“147. Affirmation of partition privately effected.– (1) In
any case in which a partition has been made without the
intervention of a Revenue Officer, any party thereto may apply
to a Revenue Officer for an order affirming the partition.
(2) On receiving the application, the Revenue Officer shall
enquire into the case, and if he finds that the partition has in fact
been made, he may make an order affirming it and proceed under
sections 143, 144, 145 and 146, or any of those sections, as
circumstances may require, in the same manner as if the partition
had been made on an application to himself under this Chapter.”
The above provision clearly manifests that if a party pleads some
private partition effected under some family settlement with regard
to partition of joint land, he has to apply to the revenue officer
obtaining an order for affirmation of such partition. In other words
in absence of any order of affirmation in terms of Section 147 of the
“Act, 1967” party relying upon private partition would be precluded
to claim any right thereunder.
14. It would not be out of context to mention here that Chapter 18
of the Land Record Manual provides a procedure in partition cases
and clause 18.1 especially deals with private partitions. Guidance in
this respect can be sought from MUHAMMAD MUKHTAR and others
versus MUHAMMAD SHARIF and others (2007 SCMR 1867). Reference in
this regard can also be made to Mst. WALAYAT BEGUM and 3 others
versus MUHAMMAD AFSAR and 3 others (2014 CLC 1103). The relevant
extract from the same is reproduced below :-
“6……... It is an admitted fact that Bostan (the predecessor of
the present appellants) and the respondent/defendant
Muhammad Afsar along with others are co-sharers in the
khewat of the disputed land. The respondent/defendant filed an
application for partition before the Revenue Assistant and ex
parte proceedings were ordered against the respondent in the
partition proceedings. Partition deed Exh.D.N. was issued and
ultimately a warrant of possession was issued in the name of
respondent/ defendant Muhammad Afsar to the extent of the
land measuring 2 Kanals and 1 Marla. The said Muhammad
Afsar was declared owner in possession of the said land. It is a
settled principle of law that private partition or family
settlement cannot be declared as final partition. Any of the cosharers can approach the proper forum for partition of the
jointly owned land in accordance with the provisions of law.
The record reveals that the predecessor of the present
Civil Revision No.341-D of 2017
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appellants Bostan refused service of the notice in the partition
proceedings and thereafter ex parte proceedings were ordered
against him. It was not proved that the service was conducted
fictitiously. It was not stated by the said Bostan that what loss
was occurred due to partition proceedings? If at all, any
fluctuation/ decrease or increase in the quantity of the land is
found, the only proper forum for redressal regarding the same
is the revenue court designated for the purpose. Moreover, it
has not been brought on record and even has not been proved
that how much deficiency in the quantity of the land has found
in the shares of the said Bostan? It is an admitted principle of
law as well that the official partition is always preferred to the
private partition. No co-sharer can be deprived of his right only
due to this fact that the other co-sharer is in possession of any
land.
7.
It was not proved by the present appellants that when
they got knowledge regarding the partition proceedings. The
record also reveals that the said Bostan filed a suit for
permanent injunction on 22-8-2000 after issuance of warrant of
possession in favour of the respondent/ defendant Muhammad
Afsar. The said suit was dismissed for non-prosecution on 9-3-
2002. This fact indicates that the said Bostan had knowledge of
the partition process and he remained absent from the partition
proceedings intentionally and he filed the suit for permanent
injunction when the warrant of possession was issued in the
name of the respondent Muhammad Afsar. So, the suit under
appeal was filed beyond the period of limitation. The present
appellants have relied on private partition only. The private
partition does not change the nature of the joint property and
the same will remain joint until and unless it is partitioned by
the revenue authorities according to the provisions of law. It is
a settled principle of law as well that no suit for possession can
be filed by a co-sharer having the version that he is already in
possession of a part of the disputed land and such suit cannot
be treated under section 9 of the Specific Relief Act.”
15. In the case of SAKHI MUHAMMAD and others versus HAJI AHMED
and others (2023 CLC 380), while dealing with similar question this
Court held as under :-
“7.
Section 147 of the "Act, 1967", provides a
mechanism for affirmation of partitions privately effected,
which reads as under:-
147. Affirmation of partitions privately effected. (1) In
any case in which a partition has been made without
the intervention of a Revenue Officer, any party thereto
may apply to a Revenue Officer for an order affirming
the partition.
(2) On receiving the application, the Revenue Officer
shall enquire into the case, and if he finds that the
partition has in fact been made, he may make an order
affirming it and proceed under sections 143, 144, 145
and 146, or any of those sections, as circumstances may
require, in the same manner as if the partition had been
made on an application to himself under this Chapter."
From the bare perusal of above referred provision of law, it
clearly evinces that if a party is relying upon some family
settlement with regard to partition of joint land, any party
interested therein has to apply to the Revenue Officer for
obtaining an order for affirmation of such partition. In
Civil Revision No.341-D of 2017
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absence of any such order, party relying upon the private
partition would be precluded to claim any right therefrom.
Furthermore, Chapter 18 of the Land Record Manual
provides a procedure in partition cases and clause 18.1
especially deals with private partitions. To understand the
true import of private partition, guidance can be sought from
Muhammad Mukhtar and others v. Muhammad Sharif and
others (2007 SCMR 1867). Reference in this regard can also
be made to Mst. Walayat Begum and 3 others v. Muhammad
Afsar and 3 others (2014 CLC 1103).”
From the above analysis it can safely be held that no family
settlement has ever taken place and the “suit properties” are still
joint interse parties.
16. Next comes the question relating to partial partition, it appears
from the record that to this effect respondents No.13 & 14, out of
them former is also petitioner in the connected petition, while
submitting their written statement objected the maintainability of the
suit on the ground that “respondents” did not include the whole
properties owned by Muhammad Aslam in the suit. To this effect
learned counsel for the petitioner has heavily relied upon the
statement of Khizar Hayat Khan (PW1). Attending this question it
is noted that from the bare perusal of plaint, it appears that the
“respondents sought partition of three “Hevalies” one of which is
situated in the revenue limits of Baryar whereas other two falls
within the limits of revenue estate of Nawa, fourth and last property
is in the shape of drawing room “بیٹھک” which too falls within the
territorial limits of revenue estate of Nawa. The objection of partial
partition was taken by respondents No.13 & 14 without mentioning
as to which property or properties have not been included in the suit.
For the purpose of reference, relevant extract from the written
statement is reproduced below :-
The above was clearly a vague assertion and even during evidence
no specific property was pointed out either by the petitioner or
respondents No.13 & 14. So far statement of Khizar Hayat (PW1) is
concerned, on the basis of which learned counsel has made emphasis
that the suit is hit by partial partition, it would be relevant to have a
glimpse of the said part of statement, which reads as under :-
Civil Revision No.341-D of 2017
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From the above portion of statement, it is crystal clear that the
“Hevali” Dhok Fateh Wali is located in the revenue estate of Nawa.
The petitioner has failed to bring on record any material to
substantiate that “Heavli” Dhok Fateh Wali is an independent and
separate property thus one cannot say that the suit is not proceedable
being hit by principle of partial partition. So far judgment in the case
of Ghulam Rasool’s supra is concerned, it is observed that same is
not applicable to the case in hand, as it was founded on entirely
different facts and circumstances.
17. Coming to the last point of controversy relating to sale
transaction effected in favour of the petitioner, it is observed that
undoubtedly said transaction took place during the pendency of the
suit. The transaction thus would be governed in terms of Section 52
of the Transfer of Property Act, 1882 on the touchstone of principle
of lis pendens. There is no cavil to the proposition that a co-sharer
has every right to transfer or sell the joint property to a third person
but such transfer or alienation is always dependent upon the actual
share of such co-owner and if he transfers or alienates the property
within his share, the vendee will step into his shoes accordingly. Law
to this effect is well settled that no co-sharer can sell joint property
with specific boundaries if any such transaction is made that would
always be the subject to the partition. Guidance in this respect can be
sought from Mst. TABASSUM SHAHEEN versus Mst. UZMA RAHAT and
others (2012 SCMR 983) wherein the Supreme Court of Pakistan held
as under :-
“5.
The afore-referred provision enshrines the age old
and well established principle of equity that ut lite pendente
nihil innovetur (pending litigation nothing new should be
introduced) and stipulates that pendente lite parties to
litigation wherein right to immovable property is in
question, no party can alienate or otherwise deal with such
property to the detriment of his opponent. Any transfer so
made would be hit by this Section. The doctrine by now is
recognized both in law and equity and underpins the
rationale that no action or suit would succeed if alienations
made during pendency of proceedings in the said suit or
Civil Revision No.341-D of 2017
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action were allowed to prevail. The effect of such alienation
would be that the plaintiff would be defeated by defendants
alienating the suit property before the judgment or decree
and the former would be obliged to initiate de novo
proceedings and that too with lurking fear that he could
again be defeated by the same trick. The doctrine of lis
pendens in pith and substance is not only based on equity but
also at good conscience and justice. In Lalji Singh v.
Rameshuwar Misra ((1983) 9 All LR 269 (271) (All)), the
essential ingredients of section 52 ibid or the conditions
precedent to attract this principle were construed as follow:--
(i)
the pendency of any suit or proceeding in a court law:
(ii)
the court must have jurisdiction over the person or
property;
(iii)
the property must have specifically described and
should be affected by the termination of the suit or
proceedings;
(iv)
the right to the said property be directly and
specifically be in question in any suit or proceeding;
(v)
an alienation of such immovable property without the
permission or order of the court; and
(vi)
the alienation should be during the pendency of
any such suit or proceeding and a suit or proceeding
in question is not collusive.
6.
From our jurisdiction in recent past, the ambit and
import of lis pendense came up for consideration before a
Full Bench of this Court in Muhammad Ashraf Butt v.
Muhammad Asif Bhatti (PLD 2011 SC 905) and at page 912,
one of us (Mian Saqib Nisar, J) speaking for the Court
observed as follows:--
"The rule unambiguously prescribes that the rights of the
party to the suit, who ultimately succeed in the matter
are not affected in any manner whatsoever on account of
the alienation, and the transferee of the property shall
acquire the title to the property subject to the final
outcome of the lis. Thus, the transferee of the suit
property, even the purchaser for value; without notice of
the pendency of suit, who in the ordinary judicial
parlance is known as a bona fide purchasers in view of
the rule/doctrine of lis pendens shall be bound by the
result of the suit stricto sensu in all respects, as his
transferor would be bound. The transferee therefore does
not acquire any legal title free from the clog of his
unsuccessful transferor, in whose shoes he steps in for
all intents and purposes and has to swim and sink with
his predecessor in interest ...............................................
...............................................................................
........................................... The foundation of the
doctrine is not rested upon notice, actual or constructive,
it only rest on necessity and expediency, that is, the
necessity of final adjudication (Emphasis supplied) that
neither party to the litigation should alienate the
property so as to effect the rights of his opponent. If that
was not so, there would be no end to litigation and the
justice would be defeated. In support of the above,
reliance is placed upon Messrs Aman Enterprises v.
Messrs Rahim Industries Ltd. and another (PLD 1993 SC
292), Muhammad Nawaz Khan v. Muhammad Khan and
2 others (2002 SCMR 2003). Besides, in West Virginia
Pulp and Paper Co. v. Cooper, 106 S.E. 55, 60, 87 W.Va.
781, it has been held the doctrine of "lis pendens" is that
Civil Revision No.341-D of 2017
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one who purchases from a party pending suit a part or
the whole of the subject-matter involved in the litigation
takes it subject to the final disposition of the cause and is
bound by the decision that may be entered against the
party from whom he derived title.
In Tilton v. Cofield, 93 U. S. 168, 23 L.Ed, 858, the view
set out is "the doctrine of lis pendens is that real
property, when it has been put in litigation by a suit in
equity, in which it is specifically described, will, if the
suit is prosecuted with vigilance, be bound by the final
decree, notwithstanding any intermediate alienation;
and one who intermeddles with property in litigation
does so at his peril and is as conclusively bound by the
results of the litigation, whatever they may be, as if he
had been a party from the outset".
Reliance in this respect can also be placed on MUHAMMAD ASHRAF
BUTT and others versus MUHAMMAD ASIF BHATTI and others (PLD 2011
Supreme Court 905) and KHADIM HUSSAIN versus ABID HUSSAIN and
others (PLD 2009 Supreme Court 419).
18.
Since the petitioner has purchased 10 Marla from respondent
No.14 which is within his legal share, so sale deed to the extent of
such transfer would remain intact but the petitioner cannot claim
exclusive possession on the basis of schedule of boundaries
mentioned therein. He would be treated as co-owner/co-sharer and
would be entitled to get the property according to his entitlement in
the process of partition in terms of preliminary decree passed by the
trial court. Reference to this effect can be made to Mst. KALSOOM
MALIK and others versus ASSISTANT COMMISSIONER and others (1996
SCMR 710) and MUHAMMAD SHARIF and 3 others versus GHULAM
HUSSAIN and another (1995 SCMR 514).
19. In the case of MUHAMMAD MUNAWAR BAJWA versus Mst.
ZUBERA SHAHEEN and another (2004 CLC 441) this Court while
reiterating the above principles held as under :-
“17……….While dealing with a similar question, in Syed
Jamal Shah v. Abdul Qadir Shah and others PLD 1955 Pesh.
26, it was observed at page 30 of the Report as follows:--
"I consequently hold that a person, who is in exclusive
possession of a certain portion of a joint property, can
alienate that property, but then the alienation will be subject
to any adjustment which takes place at the time of the
partition of the joint property, and the person, to whom that
joint property is allotted, shall take that property free of
such alienation.
Civil Revision No.341-D of 2017
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In Muhammad Muzaffar Khan v. Muhammad Yusuf Khan
PLD 1959 SC 9 the Honourable Supreme Court had declared
the law thus:--
"The vendee of a co-sharer who owns an undivided Khata
in common with another, is clothed with the same rights as
the vendor has in the property no more and no less. If the
vendor was in exclusive possession of a certain portion of
the joint land and transfers its possession to his vendee, so
long as there is no partition between the co-sharers, the
vendee must be regarded as stepping into the shoes of his
transferor qua his ownership rights in the joint property, to
the extent of the area purchased by him, provided that the
area in question does not exceed the share which the
transferor owns in the whole property. Alienation of
specific plots transferred to the vendee would only entitle
the latter to retain possession of them till such time as an
actual partition by metes and bounds takes place between
the co-sharers".
A similar question came up for consideration before the
Supreme Court of Azad Jammu & Kashmir in the case reported
as Mustafa Khan and 3 others v. Muhammad Khan and another
PLD 1978 SC (AJ&K) 75. The case-law was extensively
reviewed at pages 77-79 of the Report, and it was observed as
follows:--
"After careful examination of the law on the point and the
facts of this case, we are of the view that a co-sharer in
possession of specific field numbers can validly transfer
such land, even if his share in such specific field numbers
exceeds his share, provided it does not exceed his over all
entitlement of the share in the whole land. Of course the
vendees' rights will be subject to adjustment on partition.
But such a sale cannot be legally challenged on the mere
ground that the land sold exceeds the share of the vendor in
the specific numbers.
For this we may refer to AIR 1925 Lah. 518. In that case
Mr. Justice Martineau, was confronted with the question
whether a co-sharer in a Shamilat land on a transfer made
by another co-sharer of land under his sole and exclusive
possession, can prevent transferee from construction of
building on such land. The learned Judge after discussing
all aspect of the case answered the proposition in
affirmative and stated that--
"Although Allahdiya and Kimun not being the sole owners
of the land could not sell the full proprietary rights, the sale
by them nevertheless holds good to the extent of conveying
the rights which they could sell including the right to retain
possession till partition. It has been held in Muhammad
Amin v. Karam Das, (1924 Lah. 293) in which various
rulings, on the point have been considered, that when a
co-sharer has been long in possession of a portion of the
Shamilat land no other co-sharer can oust him therefrom or
even get joint possession with him as long as a partition of
the Shamilat does not take place. The plaintiff has the same
rights in the land that his predecessor in title had. He is
entitled to undisturbed possession of the land as long as the
Shamilat is not partitioned, and the defendants have no
right to prevent him from building on the land".
A similar point came up for decision before Lahore High Court
in AIR 1938 Lah. 465. In that case, the point to be determined
was whether, in a case of joint "Khata" where one co-sharer
had been in exclusive possession for a long time of a portion of
Civil Revision No.341-D of 2017
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the joint land not exceeding his share in the entire holding,
another co-sharer can dispossess him against his will from such
land. Mr. Justice Tek Chand, relying on AIR 1924 Lah. 293
and AIR 1925 Lah. 518 observed:-
"It is well-settled that in a case of joint Khata, where one
co-sharer has been in exclusive possession of a portion of
the joint land, which does not exceed his share in the entire
holding, another co-sharer cannot dispossess him against
his will from the portion of which he had been in
possession".
Again an identical question came for consideration before the
Oudh High Court in AIR 1939 Oudh 243. In that case Plot
No.2807 was jointly owned by Baldeo Singh and Ambika
Prasad, along with 80 other defendants. They (Baldeo Singh
and Ambika Prasad) had given two leases in respect of this plot
one on 11th of October, 1932 and the other on the 15th of
November, 1932 in favour of defendant No. 1. The leases were
made subject of a regular suit. But it was held that Baldeo
Singh and Ambika Prasad being in exclusive possession of the
land at the time of the lease were competent to lease it out to
defendant No.1 alongwith possession. Mr. Justice Radha
Krishna, held that:--
"The question, therefore, is whether a co-sharer, who has
been in exclusive possession of a certain plot of land
without let or hindrance by other co-sharers, can transfer
the plot to a third person subject to the right of other
co-sharers to obtain a partition of the village. The law on
the point in Oudh seems to me to be well-settled. In 21 OC
214 Lindsay, .J.C. (later Lindsay, J.) held that the general
rule regarding the enjoyment of joint property by the
co-sharers is that one co-sharer has no right to appropriate
specific portions of such property to the exclusion of his
co-sharers except by means of a lawful partition. This rule,
however, is subject to the qualification that where one
co-sharer has been for a long time in peaceful possession of
a portion of the joint property without hindrance or
opposition by his co-owners the latter are not entitled to
eject him except by means of a partition".
In the case AIR 1927 Oudh 467 and AIR 1921 Oudh 106 were
relied upon:--
"The question of entitlement of a co-sharer to transfer the
specific land under his possession was once again
adjudicated in a Division Bench case in AIR 1940 Lah.
473. The Bench consisted of Mr. Justice Tek Chand and
Mr. Justice Bhide Judges. The learned Judge Bhide who
wrote the principal judgment in the case, after discussing
the case-law on the point, observed:-
"As a result, it has been held that a co-sharer who is in such
possession of any portion of a joint Khata, can transfer that
portion subject to adjustment of the rights of the other
co-sharers therein at the time of partition. This view seems
to be consistent with the principle embodied in section 44,
T.P. Act, regarding transfers of their `interests' in joint
property by co-sharers'.
In PLD 1955 Pesh. 26, a similar question was posed to be
determined. It was held by Mr. Justice Muhammad Shafi,
that:--
"A person, who is in exclusive possession of a certain
portion of a joint property, can alienate that property, but
then the alienation will be subject to any adjustment which
takes place at the time of the partition of the joint property,
Civil Revision No.341-D of 2017
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and the person, to whom that joint property is allotted, shall
take that property free of such alienation".
In PLD 1959 S.C. (Pak.) 9 (Full Court case), it was observed
by Mr. Justice S.A. Rahman, who wrote the main judgment
that:--
"Alienation of specific plot transferred to the vendee would
only entitle the, latter to retain possession of them till such
time as an actual partition by metes and bounds takes place
between the co-sharers."
Looked from another angle we come to the same conclusion. It
is conclusively established that the possession of the vendor in
the specific field numbers was due to family arrangement. It is
true that such an arrangement does not extinguish the title of
other co-sharers, but so far as the factum of such a possession
and sale of the specific field numbers is concerned, it certainly
debars other co-sharers to get back such possession or
challenge the sale. This is, of course, subject to adjustment at
the time of partition as would have been the case if the vendor
had not sold the land. Section 115 of the Evidence Act comes
to the aid of vendee in such a case. Mr. Justice Monir, formerly
Chief Justice of Pakistan in his Principles and Digest of the
Law of Evidence, Vol. II, Pakistan Edition, page 1296 says:--
"Family arrangements are arrangements between the
members of a family for the preservation of its piece of
property. The principles upon which such arrangements are
enforced in England are stated in the case of Williams v.
Williams. Such arrangements are constantly entered into in
this country, and, where they have been acted upon and
acquiesced, the Court will not look so much to the
adequacy of the consideration as to the motives and
conduct of the parties. In a settlement of a doubtful right
truth may be on either side, but the essential effect of the
settlement is that further trouble or investigation is put to an
end and a settlement is concluded to restore harmony. The
consideration for such a settlement is the mutual promise
made, or forbearance shown, by one party to the other. In
the absence of fraud or undue influence, it is not, therefore,
open to either party to resile from it afterwards and the
settlement is binding not only on the parties but on their
sons and descendants. A family settlement is binding, even
though a limited owner is a party to it. Where parties settle
a family dispute amicably, take a share of the property,
enter into possession, and subsequently sell or mortgage the
items allotted to them, they are estopped from questioning
the settlement".
AIR 1924 All. 63 may be referred as an authority on point.
In that case a person deliberately by his own conduct got
the name of another person who had no right to inheritance
to a property entered as owner of such property at the time
of mutation. Later on he challenged the mutation. It was
held by the Division Bench of the Court that he was
estopped from subsequently pleading that he was the owner
of the whole property".
In view of this we hold that the appellants' suit is otherwise
too hit by the doctrine of estoppel as because of the family
arrangement they are precluded from claiming their shares
in the specific field numbers in possession of the vendor".
18. The afore-quoted decision of the Supreme Court of Azad
Jammu and Kashmir was cited, with approval, by the Hon'ble
Supreme Court of Pakistan in Shah Hussain v. Abdul Qayyum
Civil Revision No.341-D of 2017
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and others 1984 SCMR 427 wherein it was further held as
follows:--
"We have examined the contentions raised by the learned
counsel and agree with the finding of the learned High
Court Judge in principle i.e. the sale of specific field
numbers by a co-sharer in possession can, for
consideration, alienate the land in possession, and if his
share in such specific field numbers exceeds his share,
provided it does not exceed his over all entitlement in the
land, the vendee's rights would be subject to adjustment on
partition as held in the case cited by the learned Judge
entitled Mustafa Khan and 3 others v. Muhammad Khan
and another PLD 1978 S.C. (AJK) 75".
In Ch. Ghulam Abbas v. Barkat Ali add another 1999 YLR
2190, a learned Judge of this Court held in the following
terms:--
"Law is well-settled that a co-sharer, in exclusive
possession of specific field number can alienate the entire
field number provided the area of the said field number
does not exceed the entitlement of the vendor in the entire
joint holdings. The effect of this sale is that the vendee
steps into the shoes of the vendor and can retain possession
subject to adjustment at the time of partition".
Respectfully following the law laid down in the
aforementioned decisions, I would hold that the sale in favour
of defendant-respondent No. 1 is not open to exception either
on fact or in law, and she can retain possession of the suit-land
till such time as an actual partition by metes and bounds takes
place between the co-owners. The concurrent findings of facts
recorded by the Courts below under Issues 1 and 2, being
neither perverse or whimsical nor arbitrarily, do not call for
interference.”
20. There are concurrent findings of facts recorded by both the
courts below, which are apparently rested upon sound reasoning. The
petitioner has failed to point out any misreading and non-reading of
evidence. The revisional jurisdiction is not meant to unearth another
possible view from the evidence which is contra to the findings
rendered by two courts of competent jurisdiction. The revisional
jurisdiction is to be exercised, while keeping in view the principles
enshrined in Section 115 of “C.P.C.”. The superior courts are always
reluctant to interfere with the concurrent findings, unless some patent
illegality or material irregularity crept up on the record or pointed
out by the petitioner(s). The exercise of revisional powers is always
guided by the necessary pre-conditions laid down in the above
referred provision of law. The scanning of evidence and the perusal
of impugned judgments does not reflect any illegality or material
irregularity, justifying interference by this Court. Reference in this
respect can be made to GHULAM QADIR and others versus Sh. ABDUL
Civil Revision No.341-D of 2017
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WADOOD and others (PLD 2016 Supreme Court 712), Mst. ZARSHEDA
versus NOBAT KHAN (PLD 2022 Supreme Court 21) and MUHAMMAD
SARWAR and others versus HASHMAL KHAN and others (PLD 2022 Supreme
Court 13).
21. For the foregoing reasons, both civil revisions, having no
merits are dismissed with no order as to costs.
(MIRZA VIQAS RAUF)
JUDGE
APPROVED FOR REPORTING
JUDGE