2011K2552 (PLP)

NISAR MUHAMMAD SHAIKH, J.

This High Court Appeal is directed against the order dated 9-3-2010 passed by learned single Judge in J.M. No.4 of 2008 whereby he dismissed the application under section 12(2), C.P.C. filed by the appellants Ghulam Akbar and others for setting aside the Order/Decree dated 28-11-2005 passed in Suit No.1053 of 2004 which was filed by Jahangir Ali the respondent No.1 against Muhammad Sadiq the respondent No.2.

2. Relevant facts of the case as appear from the material available on record, briefly stated, are that the respondent No.1 Jahangir Ali had filed a Suit No.1053 of 2004 in original side of this Court on 16-9-2004 against the respondent No.2 Muhammad Sadiq for Specific Performance of Contract, Possession and Injunction, claiming to have purchased 3-20 acres of land bearing Survey No.216 (admeasuring 7-0 acres), situated in Deh Drig, Tappo Malir, District Malir, Karachi, from respondent No.2 Muhammad Sadiq under a Sale Agreement dated 15-7-2004 and alleging that the respondent No.2 has failed to perform his part of contract as per terms of the Sale Agreement. Such Suit was decreed in terms of compromise vide order dated 28-11-2005 and Decree dated 16-12-2005. The Decree Holder then filed Execution Application No.37 of 2006 which was allowed on 2-6-2006 and subsequently the Nazir also executed such Sale-Deed in favour of Decree Holder before Sub-Registrar concerned on 16-9-2007 in compliance of the orders of this Court. The present appellants then moved an application under Order XXI Rule 58, C.P.C. in the above execution application but the same was not allowed and disposed of vide order dated 14-1-2008. Thereafter, they filed a separate application under section 12(2), C.P.C. on 23-1-2008 for setting aside the Decree passed in Suit No.1053 of 2004 alleging that it was the result of fraud and misrepresentation/concealment of facts. But the learned single Judge after hearing the parties, also dismissed such application vide order dated 9-3-2010 which has been impugned through this appeal.

3. We have heard learned counsel for the parties and perused the relevant record.

4. The only contention of learned counsel for the appellants which is based on the sole ground raised in the present appeal, was that since the appellants are the joint owners/co-sharers to the extent of 1-22 acres in an un-demarcated and un-partitioned/undivided land bearing Survey No.216, admeasuring 7-0 acres, situated in Deh Drig, Tappo Malir, District Malir, Karachi, and the respondents Nos.1 and 2 by fraudulent means and without impleading the appellants as party in their Suit No.1053 of 2004, got it decreed and also executed by consent orders which they obtained by way of fraud, misrepresentation and concealment of facts and therefore, such order is liable to be set aside.

5. We find that the relevant provision attracted to the point in question, is section 4t of the Transfer of Property, 1882twhich reads as under:-- "

44. Transfer by one co-owner

Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the late of transfer, the share or interest so transferred."

6. Accordingly, the share or interest of a co-owner in immovable property can be transferred/sold to another co-owner/co-sharer or even to an stranger and section 44 of the Transfer of Property Act, 1882 recognizes the validity of such transfers, hence there arises no question of alleged fraud or misrepresentation/concealment of facts. On the contrary, the copy of registered Conveyance Deed dated 18-1-1985 filed by appellants with their appeal, itself shows that one of the appellants namely Dad Muhammad had also purchased the undivided share in the same Survey No.216 from one Bhirio son of Khair Muhammad Similarly, the transfer effected between respondents Nos.1 and 2 could not be questioned by the appellants.

7. It was for such reasons, we did not find any substance in this Appeal, which was therefore dismissed vide a short order dated 14-9-2010. M.H./G-2/K Appeal dismissed.