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Civil Revision No. 177 of 1955, decided on 6th March 1956.
, S. 12, Clause Firstly‑Ala Malik not a co‑sharer with Adna Malik in adna milkiyat.
The term "co‑sharer" in section 12 of the Act refers to co‑sharers holding a similar title.
An Ala Malik can by no stretch of language, be regarded as co‑sharer in adna milkiyat and an Ala Malik has no right of pre‑emption with reference to a sale of adna milkiyat by the Adna Malik.
Naqashband for Petitioner.
Yunas Shah for Respondent No. 1.
.‑This is a revision petition by Ghulam Sarwar vendee‑defendant against the order of Senior Sub‑Judge Dera Ismail Khan District, in a pre‑emption case. It raises a point, which to my knowledge is not covered by any authority of this Court.
The question for decision is, whether Ala Malik (superior proprietor) is a co‑sharer in adna milkiyat (inferior proprietary rights) within the meaning of Clause "Firstly" of section 12 of N. W. F. P. Pre‑emption Act 1950, for the purpose of pre‑emption The learned counsel for the parties have argued the point at great length. I have given full thought to the question and am strongly of the opinion that Ala Malik cant by no stretch of language, be regarded as co‑sharer in adna e milkiyat.
The term "co‑sharer" in section 12 of the Act refers to co‑sharers holding a similar title. An Adna Malik is almost a full proprietor of the land for all practical purposes, and Ala Malik has only nominal proprietary rights. The status of the two, so far as proprietary rights are concerned, is entirely different from each other. A co‑sharer has an unquestionable right to partition off his share in the joint property at any time he wishes. But, in case of property, which is owned by Adna Maliks and Ala Maliks have also their proprietary rights in it, there can be no partition between Adna and Ala Maliks, and, therefore, it is quite obvious that the land owned by Adna Maliks cannot be regarded to be joint and undivided property along with the Ala Maliks.
On this view of the case I concur in the finding of the lower Appellate Court, and dismiss the revision petition with costs.
A. H.
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