2001 PLP 376 (MLD)

Nughman Haider Zaidi for Appellants. Nemo for Respondents. Date of hearing: 4th October, 2000. Respondent No .1 (Maratab Ali, deceased) purchased the suit land measuring 61 Kanals, 3 Marlas vide Mutation No. 116 attested on 14‑12‑1973. He then proceeded to gift away the land in favour of respondents Nos.2 to 10 vide Mutation No.334 attested on 18‑6‑1974. On 14‑12‑1974 the appellant claiming to be a co‑sharer in the suit land and also owner in the estate filed a suit for possession of the suit land by pre emption. The suit was resisted by the respondents. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit on payment of Rs.28,000 vide judgment and decree, dated 6‑12‑1979. Feeling aggrieved the respondent filed a first appeal which was heard by a learned Additional District Judge, Jhang who allowed the same and dismissed the suit of the appellant vide judgment and decree, dated 14‑5‑1981.

2. Learned counsel for the appellant contends that the evidence has been misread by the learned Additional District Judge while setting aside the decree of the learned trial Court. No one has turned up for the respondents who are proceeded against ex parte.

3. I have gone through the record of the learned trial Court, with the assistance of the learned counsel. I find that the appellant claimed to be a co -sharer in the suit land on the basis of a decree passed in his favour and against Giiulam Farid, vendor. This document is on record as Exh.P.3. This is a compromise decree passed on an agreement which is on record as Exh.P.7. An examination of these two documents shows that the appellant had filed a suit for specific performance of an agreement to sell 99 Kanals, 11 Marlas of land comprised in Square Nos.140, 182, 186, 187 and

181. Vide Exh:P.7 it was agreed that the said Ghulam Farid (present vendor) has sold the land comprising Killas Nos. 2/1, 9/2 of Square No. 140, Killas Nos. 10, 13/1 of Sqaure No. 182, Killas Nos. 10, 11, 20/1 Square No. 186 and Killa No.4 of Square No. 187 total measuring 46 Kanals. 7 Marlas to the appellant. This compromise was incorporated in the decree (Exh.P.3), dated 2,6‑6‑1973. The relevant Register Haqdaran Zamin for the year 1972‑73 is available at pages 89 to 91 of the trial Court's file. It shows that the said Ghulam Farid was the sole owner in the entire Khata. A perusal of the said decree in the light of said revenue record does go to support the observation of learned Additional District Judge that the said Ghulam Farid was the sole owner of the entire Khata and he transferred specific Killas Nos. to the appellant. On the said factual basis he has recorded the finding that the appellant cannot be deemed to be co‑sharer in the said Khata and the learned Additional District Judge has relied upon the judgment of this Court reported as AIR 1947 Lahore 184 and 157 India Cases

964. The said judgments do not in terms lay down the proposition canvassed in the impugned judgment of learned A.D.J. However the contentions are fully supported by the judgment of the Supreme Court of Pakistan in the case of Ali Muhammad v. Sher and another (1987 SCMR 207) wherein it was observed:‑‑ "Admittedly specific Killas had been sold by Khan Masood Ahmad Khan of his landed property to the appellant just as he had sold specific Kiila numbers of his property to the respondents. Sale of specific Killas numbers to the appellant would not make the appellant co‑sharer in the property with Khan Masood Ahmad Khan. Even in para. one of his plaint before the trial Court the appellant had admitted that Khan Masood Ahmad Khan was the sole properietor of the property in question. Obviously if specific Killas numbes had been sold by Khan Masood Ahmad Khan to the appellant it would not amount to the sale of unspecified or definite share so as to make him a co‑owner with Khan Masood Ahmad Khan in the said Khata. " 'I therefore, find that the impugned judgment of the learned‑Additional District Judge is in consonance with sound legal principles and does not need to be interfered with in this R.S.A. Accordingly the R.S.A. is dismissed leaving the parties to bear their own costs. Q. M. H./M.A.K./H‑21/L , Appeal dismissed.