2003 PLP 909 (CLC)

7. It was also argued that the judgment-debtors were co-sharers in the land comprising Khasra No.2078/756 and if they have transferred given land measuring 1 Kanal, 15 Marlas in lieu of their land situated in Khasra Nos.802, 804 and 805 they could validly transfer the same to the decree-holders subject to adjustment at the time of partition, therefore, no illegality has been committed.

8. I have heard the learned counsel for the parties at length and perused the record of the case thoroughly.

9. Admittedly, the suit for possession was filed by Mir Zaman and 11 others against Mst. Asia Bibi and 7 others for possession of land comprising Khasra Nos.802, 804 and 805 situated at Mauza Nartopa, Tehsil Haripur. The said suit after contest by Mst. Asia Bibi and others was decreed in favour of Mir Zaman and others, plaintiffs. Mst. Asia Bibi and others/judgment-debtors filed appeal before the learned Additional District Judge, Haripur which was also dismissed. The judgment-debtors did not file any further appeal or revision, hence the decree passed in favour of the decree-holders became final. In order in; reap the fruits of the decree, the decree-holders filed execution petition and the learned Executing Court directed that the possession of the property which had been decreed in favour of the decree-holders be delivered to them. Consequently the warrant of possession was issued. At the time of execution of warrant of possession (on 21-11-1994) the decree-holders and judgment-debtors arrived at a compromise. Possession of the decreed property was handed over to the decree-holders except land measuring 1 Kanal, 15 Marlas which was underneath the house of judgment-debtors. In order to save their house, the judgment-debtors handed over possession of land measuring 1 Kanal, 15 Marlas in Khasra No.2078/756 situated at Mauza Parhari which was situated adjacent to Khasra Nos.802, 804 and

805. It is worth mentioning that the judgment -debtors were co-owners/co-sharers in land comprising Khasra No.2078/756.

10. The argument of the learned counsel for the petitioners that the petitioners were necessary parties in the suit but they were not impleaded and the decree-holders and Judgment-debtors colluded with each other, during the execution proceedings hence committed fraud has no force at all. The perusal of the record shows that suit for possession was filed by the decree-holders regarding land comprising Khasra Nos.802, 804 and 805 situated at Mauza Nartopa because land belonging to the decree -holders had been encroached upon by, the judgment-debtors. The learned trial Court as well as Appellate Court on appreciation of evidence adduced by the parties came to the conclusion that the judgment-debtors had encroached upon the land belonging to the decree-holders, therefore, decree in their favour was passed which had become final. Since the petitioners were not co-owners in Khasra Nos.802, 804 and 805 and there was no allegation against them about the encroachment of property of the decree-holders, therefore, they were not necessary parties, hence were not impleaded. No fraud whatsoever was played upon the petitioners at the time of arriving at compromise on 21-11-1994 because the decree -holders wanted to take possession of their land comprising in Khasra Nos.802, 804 and 805 and it was found that land measuring 1 Kanal, 15 Marlas was underneath the constructed house of judgment-debtors, therefore, the judgment-debtors in order to save their constructed house not only handed over the possession of the encroached property to-the decree-holders but also compromised with them and they (decree-holders) were compensated by giving possession of land measuring 1 Kanal, 15 Marlas in Khasra No.2078/756 in lieu of the land which was underneath their house. While arriving at the compromise also, the petitioners were not necessary parties because it is admitted position that judgment-debtors were also co-owners/co-sharers in Khasra No.2078/756 and they could validly alienate their ownership as well as possession without seeking the permission and consent of the petitioners.

11. The argument of the learned counsel for the petitioners that petitioners were co-owners in Khasra No.2078/756 and had constructed their property in the said Khasra which was contiguous to the constructed property of judgment-debtors situated in Khasra Nos.802, 804 and 805 and that the petitioners were co-owners in land measuring 28 Kanals, 3 Marlas in Khasra No.2078/756 and .the judgment-debtors could not hand over possession of land measuring 1 Kanal, 15 Marlas in the said Khasra to the decree-holders because the petitioners had interest in every inch of un-partitioned property comprising Khasra No.2078/756.

12. This argument of the learned counsel for the petitioners has no force at all for the reasons firstly, the property constructed by the petitioners in Khasra No.2078/756 which was contiguous to the constructed property of judgment-debtors in Khasra Nos.802, 804 and 805 was not affected at all with the decree passed in favour of decree -holders because neither the possession of the petitioners of their constructed property was disturbed nor the constructed property of judgment-debtors situated in Khasra Nos.802, 804 and 805 was taken possession of, therefore, if the constructed property of petitioners and judgment-debtors were lying in one compact block, the same were not affected with the decree passed in favour of the decree-holders.

13. Secondly if, the judgment-debtors had handed over possession of land measuring I Kanal, 15 Marlas in Khasra No.2078/756 of the decree- holders. This was done in order to save their house, they were well within their rights to transfer their property situated in Khasra No.2078/756 being co-owners in the said Khasra. The argument of the learned counsel for the petitioners that the petitioners had interest every inch of the property in Khasra No.2078/756 and possession of specific portion could not be handed over to the decree-holders also has no substance because the petitioners not only in their application filed under section 12(2), C.P.C but in the memo. of revision petition have admitted and the learned counsel also reiterated the same at the bar that the petitioners being co-owners in Khasra No.2078/756 had constructed their house over a specific piece of land. If the petitioners could use and utilize specific piece of land for construction of their house in which the judgment-debtors also had interest in every inch, then why the judgment debtors could also not hand over the possession of specific area which was in their possession to the decree-holders. It is by now settled law that if one of the co-owners is in possession of specific area, he can alienate the same subject to final adjustment at the time of actual partition. Similar proposition came up before the august Supreme Court of Pakistan in Muhammad Muzaffar Khan v, Muhammad Yusuf Khan PLD 1959 SC 9 and it was held:-- "A plain consideration of the nature of the transaction in the circumstances of this case could, in our opinion, lead to but one conclusion. 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 ore and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to its vendee, so long as there is no partition between the co-sharers, the vender must be retarded as stepping into the shoes of his transferor qua his ownership rights in the joint pro 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."

14. Similar proposition also came up before this Court in Zardad Khan v. Mst. Safia Begum 1998 CLC 2006 and it was held:-- "A co-sharer under the law can alienate.

Part of his property to a stranger provided he is in possession of that land and such possession shall remain intact until partition takes place between the co-sharers."

15. Likewise in Syed Jamal Shah v. Abdul Qadir 'Shah and others PLD 1955 Pesh. 26 it was held:-- "1 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."

16. Similarly in Muhammad Shafi and others v. Mirza and others PLD 1959 (W.P.) Lah. 398 it was held:-- "From this also it can be reasonably inferred that a co-sharer can legally transfer his rights in the joint property only to the extent of his share and no more."

17. Similar view 'was also taken in the following cited judgments:-- (i) Saad Ullah v. Ibrahim AIR 1925 Lah. 518. (ii) Harnam Singh v. Jagat Singh AIR 1929 Lah. 168 and (iii) Sukhdew v. Parsi AIR 1940 Lah. 573.

18. The argument of the learned counsel for the petitioners that the learned Court below has committed illegality by not providing the petitioners chance to adduce evidence in support of application tiled under section 12(2), C.P.C. has no force at all. It is by now settled law that the Court in which application under section 12(2), C.P.C. is tiled is not under obligation in every case to frame issues, record evidence of the parties and fully adopt the procedure prescribed for decision in a suit and the matter has been left to the satisfaction of the Court which has to regulate its proceedings and keeping in view the nature of allegations in the application, the Court may in its discretion adopt any mode for its disposal. In Nazir Ahmad v. Muhammad Sharif and others 2001 SCMR 46 similar proposition carne up for hearing before the august Supreme Court of Pakistan in which it was held:-- "There can be no cavil with the proposition that the determination of allegations of fraud and misrepresentation ordinarily involve investigation into a question of fact and in such cases an inquiry is ordinarily to be held to decide the matter. But it is not in every case that Court would be under obligation to frame issues, record evidence of the parties and follow the procedure prescribed for decision in a suit. The matter is left to the satisfaction of the Court which has to regulate its proceedings and keeping in view the nature of the allegations in the application the Court may in its discretion adopt any mode for its disposal."

19. Similarly in Messrs Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation, Karachi 2002 SCMR 1761 it was held:-- "As far the allegations that the compromise, decree was obtained by fraud, coercion and misrepresentation, the petitioners failed to substantiate the same as no particulars or details thereof had been given in their application under section 12(2), C.P.C. and mere allegation not supported by any material, would not invariably warrant inquiry or investigation in each case. It is for the trial Court to see whether the facts and circumstances of the case require further probe into the allegations or not. Where the Court finds that further inquiry is required, it would frame issues and record evidence of the parties and if it is of the opinion that no inquiry is required, it can dispense with the same and proceed to decide the application. So, it is not incumbent on the trial Court to frame issues in each and every case but it depends upon the facts and circumstances of each case."

20. Keeping in view the above dicta laid down by the august Supreme Court of Pakistan it can be safely held that the learned Additional District Judge did not commit any illegality by not framing issues and recording evidence of the petitioners. The net result of the above discussion is that the petitioners were neither necessary parties in the suit filed by the decree-holders against judgment-debtors nor were the judgment-debtors required to obtain the permission and consent of the petitioners for transferring land measuring 1 Kanal, 15 Marlas in favour of the decree-holders in Khasra No.2078/756 and no fraud whatsoever has been committed by the parties to the suit while arriving at compromise between them during the execution proceedings. Since the allegations levelled in the application under 12(2), C.P.C. were of the nature which did not require enquiry, therefore, the learned Additional, District Judge, did not commit any illegality by not framing issues ands inviting the evidence of the parties. I have not been able to find out any illegality or material irregularity or any jurisdictional error or defect warranting interference in the impugned judgments and orders passed by the Courts) below, I, therefore, dismiss the revision petition in hand with no orders as to costs. S.A.K./727/P Petition dismissed.