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Civil Petition--‑ for Leave to Appeal No. 522/11 of 1983, decided on 7th February, 1984.

(On appeal from the judgment and order of Lahore High Court, dated 8‑5‑1983 passed in Civil Revision No 166 of 1982)

---Art. 185(3)‑‑Dispute over land in shamilat Deh in joint possession of petitioners‑‑Concurrent findings of Court below on basis of oral as well as documentary evidence of parties to effect that suit land was still in joint possession of proprietors of estate and was lying as Ghair Mumkin Khundar‑‑Such findings found to be, unexceptionable‑‑leave to appeal refused.

Mr. M. Sirajul Haq, Advocate Supreme Court and M. Afzal Siddiqui, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 7th February, 1984.

.‑ This petition is directed against the judgment and order of the Lahore High Court, Rawalpindi Bench, dated 8‑5‑‑1983 passed in Civil Revision No. 166 of 1982.

2. In this petition the subject‑matter of the dispute relates to land measuring 46 Kanals in village Malook, Tehsil Chakwal, D trict Jhelum. Petitioner No.2 was co‑sharer in possession of the land in question which was recorded as 'Banjar' and according to him, was brought under cultivation with great expense and efforts. He sold the land in question to petitioner No.1 Muhammad Khan vide Mutation No. 21'21 dated 27‑3‑1971.

3. On 24‑3‑1976 Baz Khan respondents Nos.1 and 5 others filed a suit for declaration challenging the legality of the aforesaid sale in favour of petitioner No. 1 on the ground that the land in question was Shamilat Deh; that petitioner No. 2 and Baz Khan etc. were owners in the Shamilat; that petitioner No.2 in collusion with the Revenue officials got his possession as co‑sharer recorded although the land was Shamilat Deh and Ghair Mumkin Khandar and in fact, was in possession of village proprietary body. 'The suit of the respondents was decreed by the learned Civil Judge on 19‑12‑1978. The petitioners filed an appeal which was dismissed by the learned District Judge vide judgment and decree, dated 2‑3‑1982. Thereafter, civil revision was filed in the High Court which was dismissed vide the impugned order in limine.

4.The learned counsel contended that the transfer and mutation by petitioner No.2 in favour of petitioner No.l remained in the field for five years without any objection or challenge by the respondents, and if the mutation was collusive or fictitious the same should have been challenged before the revenue authorities. Therefore, the finding on issue No.l is conjectural and not based on any evidence or material on record; that the mere fact that the transaction of sale was between father and son and for Rs. 1,000 only would by itself not render the transaction as illegal; that petitioner No.2 was admittedly a co‑sharer and even if it be assumed that he was in possession of land in excess of his share, it will not make any difference because a co‑sharer is entitled to remain in possession even in area in excess of his share until the partition takes place by metes and bounds.

5. On going through the evidence we find that the learned Courts below have recorded concurrent finding on the basis of oral as well as documentary evidence of the parties to the effect that the suit land was still in joint possession of the proprietors of the estate and was lying as Ghair Mumkin Khandar. The other finding has also been recorded to the effect that mutation of sale in respect of the suit land by petitioner No.2 in favour of petitioner No.l was illegal being a fictitious and sham transaction. It is an admitted fact that petitioner No.l is a son of petitioner No.2 who sold the land which was a joint property of the proprietary body of the estate being part of the Shamilat Dell, to his son for a paltry amount of Rs. 1,000. This is nothing but a vain attempt on the part of petitioner No.2 to deprive the other co‑sharers of the suit land and to appropriate the same to his exclusive benefit We, therefore, find that no exception can be taken to the finding of the Courts below. The petition is, accordingly, dismissed.

S . Q . Petition dismissed.

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