P L D 1955 Peshawar 26 (PLP)

MUHAMMAD SHAFI, J.

Paris village in the Hazara District has an extensive shamilat, having an area of about 20500 kanals. This shamilat admittedly is joint and has not been partitioned. Khasra No. 1470 is a part of this shamilat, and its area is 66 kanals 12 marlas. Abdul Qadir Shah, along with eleven others, brought a suit against Sayed Jamal Shah, his son Sayed Qaisar Shah, and 18 others, for a declaration that they were in exclusive possession of this Khasra number in their capacity as co-sharers in the shamilat, and that defendant No. 1, viz., Sayed Jamal Shah, had in connivance with the patwari got himself entered as in possession in the last crop, and had also mortgaged it in favour of his son defendant No. 2, namely, Qaisar Shah. They prayed that a decree granted in their favour to the effect that defendants ,Nos. 1-2 were not in possession of the land in suit, and that the mortgage by the former in favour of the latter was ineffective so far as the plaintiffs' rights were concerned. The suit was contested by defendants Nos. 1 and 2, who raised several objections, and as a consequence thereof the following issues were framed in the case :- (1) Whether plaintiffs and defendants Nos. 3-20 are in possession of the suit land as hissadar owners and that the entries on jamabandi of 1946-47 are wrong and contrary to the facts on the spot. (2) Whether all the owners of the shamilat-i-deh are necessary parties. (3) Whether the form of the suit is wrong. (4) Whether the suit is within time. (5) In case issue No. 1 is proved what is the effect of the mortgage mutation in dispute in favour of defendant No. 2 on the rights of plaintiffs and defendants Nos. 3 to 20. (6) Whether the plaintiffs have and' with what effect alienated some of their rights in the shamilat-i-deh. (7) Relief. According to the evidence produced on the record, there are certain facts which can safely be held to be undisputed. They are as follows :- There were three Khasra numbers in. existence prior to the settlement of 1946-47, viz., 1418, measuring 37 kanals, 1476. measuring 66 kanals 19 marlas and 1419, measuring 10 kanals 5 marlas. Khasra Nos. 1418 and 1476 were entered in the revenue papers as Dhaka Chiragh, while Khasra No. 1419 was entered as a thoroughfare. In the last settle?ment Khasra No. 1418 was split up into five Khasra numbers, namely, 1478, 1479, 1480, 1481 and 1470; Khasra No. 1476 was split up into two Khasra Nos. 1470 and 1469. There is no evidence on the record to show whether No. 1419 remained intact or some other Khasra number was given to it, but it is clear that so far as the Khasra number in dispute is concerned it contains a part of this Khasra number as well. According to the revenue-papers this Khasra No. 1470 is made up of a part of Khasra No. 1418, a part of Khasra No. 1476 and a part of Khasra No. 1419, and the area of this Khasra number now is 66 kanals 12 marlas. In the settlement of 1946-47, it is mentioned as Dhaka Rakh. It was on the 17th of October, 1942, that police made a report that there was a dispute between Sayed Jamal Shah on one side and Noor Ahmad Shah, Ghulam Rasool Shah, Ghulam Qadir Shah and:Shah Hussain Shah, some of whom are the plaintiffs in this case, on the other over 8 kanals 10 marlas of land, known as Larkidar. No Khasra number of that land was given in the complaint. This complaint was heard by Mr. O. C. B: St. John, Assistant Commissioner, Mansehra, under the provisions of section 145 Cr. P. C., who by his order dated 28th October, 1942, directed that Sayed Noor Ahmad Shah, Ghulam Rasool Shah. Ghulam Qadir Shah and Shah Hussain Shah should be placed in physical possession of the land in question, and their possession should not be disturbed by Sayed Jamal Shah until he had acquired legal authority to do from a competent Civil or a Revenue Court. It was further ordered that the patwari of the village through the Settlement Tahsildar in consultation with the Sub-Inspector Police, Bala Kot, shall place Sayed Noor Ahmad Shah, etc., in possession of the property. There was a revision petition filed against this order in the Court of Session, which with its recommendation that the case should be remanded for trial de novo was forwarded to this Court. Sir James Almond, who was then the Judicial Commissioner, by his order dated 3rd February, 1943, rejected the Sessions judge's recommendation and maintained the order of the Assistant Commissioner, dismissing the revision petition of Sayed Jamal Shah In the meanwhile, on 11th December, 1942, Gohar Rahman, patwari, went to the spot, and delivered the possession of Khasra Nos. 1476 and 1418 to Noor Ahmad Shah and others. In this report on the back of the order of the Assistant Commissioner, he has not specifically written Khasra No. 1418, but has written Khasra No. 1476 twice, which is an obvious error. But at the same time I have not been able to understand how could Gohar Rahman give possession of these two Khasra numbers to Noor Ahmad Shah, etc., when the dispute between the parties was only with regard to 8 kanals 10 marlas of land. In the complaint it was specifically mentioned that barley had been cultivated in this area, over which the parties had a dispute as to who had actually cultivated it. From this it was clear that the land, the possession of which was to be given to Noor Ahmad Shah, etc., measured on 8 kanals 10 marlas, and had barley cultivated therein. The patwari, however, in spite of that, went to the spot and actually delivered the possession of the two Khasra numbers to those persons. As a result of this action of the patwari, Sayed Jamal Shah, on 11th February, 1943, instituted a suit in the Court of Sub-Judge 2nd Class, Mansehra, but he withdrew it with permission to bring a fresh suit on 3rd June, 1943, because, as he put it, there were some technical errors in the plaint. Nothing happened after that except that in the jamabandi of 1946-47 Sayed Jamal Shah has been noted as in possession of the newly formed Khasra No. 1470. By mutation No. 225 entered on 25th May, 1949, Sayed Jamal Shah mortgaged this land along with some other land in favour of his son in lieu of Rs.

400. This mutation was objected to and was originally rejected, but then it was attested and corrections in the revenue papers were duly made in accordance therewith. There were some Khasra girdawaris produced on the record, but both the Courts below have ignored them, and in my opinion very rightly, because no reliance can be placed upon them, .as they are conflicting, inconsistent and inco?herent. The learned trial judge on the facts narrated above came to the conclusion that a presumption of correctness was attached to the jamabandi of 1946-47, and as Saved Jainal Shah was entered in possession of the Khasra number in dispute, therefore, he had a right to alienate or mortgage it in favour of his son, and the plaintiffs consequently had no cause of action to bring this suit. He dismissed the plaintiff's suit, but in view of the technical nature of the case, he left the parties to bear their own costs. There was an appeal against this decree, which was accepted by the learned District Judge, Hazara, who held that in proceedings under section 145 Cr. P. C. the possession of the old Khasra numbers was duly delivered to the plaintiffs, who continued to remain in possession thereof up to the present time, because there was no evidence that Sayed Jamal Shah dispossessed them by any legal process. The suit for possession which he had brought having been withdrawn by him on 3rd June, 1943, the plaintiffs had a clear cause of action, and were entitled to the decree claimed. He with the trial Court left the parties to bear their own costs throughout. Sayed Jamal Shah has come up in revision to this Court. The first question which has to be decided is whether Sayed Jamal Shah is in possession of the property in dispute or the plaintiff-respondents are in possession thereof. It is true that in 1942, the plaintiff-respondents were placed in possession of the property in dispute by Gohar Rahman patwari. Sayed Jamal Shah subsequently instituted a suit for retaking the possession, but than he withdrew the suit with permission to bring a fresh suit, which he never did bring. His explanation is that he did not bring the suit, because he managed to get the possession of the property. This explanation of Sayed' Jamal Shah has got considerable force in it; because it does not appeal to reason that having fought the case with the plaintiff respondents and instituted a suit and then withdrawn it with permission to bring a fresh suit, he would not bring the suit, unless of course if it was for the reason that he did not feel the necessity to bring one, as he had somehow or other obtained the possession of the property. This statement of Sayed Jamal Shah is corroborated by the fact that he is entered as in possession of the property in the jamabandi of 1946-47, to which a presumption of correctness is attached, under the Punjab Land Revenue Act. The plaintiff-respondents have not placed upon the record any evidence: worth the name to prove that the entry which was made in the jamabandi of 1946-47 was wrong, or that they were in actual physical possession of Khasra No. 1470. The next question which has been argued before me by the learned counsel for the respondents is that even if Sayed Jamal Shah be held to be in exclusive possession of the property in dispute, still he could not in law mortgage it in favour of his son, Sayed Qaisar Shah. He contends that if one of the several co-sharers in a certain undivided property transfers by way of sale or mortgage the land held by him in severalty, than the other co-sharers are entitled to have the alienation set aside, and take joint possession with the transferor. I am afraid, it is not possible for me to accept the above proposition of law as correct. In my view, if a co?sharer is in possession of any portion of the joint property not exceeding his own share, he can transfer that portion but the other co-sharers at the time of the partition. If the shamilat is partitioned and the property which has been mortgaged by one co-sharer in favour of a stranger is allotted to some other co-sharer, then that co-sharer would take the property free of mortgage, and the mortgage can take only that property which falls to the share of the mortgagor. The learned counsel for the plaintiff-respondents quoted two authorities in support of his argument, viz.,

1. A I R 1939 All. p. 504, and A I R 1935 All. p.

771. So far as the first authority is concerned, His Lordship (Mr. Justice Muhammad Ismail) quoted two authorities therein, i.e., (1) A I R 1935 All. p. 771, wherein it was held by Niamatullah J. that one of several co-sharers in an undivided mahal cannot transfer to stranger lands held by him in severalty and if he does so, the other co-sharers are entitled to have the alienation set aside, to eject the transferees and to take joint possession with the transferors, and (2) A I R 1936 All. p. 456, wherein Bajpai J. reviewing a number of authorities on the subject observed as follows :- "A co-sharer in an undivided property cannot alienate any defined portion of such property even though he might have been in exclusive possession of the same by an agreement amongst the various co-sharers. It follows that if such an alienation is made the alienation is subject to the right of the other co-sharers to enforce a partition. If the mortgage is followed by a partition and the mortgaged properties are allotted to the other co-sharers, they take those properties, in the absence of fraud, free from the mortgage, and the mortgage can proceed only against the properties allotted to the mortgagor in substitution of his undivided share." Mr. Justice Muhammad Ismail, however, observed, that both these authorities did not apply to the facts of the case before him, because the transferee was in possession of the property for the last 24 years without any objection from the other co-sharers. A I R 1935 All. p. 771, no doubt, favours the view advanced by the learned councel for the respondents, but then it is opposed to the view expressed in A I R 1936 All. p.

456. The view expressed in the latter authority is in conformity with section 44 of the Transfer of Property Act as well as with A 1 R 1932 P C p. 235, and A I R 1940 Lah. p.

473. The view expressed in the three authorities mentioned above is, in my opinion, very sound and should be accepted. I consequently hold that a person, who is in exclusive possession of a certain portion of a joint property, can alienate that property, but then the alienation will be subject to any adjustment which takes place at the time of the partition of .4 the joint property, and the person, to whom that joint property is allotted, shall take that property free of such alienation. In this view of the case I must accept this revision petition, set aside the judgment and decree of the learned lower Appellate Court, and grant plaintiffs a declaratory decree to the effect that the possession of Qaisar Shah on the land in dispute will be that of a co-sharer, subject to adjustment at the time of partition. Since the case involves a difficult question of law, I, like the two Courts below, leave the parties to bear their own costs. Orders announced. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.