P L D 1973 Azad J & K 38 (PLP)

(a) Co‑sharer‑--Transfer of land in exclusive possession of vendor co‑sharer--‑Transferee steps into shoes of vendor‑--Title of transferee neither more nor less than that of vendor‑Vendee even though purchasing specific plots and in excess of vendor's fractional share‑--Continues to remain co‑sharer in whole joint holding‑possession of vendee being that of co‑sharer such posses sion not adverse as against other co‑sharers. It is settled law .at least in Punjab as well as Azad Kashmir that the transferee of land in the exclusive possession of the vendor co‑sharer only steps into his shoes and is entitled to no more and no less. The vendee even though he purchased specific fields from the vendors, continued to remain a co- sharer. As a co‑sharer is not restricted under any law from, having possession of the joint property in excess of his share, the entry into possession of the share beyond the fractional share of the vendors by the vendee, was not neces sarily as a trespasser. He had simply stepped into the shoes of the vendors. As a co‑sharer, he could lawfully enter into possession of that part of the property which the vendors were not on account of not being in exclusive possession of the whole property, legally competent to alienate. He could maintain‑, that position till partition. A I R 1930 All. 729 ; 44 P R 18941 P L D 1959 S C (Pak.) 9; A I R 1944 Pesh. 40 ; A I ; R 1924 All. 305 and A I R 1926, Cal. 333 fol. (b) Partition‑Factors to be taken into account in partition proceedings‑Not only quantity of land but quality as well. (c) Adverse possession‑Entry into possession under valid title giving purchaser status of co‑sharer‑Mere possession for over 12 years‑Cannot be treated as adverse against other co‑sharers. The claim of adverse possession is essentially an immoral plea. It is reminiscent of the jungle law of Might being the Right. It seems to have been clothed with legal sanctity. despite its inherent lack of any legality, out of a necessity not the necessity of rewarding an aggressor nor that of punishing a victim for his negligence or submission to superior force but in the higher interests of the State and society , it is: essentially a law borne out of the dictates of expediency. That is why the Courts insist on strict proof about the adverse character of such a claimant's possession and that is also why one of the most difficult things to be proved In a Court of law, is the claim of adverse possession. Therefore, where the appellant had a dual capacity at the time of entering Into possession‑one that of a co‑sharer and the other that of a trespasser, the one which is not inconsistent with the rights and title of other co‑sharers in the said property must be taken into account. Of course, even as a co‑sharer he was entitled to show that he was in adverse possession of the property, but in this case there is no evidence except that he was in possession. As he entered into possession under a valid title which made him a co‑sharer, more possession for over 12 years cannot be treated as being adverse against co‑sharers.