2021 PLP 1394 (CLC)

CH. MUHAMMAD IQBAL, J.

Through this civil revision, the petitioners have challenged the legality or judgment and decree dated 13.12.2000 whereby the learned Civil Judge, Multan passed the preliminary decree, appointed local commission to visit the site and suggest the mode of partition in presence of all the parties and the judgment and decree dated 09.02.2013, passed by the learned Additional District Judge, Multan dismissing the appeal of the respondent No. 1 .

2. Brief facts of the case are that respondent No.2 Muhammad Saleem Khan filed suit for possession through partition in respect of property bearing No.2271-C/R.H, Ward Nos.9 Muslim, Fowara Chowk, Abdali Road, Multan and properties No.2015 and 2016 situated at Ward No.9 Muslim, Muhallah Tooya Alam Shah outside Lohari Gate, Multan. Defendants Nos.4 to 7 filed consenting written statements while defendants Nos.2, 8 and 9 were proceeded against ex-parte and defendants Nos.1, 3, 10 and 11 filed contesting written statement. Issues were framed and evidence was recorded. The learned trial court passed preliminary decree vide judgment and decree dated 13.12.2000 and appointed a local commission to visit the site in presence of all the parties and suggested the mode of partition. Respondent No.1 challenged the above preliminary judgment and decree in appeal which was still pending decision. Petitioners purchased the share of respondent No.11 Muhammad Akram during pendency of the appeal and filed application under Order I, Rule 10, C.P.C. in the said appeal which was dismissed by the learned Additional District Judge, Multan vide order dated 22.02.2007. The petitioners challenged the above order through Civil Revision No. 201 of 2007 which was accepted by this Court vide order dated 26.06.2012 and the petitioners were impleaded as respondents Nos.11-A, 11-B and 11-C whereafter the appeal of respondent No.1 against preliminary decree was dismissed by the learned appellate court vide judgment and decree dated 09.02.2013. Hence, this civil revision.

3. I have heard the arguments advanced by the learned counsels for the parties and gone through the record with their able assistance.

4. Admittedly, the petitioners purchased the share of respondent No.11 Muhammad Akram during pendency of the suit for possession through partition and the learned appellate court in Para-19 of its judgment dated 09.02.2013 has observed that the petitioners stepped into shoe of the vendor. Muhammad Akram who has not challenged the said preliminary judgment and decree, as such, preliminary judgment and decree has attained the status of finality and falls under the past and closed transactions which cannot be re-opened merely on the whims and caprice of the party. Reliance is placed on Pakistan International Airlines Corporation v. Aziz ur Rehman Chaudhary and another (2016 SCMR 14). It is settled law that the vendee from a co-sharer who owns an undivided joint Khata is clothed with the same rights in the property no more no less than that of their/his vendor. 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 portion to the vendee would only entitle the latter to retain ostensible possession till such time as an actual legal partition by metes and bounds takes place between the co-sharers as settled by the Hon'ble Supreme Court of Pakistan in a case titled as Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 SC (Pak.) 9), the relevant portion is reproduced as under:- "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 " In another case titled as Shah Hussain v. Abdul Qayum and others (1984 SCMR 427), the Hon'ble apex Court observed as under:- "

5. 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 overall 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 (1). In another case also i.e. Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (2) it was held that the vendee of 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. Thus, we find no force in the arguments of the learned counsel. The petition is, consequently, dismissed." In a case cited as Jan Muhammad and another v. Abdur Rashid and 5 others (1993 SCMR 1463), the Hon'ble Supreme Court of Pakistan has held as under:- "We are afraid, these contentions of the learned counsel have no force because the sale in favour of the petitioners was Hissadari and in the subsequent Revenue Record their possession has consistently been recorded as that of co-sharer and not of exclusive owner. Needless to emphasise that the possession of one co-sharer in law is the possession of all and that any alienation made by the co-sharer in possession cannot put an end to the joint ownership/possession of the property and the transferee co-sharer steps into the shoes of the transferor qua his ownership rights in the joint property no more no less, as held by this Court in case Muhammad Muzaffar Khan v. Muhammad Yousuf Khan (PLD 1959 Supreme Court (Pak.) 9). In this view of the matter the petitioners can only claim ownership in the entire joint property owned by their transferor with the other co-owners and retain possession of the area specifically purchased by them till partition but cannot claim exclusive ownership thereto .." Reliance can also be placed on the case titled as Muhammad Sharif and 3 others v. Ghulam Hussain and another (1995 SCMR 514), relevant portion is reproduced as under:- "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." Reliance is also placed on the cases titled as Ch. Ghulam Abbas v. Barkat Ali and another (1999 YLR 2190), Khadim Hussain and another v. Raja Altaf Hussain Khan and 2 others (2008 CLC 357), Abdul Ghaffar v. Waqas Hafeez and others (2010 CLC 285), Iftikhar Ahmad and others v. Muhammad Nasir (2017 CLC Note 103) and Latif Khan v. Altaf Khan and others 9 others (2018 CLC 608).

5. Learned counsel for the petitioners has not been able to point out any illegality or material irregularity, mis-reading and non-reading of evidence in the impugned judgments and decrees passed by the learned Courts below and has also not identified any jurisdictional defect in the concurrent findings of fact which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the cases titled as Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304), Rashid Ahmad v. Said Ahmad (2007 SCMR 926), Asmatullah v. Amanat Ullah through LRs (PLD 2008 SC 155) and Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469).

6. In view of above, this civil revision is hereby dismissed being devoid of any merits with no order as to costs. However, it is noted that lis between the parties is pending since 1999 as such the learned trial court is directed to finalize the pending lis as early as possible preferably within six months after receipt of certified copy of this order. MQ/A-14/L Revision dismissed.