2011 SCMR 1039 (PLP)

AMIR HANI MUSLIM, J.

Through these appeals, the appellant has impugned the judgment of the learned Lahore High Court passed in civil revision whereby while dismissing the revision, it has maintained the judgment passed by the 1st Appellate Court, the Additional District Judge, Nankana Sahib.

2. The facts as they appear from the record are that on 24-10-1996 the appellant had filed a suit for declaration and injunction against the respondents Nos.1 and

2. It was pleaded in the plaint that the appellant is the co-sharer of the total immovable property measuring 6882 kanals, which is jointly owned by the appellant, respondents Nos.2 and 8 others who are not party to the proceedings. Out of the aforesaid property, the respondent No.2 Mst. Rashida Noor, a co-sharer, had 109 kanals in her possession which on 2-5-1991 was sold out by her on 30-5-1991 and registered sale deed was executed by her in favour of the respondent No.1. The appellant further pleaded in the plaint that she was minor at the time when the respondent No.2 sold the property to the respondent No.1 and, therefore, the suit was filed on 24-10-1996 after she attained majority.

3. The respondent No.2 did not contest the suit and matter proceeded ex parte against her. However, the respondent No.1 contested the matter and after evidence of the. parties the trial Court decreed the suit against the respondents.

4. The respondent No.1 filed appeal against the decree of the trial Court which decree was reversed by the first appellate Court and the suit of the appellant was dismissed. The appellant filed civil revision before the learned Lahore High Court, which by its impugned judgment dismissed the civil revision while the judgment of the first appellate Court was maintained.

5. It is contended by the learned counsel for the appellant that the learned High Court was in error over looking the issue that the first appeal was not filed by the competent person. His next contention was that a co-sharer cannot alienate any portion of the joint property nor can change the nature of the property in her possession unless such property was partitioned by metes and bounds. In support of his first contention about the competence of the appeal, he has relied upon the cases of Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd. reported in (PLD 1971 SC 550), Messrs Muhammad Siddiq v. The Australsia Bank Ltd. (PLD 1966 SC 684) and Muhammad Khan v. Mst. Rasul Bibi (PLD 2003 SC 676). In support of his second contention, the learned counsel for the appellant has relied on the cases reported as Ali Gohar Khan v. Sher Ayaz and others (1989' SCMR 130), Fazal and others v. Ghulam Muhammad (2003 SCMR 999) and Akhtar Nawaz Khan v. Danial Khan (1994 Law Notes 1148).

6. As against this, the learned counsel representing the respondent No.1 has contended that the appeal was competently filed and no objection as to the competence of the person filing appeal was raised by the counsel representing the appellant before the first appellate Court. According to him, the appeal was filed by the Director of the respondent No.1, who was authorized in this behalf. His next contention was that a co-sharer, in law, can alienate portion of the joint property, in his possession, through sale if such portion of the property does not exceed his share in it. In support of his submissions, he has relied on the cases reported as Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 SC 9), Feroz v. Slier (PLD 1985 SC 284), Shah Hussain v. Abdul Qayum (1984 SCMR 427), Muhammad Sharif and others v. Ghulam Hussain (1995 SCMR 514), Jan Muhammad v. Abdul Rashid (1993 SCMR 1463) and Mst. Resham Bibi v. Lal Din (1999 SCMR 2325).

7. We have heard the learned counsel for the parties and have perused the record. The property, devolves upon 10 co-owners, out of which the appellant has objected to the sale of the portion of the joint property, which admittedly was in possession of the respondent No.2 as co-sharer. It is also an admitted fact that the portion of the joint property sold by the respondent No.2 to the respondent No.1 did not exceed the share of respondent No.2 in the joint ownership. The appellant's is witness who appeared in the trial Court as attorney on behalf of the appellant was marginal witness of the sale deed. Except the appellant, who has filed the suit against the respondents, no other co-sharer has either objected to the sale transaction nor were joined as party. The appellant herself claims that she on the date of sale was a minor and on attaining majority had filed the suit against the respondents.

8. The issue that the appeal was not competently filed before the first appellate Court has been answered by the learned High Court in the impugned judgment. The reasons which the High Court has given in disbelieving the contention of the appellant that appeal was not competently filed was just. If a party fails to object to the competence of filing of an appeal by a person, who claims to be the Director, the party objecting to must reduce such objection in writing for consideration before the Court. In the case in hand, admittedly no written objection to the competence of the person was filed instead an affidavit of the counsel representing appellant before the appellate Court has been tiled before the learned High Court stating that the objection of the nature was raised by him before the appellate Court but it was not adverted to by the appellate Court. In the first place, appeal is the continuation of the original proceedings and no signature of a party appealing against is required on the memo of appeal. The counsel representing the appellant before the trial Court can file appeal under his signatures. Moreover, if a person signing the memo of appeal or any other document, claims that he is the Director of the company, then it is obligatory on the part of the other side, which challenges his statement and or authority to file written objection or affidavit stating such objection so that the party against whom such objection is raised has the opportunity to reply to such objection. At revisional stage, objection of the nature, which otherwise was curable, cannot be allowed to be taken and the learned High Court was justified in repelling such objection. The judgments cited by the learned counsel for the appellant on this issue are distinguishable on facts and have no bearing on the case in hand.

9. The issue in regard to sale by a co-sharer of the portion of the joint property in her possession which portion does not exceed her share in the joint property. Sale of such portion cannot be declared invalid on the ground that the vendee after purchase of such portion has changed the status from one category to another. This proposition of law has been completely answered by the judgment of this Court in the case of Muhammad Muzaffar Khan v. Muhammad Yusuf Khan reported as (PLD 1959 SC 9), wherein it was held that the vendee of co-sharer who owns an undivided Khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers and the vendee's right would be subject to adjustment on partition. In the case in hand, it is claimed that the portion of land in possession of the respondent No.2 was agriculture land. On sale, the respondent No.1 has constructed industry on it and converted its status from agriculture to industrial purpose and therefore, the joint property cannot be partitioned on account of such change of status of portion of the land. The nature of change of land by the respondent No.1 from agriculture to industrial purpose does not debar the respondent No.1 from enjoying the use of land in any manner as owner. It is not in dispute that the respondent No. 2 was a co-sharer and was in possession of the area of 109 kanals of land, which area was not in excess of her share in the entire joint ownership. The present case is fully covered by the judgments of this court Muhammad Muzaffar Khan v. Muhammad Yusuf Khan v. Muhammad Yusuf Khan (PLD 1959 SC 9), Feroz v. Sher (PLD 1985 SC 284), Shah Hussain v. Abdul Qayum (1984 SCMR 427), Muhammad Sharif and others v. Ghulam Hussain (1995 SCMR 114), Jan Muhammad v. Abdul Rashid (1993 SCMR 1463) and Mst. Resham Bibi v. Lal Din (1999 SCMR 2325). For the aforesaid reasons, these appeals are dismissed with no orders as to costs. S.A.K./S-20/SC Appeals dismissed.