2003 PLP 349 (MLD)

The judgment and decree dated 26‑10‑1‑991 of the learned Additional District Judge have been assailed in this revision petition, whereby while reversing the judgment and decree dated 8‑12‑1986 of the learned trial Court, suit for declaration filed by the petitioner has been dismissed. It arises out of the following circumstances.

2. The respondent herein filed a suit for possession in respect of the land measuring 42 Kanals, 17 Marlas out of land measuring 172 Kanals owned by the petitioner, who confessed judgment. Accordingly, it was decreed on 5‑3‑1978. On 14‑5‑1983 the petitioner filed a suit challenging the decree aforesaid on the ground that it was violative of M.L.R. No.64 (1959) and M.L.R. 115 (1972), the respondent had not paid the sale consideration of Rs.20,000 and that the petitioner continued to remain in possession of the disputed land. The suit was contested and the parties led evidence in support of their respective pleas. The learned trial Court decreed the suit on 8‑12‑1986 on the basis of its finding that since the petitioner continued to remain in possession of the disputed land and the decree dated 5‑3‑1978 had not been implemented he was owner thereof. The legality of the decree, on the touchstone of M.L.R. 64 and M.L.R. 115, was not determined and it was left to the Revenue Officer to examine it under relevant law if the said decree was sought to be executed. The respondent filed an appeal. The learned First Appellate Court reappraised the entire evidence and found that since the petitioner was owner of more than the subsistence holding while the respondent was already an owner of the estate, the decree did not violate the provisions of M.L.R. 64 and M.L.R.

115. It was further observed that an application under section 12(2) of the Code of Civil Procedure being competent the suit was not maintainable. It was further found that since the passing of the decree in favour of the respondent he had become a co‑sharer in the property, possession of one co‑sharer was possession of all. Accordingly, the appeal of the respondent was allowed and the suit of the petitioner was dismissed.

3. The learned counsel for the petitioner contends that decree dated 5‑3‑1978 having not been executed it was rendered inoperative and, therefore, the petitioner was entitled to the declaration claimed in the suit. He relied on the reasoning of the learned trial Court. It was further contended that in fact the decree was not challenged on the ground of fraud and misrepresentation, the suit was competent and it has erroneously been held by the learned First Appellate Court that application under section 12(2) of the Code of Civil Procedure should have been brought.

4. On the other hand, the learned counsel for the respondent has defended the impugned judgment and decree on the reasons recorded therein.

5. The submissions made by the learned counsel for the parties have been considered. Perusal of the plaint shows that the decree, dated 5‑3‑1978 was nor challenged on the ground that it had not been executed. Further, this was a question for the Executing Court to determine. Perusal of the decree dated 5‑3‑1978 shows that the respondents had filed a suit for 1453/5835 share which measured 42 Kanals, 17 Marlas out of the total holding of the petitioner measuring 172 Kanals. Thus, with the passing of the decree he became a co‑sharer in the joint Khata and as rightly observed by the learned First Appellate Court possession of one co‑sharer enures to the benefit of all co‑sharers. Therefore, the suit of the petitioner could not have been decreed only on the ground that the land in dispute was in possession of the petitioner or that the decree dated 5‑3‑1978 had not been executed.

6. The decree dated 5‑3‑1978 was passed with the consent of the petitioner. He could not be allowed to turn around to say that it should be set aside because he continued to remain in possession of it was violative of M.L.R. 64 and M.L.R. 115.

7. For what has been stated above, there is no merit in this revision petition which is, accordingly, dismissed. H. B. T./B‑116/1 Revision dismissed.