P L D 1994 Supreme Court 354 (PLP)

FAZAL ILAHI KHAN, J: ‑‑Leave to appeal is prayed for against the judgment and decree of Peshawar High Court, dated 3‑2‑1993 in Civil Revision No.143 of 1987. On 31‑1‑1983 respondents instituted Suit No.6/1 against the petitioners for possession of land measuring S kanals 14 marlas bearing Khasra No.800/1 and in the alternative possession by redemption in the Court of Additional Civil Judge, Martian. After the contest by the defendants the suit was dismissed on 14‑2‑1987. The respondents preferred an appeal against the judgment and decree in the Court of District Judge, Martian, who vide his judgment and order dated 13‑6‑1987 maintained the judgment and decree of the trial Court and dismissed the appeal mainly on the ground that the sale deed in respect of the suit land in favour of the petitioners have neither been challenged nor any prayer for its cancellation was made, therefore, no decree could be passed in plaintiffs' favour. Revision No.341 of 1987 against the judgment and decree was filed in the Peshawar High Court, Peshawar. The judgments and decrees of the Courts below were set aside by the learned High Court and plaintiffs/respondents' suit for possession was decreed on the basis of their title in the suit land. Leave to appeal is prayed for against the judgment of the High, Court. After hearing the learned counsel for the petitioners and perusal of the record it is evident that petitioners purchased land measuring 4 kanals 6 marlas from Mst. Mehr Taja widow of Adam Khan out of Khasra Nos:802, 810, 800, 836, 826 and 821 according to Jamabandi for the year 1968‑69 through a registered sale‑deed dated 25‑4‑1974. It is not denied that at the time of execution and registration of the sale‑deed in favour of the respondents partition proceedings amongst co‑sharers, including Mehr Taja from whom petitioners claim the land, were pending before the Revenue Officer and subsequently finalized through Mutation No.946 attested on 13‑8‑1974 in which Khasra No.8p0 in dispute total measured 13 kapals 1 marla was split up into two parts i.e. Khasra No.890/1 measuring 5 kanals 14 marlas and Khasra No.800/2 measuring 7 kanals 7 marlas and it was allotted as under:‑‑ Khasra No. Area Allottee 800/1 5k ‑14m (1) Darvaish Ali 14 shares (2)Sadullah, Ubaidullah, Muhammad Zaman sons and Mst. Zahida Begum; Mst. Abida Begum daughters of Shamroze Khan 7 shares. 800/2 7k-7m Mst. Mehr Taja widow, Abdul Haleem Khan son and Mst. Iltaf Begum d/o Adam Khan predecessor‑in‑interest of Mst. Jauhar Sultana sister ‑ of Darvesh Ali, 24 shares. The petitioners who purchased from a co‑sharer in joint holding do not stand in a better position than that of their vendor and such sale is always subject to adjustment at the time of partition. In the instant case sale in favour of the petitioners took place when the partition proceedings among the co sharers of their joint holdings were pending since long and were already at its final stage, therefore, neither objection of their non‑impleadment as party to the partition proceedings could be entertained nor they could. claim any particular Khasra to be in their sole ownership. We find no infirmity in the judgment of the learned High Court. Leave to appeal is, therefore, refused and the petition is dismissed. AA./B‑235/`S Leave refused