P L D 1959 Supreme Court (Pak (PLP)

Civil Appeal No. 101 of 1943 (unpublished) ref. Muhammad Shafi, Advocate, Supreme Court, instructed by Amjad Hussain, Attorney for Appellant. Respondent in person. Date of hearing: 29th October 1958. S. A. RAHMAN, J.‑These two appeals come to us on a certificate granted, under clause (c) of section 109 of the Code of Civil Procedure, by a learned Judge of the West Pakistan High Court, Peshawar Bench, which is, in law, the successor Court to that of the Judicial Commissioner, Peshawar. The appeals are directed against the consolidated judgment of the Judicial Commissioner, Peshawar, dated the 25th January 1955, by which two revision petitions arising out of two suits for pre?-emption brought by the appellant, were allowed, the decisions of the Courts below were reversed and the plaintiff's suits dismissed with costs throughout. The facts are these. Khata No. 324 in the area of village Pai district D. I. Khan, comprising of 54 khasras and measuring 2664 kanals 1 marla in area, was in the joint ownership of Samandur and his brother, Qalandar, who between them held a moiety in the Khata, in equal shares, and Alamgir Khan who owned the remaining one‑half share. Between the years 1936 and 1944, 480 kanals of land falling within specific khasra Nos. 1327, 1346, 1357, 1358, 1360 and half of khasra No. 1347 of this very Khata, were purchased by the appellant Muhammad Muzaffar Khan from Alamgir Khan. No partition was even effected between the co‑sharers prior to or after these sales. It appears that the co-?sharers were enjoying in severalty, specific khasra Nos., as fre?quently happens in the case of joint landed property, for the greater convenience of cultivation. Samandur and Qalandar jointly sold 62 kanals out of Khasra No. 1412 of Khata No. 324, to Muhammad Yousuf Khan defendant‑respondent, by a registered sale deed dated the 22nd October 1951, for an ostensible con?sideration of Rs. 2,

000. A mutation followed. Subsequently, Samandur alone transferred an area of 30 kanals out of the same khasra No., to Muhammad Yousaf Khan, the mutation being attested on the 12th February 1952. The sale price as shown in the mutation was Rs. 1,

000. These two sales were sought to be pre‑empted by Muhammad Muzaffar Khan appellant by means of two suits, on the plea that he was a co‑sharer in the Khata of which the property sold formed a part. His suits were decreed by the trial Court, and appeals taken to the Senior Sub‑Judge, D. I. Khan, also failed. The plaintiff's right of pre‑emption was held to be superior to that of the vendee in both suits on the ground of his being a co‑sharer in the property alienated. The learned Judicial Commissioner, in revision, held otherwise, and the question that falls for decision in the two appeals is whether the view taken by him was correct. The legal question involved in the appeals, as formulated by the learned Judge granting the certificate, is whether a person who has purchased specific field Nos. from a co‑sharer in a joint Khata, becomes a co‑sharer in the property, within the meaning of section 12 Firstly of the N. W. F. P. Pre‑emption Act, 1950. In support of the view that such a person did not acquire the status of co‑sharer, the learned Judicial Commissioner relied on Matu and others v. Hirde (44 P R 1894 (Civil)), Jawala Shanker Sahai v. Bohra Siri Ram (A I R 1930 All. 729) and Mir Alam Khan v. Abdul Hamid Khan (A I R 1944 Pesh. 40). He distinguished a Bench decision of the Judicial Commissioner's Court given on the 6th September 1943, in Civil Appeal No. 101 of 1943 (un?published) which was cited before him. In the Punjab Record case, the plaintiff was a co‑sharer in a joint Khata and he came to Court asking for a declaration that he continued to hold two‑thirds share in the joint property, part of which had been sold by his co‑sharer to the defendant. Roe, J. who wrote the principal judgment in the case, held that the plea of limitation could not be raised successfully in bar to the suit and that despite the fact that the profits of the joint holding had been enjoyed by the co‑sharers by separate possession, the plaintiff, who had not joined in tile sale, must be regarded, in the absence of any evidence of partition, to be still a co‑sharer in the alienated land, to the extent of his own share. Plowden, S. J. concurred in this view but, in passing, made a remark to the effect that the purchase by defendant, of specific land, could not make him a sharer in the Khata. The learned Judge added further that whatever right he may have to the land comprised in the sale deed, if it falls to the share of his vendor, as it probably would on a partition, it could not alter the land from being joint property of the co‑sharer in the Khata, into separate property of the pur?chaser. The remark about the vendee's position was clearly obiter, and would seem to be inconsistent with the learned Judge's own observation that the plaintiff in the case still owned a joint share in the property sold. The principles of reciprocity and mutuality would imply that the purchaser had a right to be regard?ed as owner of an area equivalent to that transferred, in the whole joint Khata. In the Allahabad case, judgment seems to have proceeded on its own peculiar facts. The property sold consisted of a share of a Milak, comprised in certain resumed Muafi lands. Some other persons were shown in the Revenue records as owning the entire 20 birwas in the Mahal, and it was found that the proprietors of Milaks held no fractional share in tha Mahal, and could not, therefore, be described as co‑sharers in that Mahal. Coming now to the two Peshawar cases, referred to by the learned Judicial Commissioner, we find that the judgment in the unpublished ruling was written by the same learned Judge who decided the case reported as Mir Alam Khan v. Abdul Hamid Khan subsequently. The former decision was by a Bench of two Judges, and was apparently not noticed by the learned Judge when deci?ding the case of Mir Alam Khan v. Abdul Hamid Khan. In the unreported case, a person who had purchased a specific khasra No. in a joint Khata was held to be a co‑sharer in the Khata to the extent of the area sold to him. The contrary view, however, a was expressed in the subsequent decision, though it seems to us that the previous decision should have been accepted as binding on him by the learned single Judge. Some reliance seems to have been placed by the learned Judge in the second decision on Rahle Singh v. Harnam Singh (37 P L R 276) and Rajindra Singh v. Umrao Singh (A I R 1925 Lah. 223) In the first case, it was found, in point of fact, that a person who owned a specific khasra No. in a khafa was not a co‑sharer in the khata itself. No rule of general application appears to have been laid down, therein. In the second case, a Division Bench of the Lahore High Court decided that a person who is a part owner of a small portion of one of the walls of a house but has no rights of any kind in any other part whatsoever, either of the building or of the site, is not entitled to call himself a co‑sharer in the whole property within the meaning of section 16 of the Punjab Pre‑emption Act. This dictum has no bearing on the question arising in the present appeals. ??????????? It will thus be seen that the cases from which assistance was sought to be derived by the learned Judicial Commissioner afford no solid foundation for the position adopted by him. A plain consideration of the nature of the transaction in the circumstances of this case could, in our opinion, lead to but one conclusion. 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 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 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. 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. 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. It may be pointed out that the mutations in favour of the appellant, which are on the record, describe the sale transactions in his favour as hissadari sales of the joint Khata in suit: The view taken by the learned Judicial Commissioner in these cases, cannot be supported, on any rational principle. We, therefore, allow these two appeals set aside the orders passed by the learned Judicial Commissioner in revision, and restore those of the first two Courts. We leave the parties to bear their own costs in this Court as the respondent did not engage a counsel and did not personally raise a contest in these appeals on the merits. ??????????? A.H.???????????????????????????????????????????????????????????????????????????????????????????????????? Appeals allowed