2002 PLP 2603 (YLR)

Rana Muhammad Afzal Khan for Petitioners. Muhammad Sharif Chauhan for Respondent No.2. Nemo for the Remaining Respondents. Date of hearing: 4th April, 2002. This is a civil revision against the judgment of the learned Additional District Judge, Gujranwala dated 9‑5‑1991 whereby accepting the appeal filed by Ghulam Hailer/respondent No.2, the judgment of the learned trial Judge dated 5‑5‑1990 was set aside resulting in dismissal of the suit filed by the petitioners. Abdul Rahim, respondent No. 1 who was co‑sharer in Khata alongwith petitioners and other co‑sharers had exchanged land measuring 2 Kanals with Hailer/respondent No.2 herein in lieu of 4 Kanals of land from him, vide exchange deed dated 18‑2‑1981. The petitioners herein brought a suit for declaration that specific property comprising joint holding could not be alienated by Abdul Rahim/respondent No.1 in favour of Haider/respondent No.2. The suit was contested. It was tried by the learned trial Court. Both the parties adduced evidence in support of their respective pleas. Abdul Rauf P.W. 1 one of the plaintiff himself appeared as a witness whereas Hailer/respondent/defendant entered the witness‑box. Some documentary evidence was also brought on record. On consideration of the evidence the learned trial Judge while recording finding on Issue No.7 up held the exchange but observed that exchange could not have been made of a specific number. It was observed "defendant No. 2 has, therefore stepped into the shoes of defendant No.1 and has become a co‑owner in the joint holding in place of defendant No.1". The suit was accordingly decreed vide judgment dated 5‑5‑1990. On appeal the learned Additional District Judge, however, on a totally different ground and consideration proceeded to set aside the said judgment that some of the co‑sharers had filed a suit for pre‑emption qua the same transaction of sale in which the had failed and the said judgment was binding and that the conduct in suppressing the same disentitled the petitioners from relief. Challenging the judgment dated 9‑5‑1991, of the learned Additional District Judge, it is contended by the learned counsel that the petitioners were not party in the pre‑emption suit, the said judgment was not binding qua them. It is further contended that in view of the admitted position of the join Khata, respondent No.2 could only take the position of respondent No.1. The learned counsel for respondent No.2 supports the judgment of the learned Appellate Court but was not in a position to dispute the legal position as to the nature of joint Khata and the respective rights of the co‑owners.

2. The finding of the learned trial Court as to the joint Khata, out of which 2 Kanals of land was exchanged by respondent No. 1 with respondent No.2 is supported by the material on, the record and is not suffering from any misreading or non‑reading of the evidence. It is thus that the rule laid down in Feroz v. Sher and others (PLD 1985 SC 254) would get attracted. It was held that a co -sharer in possession of a portion can transfer that portion subject to adjustment of the rights of the other co‑sharers therein at the time of the partition and that the other co- sharers' rights will be sufficiently safeguarded if they are granted a decree by giving them a declaration that the possession of the transferee in the lands in dispute will be that of the co‑shares subject to adjustment at the time of partition. In Muhammad Siddique v. Muhammad Akram (2000 SCMR 533) it was observed that "one of the joint owners if, deals with the property in the ordinary circumstance would not adversely affect the rights of the other joint co‑owners in the property". The learned trial Judge was absolutely justified in maintaining exchange but subject to the rights of the other co‑sharers. He was right in observing that respondent No.2 had merely stepped into the shoes of respondent No. 1 and become a co -owner in the joint holding in, place or respondent No.

1. This was absolutely correct approach consistent with the law laid down by the superior Courts. The learned Appellate Court, however, while applying the principle of res judicata ignored the fact that the petitioners/plaintiffs herein were not party in the pre‑emption suit and the principle was not strictly applicable to the case in hand. The judgment of the learned Appellate Court is thus not sustainable and the findings rendered by the learned trial Court on issue No.7 are affirmed and restored.

3. This revision petition is accordingly accepted. No order as to costs. H.B.T./A‑318/L Revision accepted.