2003 PLP 7 (MLD)

Suit filed by Mst. Mariam Bibi, mother of the, respondent No. 2, for declaration was decreed by the learned trial Court vide judgment and decree dated 7‑7‑1987. Appeal filed by the petitioner also failed on 10‑5‑1994.

2. Brief facts of the case, are that Mst. Mariam Bibi alongwith Abdul Ghafoor (her son), inherited the estate left by Maula Dad Khan (her husband) measuring 144 Kanals to the extent of 1/8 share and 7/8 share respectively. Subsequently, Abdul Ghafoor, sold 6 Kanals and 12 Marlas of the aforesaid land in favour of the predecessor‑in‑interest of the respondents Nos.3 to 7, who further sold the same to the petitioner. Mst. Mariam Bibi on 1‑11‑1983, brought a suit claiming that she had 1/8 share in the specific Khasra numbers of the land sold to the defendants, therefore, said sale is illegal and void. Suit as mentioned above, was decreed. Appeal of the petitioner was also dismissed.

3. Learned counsel for the petitioner contends that Abdul Ghafoor was the owner to the extent of 12 Kanals and 6 Marlas of land and thus, having sold a part of his share in the property i.e. 6 Kanals and 12 Marlas, would not encroach upon the rights of Mariam Bibi. Even otherwise, during the pendency of the appeal, Mst. Mariam Bibi had died and Abdul Ghafoor is only the legal heir of the deceased plaintiff and, therefore, as Abdul Ghafoor had admittedly made the sale in favour of the respondents Nos. 3 to 7 and even conceding such sale being made by an unauthorized person, but subsequently, he had acquired interest in the suit property on account of death of Mst. Mariam Bibi, therefore, the present decree cannot be sustained.

4. Learned counsel for the respondents contends that the matter should not have been decided on the basis of section 43 of Transfer of Property Act, rather on the basis of rights, which the plaintiff Mst. Mariam Bibi had, even though such rights have been inherited by the said respondent.

5. I have heard the learned counsel for the parties and find that though specific Khasra number had been sold in favour of the present petitioner, but Abdul Ghafoor had the land much in excess to 6 Kanals and 12 Marlas, which he could validly transfer. Possession of specific Khasra number, which was possessed by him, could also be delivered to the petitioner, but this was subject to the final and ultimate partition of the joint property, because Mst. Mariam Bibi had 1/8 share in every inch of the joint holding with Abdul Ghafoor. In any case, the present matter is covered by section 43 of the Transfer of Property Act, as now Mst.4 Mariam Bibi has been succeeded by Abdul Ghafoor alone, who admittedly had made sale in favour of the respondents Nos.3 to 7 who further sold the property to the present petitioner, thus even if, the sale at the relevant time was by an unauthorized person, but subsequently having acquired title of the property, the respondent could not maintain an action as heir of Mst. Mariam Bibi. In the light of above, this revision petition is accepted. The judgments and decrees of the two Courts below are set aside, with the result that suit filed by Mst. Mariam Bibi, succeeded by respondent No.2, stands dismissed. H.B.T./R‑130/L Petition accepted.