2004 PLP 995 (CLC)

2. Necessary facts for the disposal of the above cases are that Muhammad Sadiq and his son Muhammad Munir were recorded owner of 1/2 share each in land bearing (sic) the total land comprising Khasra No.570 in favour of Mst. Noor Begum. Similarly he transferred total land in Khasra No.571 in favour of Mst. Ghulam Fatima, Muhammad Bashir and Muhammad Fatal, while he was only owner to the extent of 1/2 shale in both the abovementioned Khasras.

3. The petitioner Muhammad Munir, filed two declaratory suits against the transferees in the Civil Court. The same were decreed by the learned trial Court in his favour. The respondents preferred an appeal before the District Judge, Jhelum which came up for hearing before the learned Additional District Judge, who dismissed the same holding that Muhammad Sadiq was owner of only 1/2 share while remaining .1/2 share belonged to Muhammad Munir petitioner. The petitioner .is aggrieved of paragraph No.5 of the judgment of the Appellate Court impugned in Civil Revision No.381-D of 2000, which is as under:-- "That the appellant is entitled to retain possession over the disputed Khasra number till he is ejected in due course of law. However, he has no ownership right in excess of share.

4. Similarly the petitioner is aggrieved of findings recorded in paragraph No.6 of the appellate judgment impugned in Civil Revision No.382-D of 2000, which is as under:- "I do hereby uphold the same with the observation and direction that the appellant is to retain possession over the entire disputed Khasra till she is ejected there from in accordance with law."

5. The respondents preferred Civil Revision No.472-D of 2000 and Civil Revision No.492-D of 2000, whereby they claimed that decree of both the Courts below be set aside and the suit filed by the petitioner (Civil Revision No.381-D of 2000 and 382-D of 2000) be dismissed.

6. Learned counsel for the petitioner contends that both the learned Courts, below have correctly held that sale by Muhammad Sadiq in excess of 1/2 share is nullity in the eye of law. However, his grievance is that the learned Courts protected the possession of the respondents.

7. On the other hand, learned counsel for the respondents in these civil revisions and in connected Civil Revisions Nos.472 and 497 of 2000 controverted the submissions and stated that the decree of the learned trial Court and that of the learned Appellate Court cannot be questioned. According to him the learned Appellate Court should have held that Muhammad Sadiq being owner of 1/2 share had validly transferred 1 /2 share from his entitlement.

8. Muhammad Sadiq and Muhammad Munir were owners of 1/2 shares each in Khasra Nos.570 and 571 respectively. Sale by Muhammad Sadiq of the entire Khasra Nos.570 and 571 was declared to be unlawful by the learned Courts below. The respondents Mst. Noor Begum, Mst. Ghulam Fatima, Muhammad Bashir and Muhammad Fazal have became co-sharers after having purchased the share of Muhammad Sadiq. Possession of one co-sharer is possession of all the co-sharers. Any co-sharer cannot be dispossessed per force. The observation of the learned Appellate Court is, therefore, in accordance with law.

9. In view of the above discussion, I hold that Muhammad Munir petitioner is owner of 1/2 share in Khasra Nos.570 and 571 while Muhammad Sadiq was the owner of remaining 1/2 share. He had validly transferred by way of gift to Mst. Noor Begum his 1/2 share in Khasra No.570. Transfer from Khasra No.571 in favour of Mst. Ghulam Fatima, Muhammad Bashir and Muhammad Fazal is also held to be valid. The parties are co-sharers. In case of dispute in respect of possession of the property, they may seek partition from a competent Court of law.

10. In view of the, above discussion, ail the civil revisions are disposed of in the above term. M.A.W./G-7/L Order accordingly.