1998 PLP 593 (SCMR)

Date of hearing: 19th April, 1995. MUHAMMAD BASHIR JEHANGIRI, J.‑‑‑This petition is from the judgment of the Peshawar High Court, Peshawar, dated 8‑12‑1994 dismissing tire revision by the petitioner herein arising out of a suit for pre‑emption of certain land. 2, By virtue of a registered sale‑deed dated 2‑9‑1981 land measuring 2 Kanals and 7 Marlas out of Khasras Nos.930, 923, 911, 912, 913, 914, 924, 916, 915 and 925 situate in village Narai, Tehsil and District, Mardan, was purchased by Amir Shah petitioner from one Mst. Gul Andama allegedly for Rs.25,OQ

0. Ziarat Gul respondent filed a suit for possession by pre‑emption of land measuring; ! i'anal and 19‑1/2 Marlas out of the disputed Khasra numbers on the ground hat his superior right of pre‑emption on the basis of co- sharership, contiguity and participation in the immunities was only confined to the disputed Khasra Nos.951, 952, 921, 953 and 955 and did not extend to the other Khasra numbers,

3. The petitioner contested the suit, inter alia, on the grounds that the suit was bad for partial pre‑emption; that he was also co‑sharer in a portion of the disputed land; and that as the land comprised in his tenancy, lie had a superior right of pre‑emption thereon under MLR‑115.

4. The suit was decreed firstly on 13‑2‑1983 but on appeal it was remanded by the learned Additional District Judge on 25‑2‑1984 to the learned trial Court to decide also the issue namely," whether the vendee‑defendant is a tenant over the suit land prior to its purchase, if so, its effect'?" The suit was again decreed by the learned trial Court vide its order dated 26‑4‑1992 on payment of Rs.5,688 as pre‑emption money. On appeal, the decree of the learned trial Court was affirmed both as regards the claim of superior right of pre‑emption as well as the plea of partial pre‑emption.

5. Feeling dissatisfied with the judgments and decrees of the two Courts below, the petitioner challenged them in revision which was admitted to regular hearing by a learned Judge of the High Court only to determine the plea as to whether the petitioner‑vendee was a cultivating tenant of the land at the time of sale and had, therefore, first right of pre‑emption under MLR‑115 as enforced at the relevant time. 6.Mr. Muhammad Zahoor Qureshi Azad, learned counsel for the petitioner, had pleaded for the first time before the High Court that the pre‑emptor was not a co‑sharer in the disputed khata Nos.336 and 339 on the ground that the sale in his favour had been made only in the column of cultivation. This plea. did not find favour with the learned Single Judge and resultantly' he dismissed the revision. In support of this petition the learned counsel for the petitioner confined his argument only to that part of the judgment of the learned Judge in Chamber wherein the plea of the petitioner that the sale in his favour had been made only in the column of cultivation which did not confer on him the status of a co- sharer. It was submitted that the finding of the High Court on the point was ill- founded and suffered from misreading of evidence on the material particular.

8. This ground of attack was for the first time raised before the High Court without having been taken up either in the written statement or in the evidence of Patwari or in the memorandum of appeal. The evidence of Patwari, it appears, on the point that the respondent was a co‑sharer in the disputed land had gone unchallenged because cross‑examination of the Patwari was not directed on this point. It is a settled principle of law that a party cannot be allowed to succeed on a case not set up by him. This plea is, therefore, violative of the rule of "Secundum Allegata et‑Probata i.e., a party can only succeed according to what was alleged and proved.

9. The only point that survived for determination before us, therefore, is as to whether the sale out of a particular Khasra number finding its way in the column of cultivation confers a status of co‑sharership on the vendee. It does not require much discussion on the point because this Court in the precedent case of Muhammad Muzaffar Khan v. Muhammad Yusaf Khan (PLD 1959 SC (Pak.) 9) has already held that the vendee of a 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 is 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. It was further held that 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.

10. Under the Rules contained in the Land Record Manual whenever a co- sharer in a joint khata sells a particular Khasra number or a portion in the particular Khasra number, the sale is entered only in the column of cultivation containing the names of vendor and vendee and the ownership column remains unchanged.

11. It is difficult to see in these circumstances why the vendee of specific plots acquired from a co‑owner, in an undivided khata, does not become a co sharer in that khata. We have, therefore, no hesitation to hold that the respondent having purchased portions of Khasra numbers in the column of cultivation from his co‑owner/vendor became a co‑owner in those Khatas and on that basis he could validly lay claim to be a co‑sharer and enforce his right of pre‑emption on that score.

12. In the circumstances, there is not merit in this petition and, therefore, leave to appeal is not granted to the petitioner. The petition is accordingly I dismissed. A.A./A‑1318/S Leave refused.