Law:

Section: 115

ORDER This is an application to revise a decision of the lower appellate Court dated 6th June 1979, by which the Court maintained the judgment and decree of a Civil Judge, Peshawar dated the 20th January 1976. The application arises under the following circumstances;- Faiz Gul was the owner of 15 kanlas 16 marlas of land compromised in Khasra Nos. 105, 106, 107 and 108, situated in the area of Buniadi, a village in Peshawar Tehsil. On his death, he was succeeded by a widow Mst. Dawai, four sons, namely, Wahid Gul, Shahzad Gul, and Sher Gul, and two daughters Mst. Dohara and Mst. Khalai. They inherited his pro perty in accordance with Shariat. Sometime after, Mst. Khalai also died leaving behind two daughters, namely Mst. Basri and Mst. Kalai. By a registered sale-deed Shabzad Gul, Gul Sher, Mst. Dobara and Mst. Dawai, sold their share measuring 11 kanal:, 12 marlas to Fazale Noor and Fazal Gul plaintiffs/applicants and their brother Muhammad Jamil. Then Wahid Gul, by a registered sale deed, sold 5 kanals 12 marlas, to the plaintiffs which also included the share of his sister Mst. Khalai. On the basis of this sale, the plaintiffs instituted a suit in the Court of a Civil Judge Peshawar, for possession of 5 kanals 12, marlas of land so purchased by them. The defendant to the suit, who is the respondent before me, opposed the claim on the grounds giving rise to as many as five issues, which need not be reproduced here. The trial Judge, after recording all the evidence which the parties wished to adduce, came to the conclusion that Wahid Gul was the owner of 2 kanlas 15 marlas of land only which he was competent to sell and consequently, by his judgment dated 20th January 1976, granted plaintiffs a decree for possession of the same area, i e. 2 kanals, 15 marlas leaving the parties to bear their own costs. An appeal was filed by the plaintiffs assailing the judgment and decree of the trial Court. The appeal, however, failed and was dismissed by an Additional District Judge, Peshawar, on the 6th of June 1979. The order of dismissal so passed is now being complained of before me. The learned counsel for the applicants urged that in a private partition, the share of…