P L D 1984 Peshawar 71 (PLP)

Date of hearing : 6th April, 1983. Agricultural land measuring 19 kanals 7 marlas comprising of Khasra Nos. 87, 88 and 89 bearing Khata No. 48 situate to village Kot Bhalla, Tehsil Mansehra was sold by Muhammad Naseer Khan in favour of Muhammad Ji alias Aslam (respondent No. 1) vide mutation No. 907 attested on 22‑8‑1973. The sale was pre‑empted by Mir Alam Khan (petitioner) by filing Suit No. 454/1 of 1974. The rival pre‑emptor Sher Zaman (respondent No. 2)' also pre‑empted to aforesaid sale by Suit No. 471/1 of 1974. Both the Suits were consolidated and tried together. Mir Alam khan (petitioner) pre‑empted the sale on the ground of contiguity whereas Sher Zaman (respondent No. 2) claimed co‑sharership in the suit Khata.

2. The learned trial Court decreed the suit of Sher Zaman (respondent No. 2) holding him a co‑sharer in Khata No. 48 with the result that the suit of Mir Alam Khan (petitioner) was dismissed. Feeling aggrieved Mir Alam Khan filed an appeal before the learned District Judge, Mansehra but his appeal was dismissed on 17‑7‑1977. Hence this revision.

3. Sher Zaman (respondent No. 2) claimed to have become a co‑sharer in Khata No. 48 on the basis of mutation No. 828 dated 8‑4‑1971 (copy Exh. C. W. 1/2). On the basis of the said mutation Sher Zaman had purchased an area measuring 4 kanals 2 marlas out of I1 kanals 3 marlas bear ing Khasra No. 106 in Khata No. 48 from Muhammad Naseer Khan. It is evident from the revenue record that Muhammad Naseer Khan is the sole owner of Khata No.

48. The learned counsel for the petitioner con tended that Muhammad Naseer Khan being the sole owner of the Khata in question had effected sale of specified area measuring 4 kanals 2 marlas out of Khasra No. 106 in favour of Sher Zaruan (respondent No. 2) by making a Tatima of the land sold. The Tatima thus made at the spot is also shown in the sale mutation (Exh. C. W. 1/2). From which it is evident that the area sold measuring 4 kanlas 2 marlas is separated and given Kbasra No. 106/1 whereas the remaining portion of the Khasra No. in question measuring 7 kanals 1 marls retained by the owner was given a separate Khasra No. 106/2. This would show that the jointness of the Khata was notionally broken and therefore, Sher Zaman could not claim to be a co‑owner in the kbata in question. It is obvious that Sher Zaman has purchased 4 kanals 2 marlas out of Khasra No. 106 and was given possession of the specified area which was separated from the rest of the area of Khasra No. 106 by making a Tatima at the spot. The portion purchased by him was also given a separate Khasra No. i.e. 106/1 and the remaining area was allotted Khasra No. 106/2 which was retained for himself by the vendor. It is thus clear that the area purchased by Sher Zaman stood separated and he no longer remained a joint‑owner with Muhammad Naseer Khan in the Khata in question. In this view of the matter it cannot be said that by dint of the aforesaid purchase Sher Zaman had become a co‑sharer in the Khata.A Both the learned courts below therefore, were not justified to uphold the superior right of pre‑emption of Sher Zaman on the basis of his co‑sharership in Khata No.

48. In Sher Singh v. Nand Gul (A I R 1947 Lah. 184) it was held that :‑ "The term 'co‑sharer' is not defined anywhere in the Act, but its meaning is quite clear. The word 'co‑sharer' postulates that there are some other persons as well who have a right in the property. The very conception of 'joint property' as used in cl. (b) above presupposes that it also belongs to a person or persons other than the vendor. All the persons who so own a property among themselves are the co‑sharers of each other. Their relationship is mutual. It would be a contradic tion in terms if A is the co‑sharer of B, but, B is not the co‑sharer of A. As laid down in 5 Lah. 2931, the word 'co‑sharer' "signifies persons owning a share or shares in the whole of the property or properties of which another share or other shares were the subject of sale". In other words, the word 'co‑sharer' denotes a person who holds in existing joint proprietary interest, whether absolute or limited, in an undivided property. The land sold in this case was the sole property of the vendor in which the plaintiff had no share whatsoever".

4. The learned counsel for the respondent No. 2 relied on Muhammad Muzaffar Khan v. Muhammad Yousaf Khan (P L D 1959 S C (Pak.) 9) and contended that since respondent No. 2 has purchased a share out of an undivided khata, he shall be deemed to have become a co‑sharer and could therefore successfully claim superior right of pre‑emption as against the petitioner who was merely a contiguous owner. The case relied upon is distinguishable for the reason that the vendee purchased the land from a co‑sharer in an undivided Khata and it was observed that if the vendor was 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 right 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, thus it was found that in these circumstances a vendee of specific plot acquired from a co‑owner in an undivided Khata would become a co‑sharer in the Khata in question. But in the case in hand it is obvious that Muhammad N4seer Khan was not a co‑sharer with others in Khat No. 48 and being the sole owner has sold specific portion of Khasra N3. 106 B which was separated and given a separate number and thus it can be said that the jointness of the Khata was notionally broken and respondent No. 2 did not become a co‑sharer with the vendor in Khata No.

48. The learned counsel for respondent No. 2 also relied on Said Karim Shah v. Taj Muhammad (P L D 1974 S C 383) in which the decision of the Peshawar High Court in Muhammad Yousaf v. Sikandar (P L D 1970 Pesh 160) was approved wherein it was held that .‑ "Thus a holding of land which comprises in it a number of fields bearing different Khasra numbers remains one property and not that it has as many properties as there are Khasra numbers". It was also held that : "The fact of the matter is that although a field or a parcel of land is assigned a particular number, it is not as a result of the division of the property, but is only for convenience of purpose to be achieved in the matter of survey or the crop inspection." The cited case is of no help 'to the learned counsel for the reason that in the case in hand the sold Khasra No. 106 was divided and the area sold in favour of respondent No. 2 was also given a separate number. The property no more remained joint and therefore, respondent No. 2 could not be deemed to be a co‑sharer in the Khata in question. The distinguishing feature being that Muhammad Naseer Khan being the sole owner of the Khata had separated the share sold in favour of respondent No. 2 who was also put in possession thereof and thus it is obvious that respondent No. 2 could no longer claim partition of the joint property.

5. For the aforesaid reasons the findings of both learned courts below holding. respondent No. 2 as `a co‑sharer in the Khata are not maintainable. Mir Alam Khan (petitioner) being a contiguous owner is, therefore, granted the decree prayed for on payment of Rs. 7,053.84. The pre‑emption money, if not already deposited in the trial Court shall be deposited with a period of one month failing which the petitioner's suit shall stand dismissed. The parties to bear their own costs. M. Y. H. Petition accepted.