1983 PLP 670 (CLC)

My judgment was assailed in appeal before the Supreme Court and the Hon'ble Judges in their order of remand observed that :‑ "There was no legal restraint on the vendor and there can be none to sell his undivided share in the subject land." The Hon ble Judges of the Supreme Court with reference to the following observation passed in an authority reported in P L D 1959 S C 9 remanded the case to me for disposal afresh :‑‑ "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, and 'if the vendor was in exclusive possession of a certain portion of the joint property 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 or qua his ownership rights in the joint property, to the extent of the area purchased by him.' Alienation of the specific plots transferred to the vendee would entitle him to retain possession of them till such time as actual partition by metes and bounds takes place between the co‑shares. I was accordingly required to decide the only question that was material in controversy before me, namely "whether the sale of Fazle Haq vendor was exempt under the aforesaid provision of law." On this question, I have heard the learned counsel for the parties and examined the relevant law, It is a well‑established proposition of law, and respectfully agree with the observations of the Hon'ble Judges of the Supreme Court made by them, in the remand order, that a vendor can purchase the share of a co‑sharer in the joint land and by the act of his purchase, he can step into the shoes of the co‑sharer/vendor.. But with respect, I may say that while ‑previously hearing the revision applicati6n, the question posed before me was that "if a vendee has purchased the sham of a .co‑sharer in the joint property for the construction of a house and his purchase of the share, is pre‑emptod by another co‑sharer, can be claim exemption under section 5 (c) of the N.W. F. P. Pre‑emption Act." This was the question of first impression in my experience in the judiciary. I considered the, question carefully and answered it in negative. Therefore, I held the sale transaction illegal not because that in the circumstances the respondent is not exempt. from pre‑emption under section 5 (c) of the N.‑W. F. P. Pre‑emption Act, but as he has purchased the share of co‑sharer for that purpose in the joint property without the consent of other co‑Sharers, legally it will not be possible for him to construct a house upon any portion of his liking. If the respondent/ vendee had' the intention to construct a house upon the share of vendor/co‑sharer, the proper course for him that before entering into the sale transaction, he should have asked the vendor/co‑sharer to separate and specify his share through partition or in the alternative to secure the consent and willingness of other co‑sharers in that behalf. As the respondent has not done any such thing, therefore, legally be will have no right to choose any area in the joint land for constructing a house thereupon. It is obvious that the vendee will like to have such piece of land in the joint holding as may be fit for constructing a house thereupon, but if in partition he is allotted such portion in the joint holding which will not be fit for constructing a house thereupon, the vendee can .be said to have purchased‑ the land in the joint holding not so much with the object to construct a house thereupon, but he wants to develop the ownership of landed property and that the transaction has been given the colour to show that as he has purchased the land for constructing a house, he is exempt from the pre/emption. under section 5(c) of the N.‑W. F. P. Pr .option Ad. Correct, that the law of Pre‑eruption is clear on the point that a person resident of a village owning no house or owning a house measuring less than one Kanal in the village has the right to purchase land for constructing a house thereupon, for self‑residence and he can legitimately claim exemption from pre‑emption under section 5 (c) of the N.‑W.F.P. Pre‑emption After but I am of the view that this qualification conferred upon a vendee should not go unbridled or without a string or condition. In other words the doctrine of exemption should not be construed in his favour ipso facto and as a matter of automation, unless he is able to show that he has purchased the land free from any possible encumbrance in any form so that they would be no blockade in his way of coctstructing a house after the purchase of the land. Although there is 'no direct authority in a matter of this natures but it is a settled principle of law that none of the proprietors in the joint holding can alter the condition of the property so long as the property remains joint holding. In support of this proportion, I might refer to the following authorities See para. 285 of the Rattigan's Digest in which it is stated that "None of the proprietors could alter the condition of the property without the consent of all the co‑sharers." In Sheo Harakh Upadhya v. .Jai Gobind Tewar (I ), the question posed before the Court for consideration was whether a co‑sharer will have the right to raids a permanent structure upon a piece of land in the joint holding. This question was answered in the negative and it was held : "I would, therefore, be inclined to hold that if the construction put upon the joint land is of such a character as amounts to a permanent structure, or is at any rate of such character as to give exclusive possession to one co‑owner to the ouster of the other co‑sharers, such exclusive possession is not, justified and can be objected to. On the other hand, if one co‑owner occupies apiece of joint land not occupied by others by having some temporary structure or construction on it, there would be no objection, because the structure is of a temporary character only. In Sundar Singh and others v. Harnam Singh and others (2), the suit land measuring 8 Marlas was a part of the joint property of the village proprietors Originally, Harnam Singh and Gurdit Singh, the two brothers, brought a suit under section 9, Specific Relief Act, for possession of these 8 Marlaa which adjoin their houses. The suit was decreed in their favour. In the meantime, the proprietors of the village instituted a suit for a declaration that the 8 Marlas in question was a part of the Shamilat Deh in possession o f all the proprietors and reserved for common purposes. They also sought an injunction directing Harnam Singh and Gurdit Singh not to interfere with the property. This second suit was compromised on the statement of the parties and a perpetual injunction was granted that the defendants should not make any interference based on their sole claims or include it among their own buildings and that it should be used for common use. Thereafter, it so; happened that some of the proprietors started building a Sikh Gurdwara upon the 8 marlas in dispute which prompted Harnam Singh etc. to file a third suit for an injunction directing the defendants to remove the materials and bricks lying on the site and, to restore the (1) A I R 1937 All. 709 (2) A I R 1939 Lab. 514 same to its former condition for use as attached to the well. By the time the matter was ready for hearing, the defendants had completed the building and the plaintiffs obtained leave to amend their suit to one for its demolition. The trial Court dismissed the suit on the ground that it was religious building and that :‑ "It is settled law that no co‑sharer can demand demolition of a building constructed by another co‑sharer over the common land unless he Droves special damage." The plaintiffs appealed and on appeal the learned Senior Subordinate Judge held than in the circumstances the plaintiffs were entitled to demolition of the Gurdawara. He, therefore, accepted the. appeal. The defendants challenged the judgment of the lower appellate Court in second appeal before the High Court. The learned Judge of the High Court referred to the compromise statement of the parties made by them in the previous suit that the land in dispute will be used for common purposes and observed that the defendants‑appellants deliberately built the Gurdawara in order to defeat the compromise they had entered into a few weaks earlier. The appeal was thus dismissed. The above authority will show that the settled law that it will be by the consent of all co‑sharers that any co‑sharer can make a change of permanent nature in any part of the joint holding. As while compromising the matter in the previous suit, the defendants had not sought the permission' of the plaintiffs that the former would construct a Gurdawara, the Court held the construction of Gurdawara‑an illegal act of the defendants and held that the plaintiffs would be entitled to demolish it. Our own Supreme Court in the case of Afsar Khan and others v. Mst. Khanum Jan and others (1) has held that ordinarily a co‑sharer cannot be permitted to alter the nature and character of joint property and to put it into a different use from the one for which it is intended without the consent of other co‑sharers. Now there can be no cavil with the proposition that if a vendee/stranger should purchase land in the joint property, he would become co‑sharer. In the present case, the joint property is agricultural land. It is concede' that by constructing a house, the respondent would alter the nature and character of the joint property. It is also conceded that while purchasing the share of vendee/co‑sharer in the joint property, the vendor or vendee had not already obtained the consent of other co‑sharers that the latte would construct a house upon any share. 1, therefore, do not understand as to how the provision of section 5 (c) of the N.‑W. F. P. Pre‑emption . We can possibly come to the rescue of the respondent to deprive the other co‑sharers of their legal right to claim, against the arbitrary act of respondent to raise structure upon any share or a specific share of land in the join property for the purpose of a house Thus, as in the circumstances of the case, the respondent will not be able to construct a house in the joint property, obviously the pre‑emptive suit of the petitioner as co‑sharer in the said property stands succeeded. In my view, even if a vendee of co‑sharer should purchase land the joint property for the purpose of constructing a house thereupon, h should first ensure that there would be no legal restraint on his act purchasing the share of vendor/co‑sharer be it a specific land or otherwise. In other words, he is duty‑bound to take the consent of other co‑sharers (1) 1983 S C M R 273, to this behalf'. If he bad not taken any such precaution, it is more probable, rather certain, that in partition his share of land in the joint property will fall in the middle or on the other extreme corner which will have no access or approach to the path or thoroughfare. Thus, he will be helpless and will stand nowhere to execute his design of constructing a house. This again would show his complex mind that he is not much more interested in the construction of a house, but his object is to promote his ownership of the landed property. This view would appear to stand confirmed against the respondent when reference is made to mutation No. 2390 dated 1‑11‑1981, placed by the learned counsel for the petitioner on the record of the present proceedings , to show that Israr Muhammad son of the respondent has purchased more land in the same disputed Khasra Numbers, viz. 162 and 1618. For the reasons stated above, I ate humbly of the view that under section 5 (c) of the N: W. F. P. Pre‑emption Act, a vendee/stranger of a co‑sharer/ vendor cannot frustrate and thwart the pre‑emptive right of another co‑sharer, even if the vendee has purchased the land in the joint property for constructing a house and the other cu‑sharers have not consented to the. same and have opposed it. This revision application is, therefore, allowed and while setting aside the judgments of the two Courts below, 1 decree the suit of the petitioner with no order as to costs. M. A. K. Petition accepted.