1989 PLP 200 (MLD)

(4) Issue No. 3 failing, what was the market value of the suit property at the time of sale? O.P.P. (5) Relief."

2. The learned trial Court after hearing the arguments proceeded to decree the suit vide judgment and decree dated 19-2-1974. The appellant assailed this order through an appeal in the Court of District Judge, Multan, who entrusted the same for decision to the Additional District Judge. The appeal was ultimately dismissed vide judgment and decree dated 4-11-1975. The appellant, still not feeling satisfied with the result of his efforts, decided to file the present appeal. The appeal was admitted to regular hearing and notice issued to the respondent, who was entered appearance and contested the appeal.

3. I have heard the learned counsel for the appellant, who has argued that the appellant had purchased specific Khasra numbers and the same was the position of the respondent, therefore, the respondent was not his 'co-sharer' by any stretch of imagination. The learned counsel for the appellant in this behalf has placed reliance on Ali Muhammad v. Shera and another 1987 S C M R

207. The same was followed by this Court in case of Nawab Din and 2 others Hassan Muhammad 1987 C L C 1656.

4. On the other hand, the learned counsel for the respondent has raised the preliminary objection as to the competency of this second appeal. I have give opportunity to both the parties to canvass their point of view on this preliminary objection. I uphold the objection of the respondent but convert this appeal into revision petition. The same is treated as a revision petition.

5. Then there was another preliminary objection raised by the learned: counsel for the respondent that since the requirement of section 115, C.P.C. was not been complied with, therefore, this revision petition is liable to be dismissed:, The objection m nutshell is that the petitioner should have filed all the pleadings and necessary documents. I overrule this preliminary objection for the following reasons:- Firstly; this revision petition will be deemed to have been filed in 19'6 when it was presented as a second appeal while proviso to section 115, C.P.C. was added vide section 13 of Ordinance X of 1980, as a result of which the petition is to be accompanied by pleadings, documents etc.; Secondly; that since this was not filed as a revision but I have converted the same and treated it as a revision, therefore, this is only a mere I technicality; and Thirdly; This Court has jurisdiction to exercise revisional jurisdiction suo Motu.

6. On merits it was argued that since two parts of land purchased by the petitioner and respondent belonged to same owners, therefore, the respondent was rightly adjudged as a 'co-sharer' by the two Courts. The learned counsel ire this behalf has relied on the cases of Muhammad Sharif and 6 others v. Shabbir Hussain and 2 others 1986 C L C 2672, Nawab Din and two others v. Hassan Muhammad 1987 C L C 1656 and Muhammad Muzaffar Khan v. Muhammad Yousaf Khan P L D 1959 S C 9.

7. I have given my anxious considerations to the arguments of both sides, gone through the precedent cases cited by the learned counsel and the record. It is true that the definition of 'co-sharer' is not available m the Punjab Pre-emption Act but the same has been interpreted by the Honourable Supreme Court in the case of Mardan Shah v. Shah Nazar Khan P L D 1970 S C

245. The relevant portion reads as under:- "A co-sharer is not statutorily defined, but its legal concept is quite well -settled, namely, that a co-sharer, whatever the extent of his right in the joint property, is a co-owner in every inch of that property to the extent of his share until partition place which he can claim as a matter of right. However, a person who is a part-owner of one of the walls of a house but has no right of any kind in any other part of the house whatsoever, is not entitled to call himself a co-sharer in t-he whole property. His claim, therefore, that by reason of his being a co-owner in a common wall of the disputed house, he should be deemed to be a C0_ sharer in the house in dispute to give effect to his pre-emptive right W that house, is too wild to need any further comment." The same view was expressed in the case of Ali Muhammad v. Shera 1987 SCMR

207. The relevant portion of the judgment of the Supreme Court reads as under:- "We have carefully considered the arguments of the learned counsel for the parties. Admittedly specific Killas had been sold by Khan Masood Ahmad Khan of his landed property to the appellant just as he had sold specific Killa numbers of his property, to the respondents. Sale of specific Killa numbers to the appellant would not make the appellant co-sharer in the property with Khan Masood Ahmad Khan."

8. On the other hand the case of Muhammad Sharif does not advance the argument of the learned counsel. The same is the position of case of Muhammad Muzaffar Khan while both the parties have relied on the case of Nawab Din. The only difference is of citation in different Law Journals. If the judgment is minutely gone into it goes against the respondent and the learned Single Judge has followed the latest view of Honourable Supreme Court in Ali Muhammad's case.

9. In the instant case the petitioner purchased specific Khasra numbers and possession thereof was delivered to him. Similarly, the respondent purchased specific Khasra numbers and he was put in possession thereof or earlier to the petitioner. They have no mutual interest contact with each other. There is no right of joint ownership of the petitioner and the respondent, in the land purchased by either of the parties, therefore, even if we assume that Khata number remained the same, the respondent still cannot be treated as 'co-sharer' in any manner with the petitioner. Both of them are enjoying the land purchased by them without any interference or claim of each other. Had they purchased fractional share of the land then naturally they would have become co-sharers.

10. The result is that I allow this revision petition, set aside the impugned judgment and decree of the Courts below and dismiss the suit of the respondent t for possession through superior right of pre-emption. There is no order as to costs. AA./G-192/L Revision allowed.