P L D 2018 High Court (AJ&K) 22 (PLP)

MUHAMMAD SHERAZ KIANI, J.

The captioned appeal has been directed against the judgment and decree passed by the learned District Judge, Bagh, on 31.02.2015 whereby the appeal of the respondents, herein, was accepted while remanding the case to the trial Court.

2. Synthesized facts of case stated are that the plaintiffs/ respondents, herein, filed a suit for declaration and revocation of sale-deed dated 29.06.2007 and mutation No.371 attested on 04.01.2008 pertaining to survey Nos.1052, 1060, 1062, 1063, 1272, 1061, 1070, 1061/1 total measuring 49 Kanal 2 Marlas situated in Mozia Kafal Ghar Tehsil Hari Ghail District, Bagh. It is stated that the land measuring 9 Kanal 12 Marlas of survey No.1070 is in possession of the plaintiffs/respondents since their forefathers through private partition while defendant No.2 in clandestine manner alienated land measuring 6 Kanal 15 Marlas to defendant through sale-deed dated 29.06.2007 on the basis of fabricated "Tateema plan". It is averred that on the basis of the sale-deed, a mutation No.371 has also been attested on 04.01.2008, which is against the rights of the defendants/appellants, herein, therefore, the same may be cancelled. On filing of the suit, the defendants were summoned who appeared before the Court and filed an application for rejection of the suit under Order VII, rule 11 of Civil Procedure Code. The learned trial Court after hearing the parties rejected the suit under the said rule vide judgment and decree dated 31.10.2016. Feeling dissatisfied from the said judgment and decree, the plaintiffs/respondents, herein, filed an appeal before the learned District Judge, Bagh, which was accepted and the case was remanded to the learned trial Court for deciding the matter on merit after recording evidence vide judgment and decree dated 09.02.2016, hence, this appeal.

3. Raja Ishtiaq Ahmed Khan, the learned counsel for the appellants, more or less, reiterated the grounds of appeal and argued that as the suit land was in possession of the vendor and he was quite competent and entitled to sell and handover the possession of the suit land to the vendee and there was no illegality in the execution of sale-deed dated 29.06.2007, because the rights of the plaintiffs/respondents have not been affected due to execution of sale-deed, therefore, the trial Court was quite competent to reject the plaint under Order VII, rule 11 of Civil Procedure Code. The learned counsel craved that the civil Court has no jurisdiction to cancel the "Tateema plan" attached with the sale-deed and thus the remand order of the learned District Judge, Bagh, dated 09.02.2016 is liable to be set-aside.

4. Sheikh Muhammad Aslam, the learned counsel for respondents Nos.1 and 2 while controverting the arguments of the learned counsel for the appellants, vehemently contended that as the plaintiffs/respondents, herein, are in possession the suit land and the defendant/vendor was not competent to alienate that land which was not in his possession whereas these questions can be determined after recording evidence, therefore, the impugned judgment and decree has been passed in a legal fashion and no illegality has been committed by the learned Court below.

5. I have heard the learned counsel for the parties and gone through the record of the case carefully.

6. The plaintiffs, Muhammad Mahroof and Muhammad Yousif filed a suit under Section 42 of Specific Relief Act for declaration with regard to sale-deed dated 29.06.2007, which was executed by defendant/vendor allegedly without possession of the suit land and it is contended that the suit land comprising survey No.1070 measuring 9 Kanal 12 Marlas is in possession of the plaintiffs/respondents, herein, and so the land in question has been transferred to the vendee without possession, thus, the sale-deed dated 29.06.2007 is liable to be cancelled to the extent of specific survey No.1070 measuring 6 Kanal 15 Marlas. In such matters, the following two principles have been laid down by the Superior Courts of Azad Jammu and Kashmir in different cases:- i) If a co-sharer is in possession of a particular survey number he can alienate that specific survey number validly provided it does not exeed from his overall share in the Khewat; ii) If a co-sharer is not in possession of a particular survey number and he wants to transfer by-way of sale, gift etc. to any other person. He can transfer from that particular survey number his share of that survey number not the land of whole survey number.

7. Keeping in view the above principles of law, in the present case, the plaintiffs came in trial Court with the version that defendant/vendor was not in possession of the Survey No.1070, thus, he was not entitled to transfer the land measuring 6 Kanal 15 Marlas. It is not version of the defendants/appellants, herein, that the share of vendor in survey No.1070 was 6 Kanal 15 Marlas. So, whether the defendant/vendor was in possession of suit land (i.e. 6 Kanal 15 Marlas) is question of fact, which can be determined after recording evidence of the parties. In such state of affairs, the learned trial Court was not competent to reject the plaint under Order VII, rule 11 of Civil Procedure Code. If it is found that the vendor was not in possession of the whole suit land, then the questioned sale-deed could be set-aside to the extent of the land beyond his share in that particular survey number, it is not a case for cancellation of "Tateema plan" only, it is for setting-aside the sale-deed which comes well within the jurisdiction of the civil Court. If the vendor had sold the land without specification of a single survey number, then there might have been no illegality but to transfer that portion of land which is or may be in possession of other co-sharer is not justified in law, hence, the learned District Judge, Bagh, has rightly remanded the case to trial Court for resolving the matter on merits after recording evidence. No illegality and perversity appears to have been committed by the learned District Judge, Bagh, vide impugned judgment and decree dated 09.02.2016, which is upheld.

8. The outcome of the above discussion is that finding no force in the instant appeal, the same is hereby dismissed with no order as to costs. AG/7/HC(AJ&K) Appeal dismisse