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Civil Appeal No. 102/43 of 1954, decided on 8th May 1956, from the judgment and decree of Habibullah Khan, Dis trict Judge, Peshawar, dated 15th July 1954 whereby the plaintiff‑Appellants' appeal from the judgment and decree of Khan Qaisar Khan, Senior Sub‑Judge, Peshawar, dated 13th May 1954, was dismissed.
, S.100 Second appeal‑Finding of fact based on insufficient (oral) evidence---Ignoring well‑settled rule re: attestation of and recitals in, docu ments‑Upset in second appeal.
A finding of fact that a private partition had taken place between the, parties to the suit, was set aside in second appeal on the ground that the finding was based on oral evidence which was insufficient for establishing the alleged private partition, and that in assessing weight to be given to attestation by plaintiffs of certain lease deeds which contained recitals as to partition, the finding ignored the well‑settled rule that mere attestation of a registered deed or the identification of the executants before the Registrar is not enough to fix a witness with the knowledge of contents of the deed.
Pandurang v. Markandeya Tukaram A I R 1922 P C 20, Rajammal v. Sacapathi Pillai A I R 1945 P C 82 and Labh Singh v. Kehr Singh A I R 1945 Lah. 11 ref.
Attestation‑Does not fix person attesting with knowledge of contents of document.
Mere attestation of a registered deed or the identification of the executant before the Registrar is not enough to fix a witness with the knowledge of contents of the deed.
Pandurang v. Markandeya Tukaram A I R 1922 P C 20, Rajammal v. Sacapathi Pillai A I R 1945 P C 82 and Labh Singh v. Kher Singh A I R 1945 Lah. 11 ref.
Partial‑Co‑sharers pre‑empting of land sold and claiming rest in their own right‑Suit incompetent.
The sale by a co‑sharer of land less than his share must be taken by the pre‑empting co‑sharers as a whole for the purpose of a pre‑emption suit. Pre‑empting, say, th of the land and claiming the rest as co‑sharers in their ‑own right would be hit by the rule against partial pre‑emption and the plaintiffs must therefore be non‑suited.
There is authority for the proposition that in case a co‑sharer has been in possession of a portion of joint land, exclusively, for a long period and the portion in his possession does not exceed his individual share, the other co‑sharers can not oust him therefrom or even get joint possession with him, as long as partition of the joint property does not take place.
In this case the area transferred did not exceed the vendor's share in the joint property. The vendee stood in the shoes of the vendor, and apart from the question of pre emption, would be entitled to retain possession of that land till it was disturbed by an actual partition of the joint pro perty. If the matter was looked at from this point of view, it would be clear, that the plaintiffs would be hit by the principle that they could not sue for partial pre‑emption.
Muhammad Amin v. Karam Dad A I R 1924 Lab. 293 and Saad‑ullah v. Ibrahim A I R 1925 Lah. 518 rel.
Labh Singh v. Kehr Singh A I R 1945 Lab. 11 and Abdul Aziz v. Mariam Bibi I L R 49 All. 219 distinguished.
‑Long standing exclusive possession to extent of individual share‑Cannot be ousted by other co‑sharers except by partition.
There is authority for the proposition that in case a co‑sharer has been in possession of a portion of joint land, exclusively, for a long period and the portion in his possession does not exceed his individual share, the other co‑sharers cannot oust him therefrom or even get joint possession with him, as long as partition of the joint property does not take place.
Muhammad Amin v. Karam Dad A I R 1924 Lah. 293 and Saad‑ullah v. Ibrahim A I R 1925 Lah. 518 ref.
, S. 21 Waiver‑Requires positive act in completion o f sale. Section 21, N.‑W. F. P. Pre‑emption Act (XIV of 1950), requires a positive act in completion of sale in order that a waiver may be spelt out of such act.
Where there was no such positive act and the vendee had only served a notice on pre‑emptor, which did not even men tion the price at which land was offered to him, held that full facts, on which a plea of waiver could be founded were not proved.
Ram Sahai v. Muhammad Tufail 30 P L R 88. ref.
A. Latif for Appellants.
Qaim Shah for Respondent (2).
Pir. Baksh for Respondents (3) and (4).
Date of hearing : 12th April 1956.
.‑The facts giving rise to this appeal are as follows. One Fazal owned 18 kanals 12 marlas of land bearing khasra Nos. 130, 142, 147 and 362, situate in village Lala, District Peshawar. He died some time before 1929 and was survived by four sons, Haji Khan Muhammad (Plaintiff No. 1), Sultan (Plaintiff No. 2), Sikandar and Yaqub (Defend ant No. 1). Sikandar died in 1933 and his share was mutated in favour of Umar Bakhsh, his son, (Plaintiff No. 3) on' the 12th March 1933 vide mutation No. 199. Yaqub, the first defendant, sold khasra No. 545/362 to Faqir Muhammad, the second defendant, for an ostensible consideration of Rs. 5,000 per a registered deed dated the 15th February 1953, which was registered on the 17th February 1953. The land sold comprised an area 4 kanals 2 marlas and was described as in the exclusive possession of the vendor. Before the sale, Yaqub had granted a lease of this very land to Fazal Hussain, third defendant, and Alif Din, the fourth defendant, by a registered deed dated 27th October 1950, for a period of seven years expiring on the 31st December 1957. During the currency' of that lease, on the 12th May 1951, Yaqub purported to grant another lease in favour ‑of the same lessees and one, Muhammad Ayyub, for three years, the lease period to commence on the 1st January 1958, on the expiry of the first lease. He executed a third lease of the same land on the 24th March 1952 for a period of five years, in favour of Fazal Hussain and Alif Din, the first lessees, to start from the 1st January 1961 and to end on the 31st December 1965. All these leases were granted before the sale. The suit out of which the present appeal arises was brought by Haji Khan Muhammad his brother Sultan and their nephew, Umar Bakhsh, for posses sion of this khasra number. They claimed ths of the land in suit in their own right and th by pre‑emption on payment of the proportionate price, Rs. 874‑15‑9. The plaintiffs alleged that the price actually paid by the vendee was Rs. 3 500. The learned Senior Civil judge who tried the suit, granted a decree to the plaintiffs, as asked for, on payment of Rs. 875 qua the th pre‑emptive share, by his order dated the 13th May 1954. The decree made it clear that it was subject to the rights of the lessees. Three appeals were taken from this judgment and decree to the Court of the learned District judge, one by the plaintiffs, the other by the vendee and the third by the' lessees, defendants Nos. 3 and 4. The learned District Judge dismissed the plaintiffs' appeal but allowed the other two appeals. He found that the land sold had been allotted to the vendor Yaqub in consequence of a private partition among members of the family and that he was in exclusive possession of it as sole owner. It followed that the plaintiffs had no share in the land sold and as they had sought to pre‑empt only a part of it, their suit was liable to dismissal. A formal order of dismissal of the suit was, therefore, recorded and the parties were left to bear their own costs throughout, in all the three appeals. A further appeal has been filed to this Court on behalf of the plaintiffs.
It is conceded that the total joint property owned by the parties who are members of the family of Fazal, was 18 kanals 12 marlas and that the property transferred in this case is 4 kanals 2 marlas only. The total share of the vendor in the joint property would come to 4 kanals 13 marlas and it is consequently clear that he had sold less than his due share in the joint property. The parties do not contest this position. It is further conceded that Yaqub was exclusively in posses sion of the sold land, though only as a. co‑sharer according to the plaintiffs.
The first contention raised before us is that the finding of the learned District judge on the question of private parti tion was erroneous. It is common ground that the private partition was not embodied in any mutation and has not been given effect to, in the revenue records. There is the oral evidence of Yaqub vendor as D. W. 8 and of Faqir Muhammad vendee as D. W. 6 on the file, to the effect that a private partition was effected by Fazal, of his property, among his sons and the latter took separate possession of the portions allotted to them. It was alleged that Fazal died some twenty years after that partition. To . counter this oral evidence, there is the statement of Sultan plaintiff as P. W. 2. He denied that any such partition took place. He was supported in this respect by the testimony of Sheikh Ahmad (P. W. 3) and Khan Muhammad plaintiff who was examined as D. W. 8 in the case. Ibadullah patwari (P. W. 1) deposed that there was no entry of partition in the revenue records. This oral testimony, in our opinion, was insufficient for a finding in favour of the alleged partition. Fazals' death must have been followed by a mutation of inheritance and it is remarkable that even at that time the allegation of partition was apparently not made before the Revenue Officers.
When we look at the areas recorded in the possession of the several co‑sharers, the position revealed does not appear to .be consistent with the theory of partition. The areas of which the four lines of Fazal are shown as in possession, are not equal. The learned District judge, in this connection, relied on the circumstances that the vendor Yaqub had created an orchard in the land in his possession and so had one of the other co‑sharers, that Yaqub alone had been paying the land revenue for the land in his possession as testified by Inayatullah Khan Lambardar (D. W. 2) and that he had been dealing with this land as if it was his own property inasmuch as he had granted leases of it to several persons for long periods. In particular, he referred to the fact that the lease deed, Exh. D. W. 1/A, dated 27th October 1950, executed by Yaqub in favour of Fazal Hussain and Alif Din, was attest ed as a witness by Umar Bakhsh plaintiff himself. The lease deed contains a recital about private partition. From an endorsement made by the Sub‑Registrar on this document it also appears that Umar Bakhsh plaintiff was present at the time of registration, though as D. W. 6 this plaintiff professed ignorance of these facts. Then again the lease deed, Exh. D. W. 1/B dated 12th January 1951, was attested by Haji Khan Muhammad plaintiff and he too appeared before the Sub‑Registrar at the time of Registration. That deed too contains a recital about the private partition. Muhammad Ayyub, one of the lessees, mentioned in this lease deed, is no other than the son of Khan Muhammad plaintiff. Khan Muhammad as D. W. 8 admitted that he had attested this lease deed but it was not specifically put to him in the witness box that the deed had been read out in his presence and contained a recital about the partition. As for Muhammad Ayyub, who was examined as D. W. 9, he asserted that he had been made to thumb mark a blank paper. In respect of him, our attention was also invited to the receipt, Exh. D. W. 1/E, executed by this Muhammad Ayyub in favour of his co‑lessees, acknowledging receipt of his share of the profits of the leased land. He apparently surrendered the lease in their favour. The third lease deed, Ex. D. W. 1/D, dated 24th March 1952, however, was not attested by any plaintiff.
The existence of orchards on lands taken possession of by co‑sharers for convenience of enjoyment separately, is not inconsistent with joint ownership of the parties. This might be done by a tacit understanding among the co‑sharers. If' ever there was a partition, no doubt the separate possession of each co‑sharer could be respected as far as possible. The assertion again that Yaqub alone paid the land revenue for the land in his possession rests on the testimony of Inayatullah Khan, Lambardar, (D. W. 2), who had brought a complaint under section 297 P. P. C. against Khan Muhammad plaintiff, but the latter was acquitted. The Lambardar further admitted that in the dhal bachh the names of all the co‑sharers were shown as persons liable for the land revenue. No receipts were produced for the payment by Yaqub alone. These two circumstances relied upon by the learned Additional District judge, therefore, do not appear to advance the case for the respondents materially.
The next question that calls for consideration is as to the value to be attached to the fact that two of the lease deeds executed by Yaqub contained a recital about the private partition and that they were attested by two plaintiffs and the second lease deed was in favour of the son of one of them. The point is, however, well settled on the highest authority that mere attestation of a registered deed or the identification of the executant before the Registrar is not enough to fix a witness with the knowledge of contents of the deed. Reference' in this connection may be made to Pandurang v. Markandeya Tukaram (A I R1922 P C 20) and Rajammal v. Sabapathi Pillai (A I R 1945 P C 82). Further, the fact that Muhammad Ayyub, son of Khan Muhammad plaintiff, may be presumed to have knowledge of the contents of the lease deed, Exh. D. W. 1/B, cannot lead to the inference that his father and other relatives, the plaintiffs, must be imputed that knowledge or must be held bound by the recitals in the deed. An authority for this view is Siraj‑ud‑Din v. Mst. Rahiman (A I R 1936 Lah. 978). Consequently, it must be held that not much value can be attached to the lease deeds in this connec tion. We hold, therefore, that the learned District Judge's conclusion with regard to the factum of partition was not justified on the evidence on record.
The matter, however, does not end there. The further question that falls for determination is whether the suit is hit by the principle that a pre‑emptor must sue in respect of the whole transaction and cannot be permitted to seek partial pre‑emption. This is a well recognised principle of Pre‑emp tion Law and is not disputed by learned counsel for either side. It is, however, contended that an exception has been recognised where the property sold includes some property belonging to the pre‑emptor himself. Reliance was placed in this connection on Labh Singh v. Kehr Singh (A I R 1945 Lah. 11) and Abdul Aziz v. Mariam Babi (I L R 49 All: 219). In the first case, a Division Bench of the Lahore High Court held that when a sale purports to include property which the pre‑emptor claims as his own, the pre‑emptor should be allowed to sue for possession only of that part of the property which does not already belong to him, but it was added that he should be required to pay the same amount as the vendee had to pay even though this may be higher than the actual market value so long as the payment of the whole sum is established. Beckett, J., who delivered the judgment in that case, observed that it was a well‑established principle that partial pre‑emption may be permitted when the pre‑emptor has a right of pre‑emption only in respect of certain out of several properties sold. He, however, expressed a doubt whether the same principle applied when a sale purported to include property, which the pre‑emptor claimed as his own. He pointed out that if a third party had come forward to pre‑empt the sale, he could not put the vendor to proof of his title and he could only ask for substitution for the vendee in respect of the transac tion as a whole, whatever defect of title there might have been. If the same consideration applies to a plaintiff who claims part of the property sold to be his own, in the view of the learned judge, he would then be claiming only partial pre emption. On the other hand, the learned judge remarked that it was possible to look at what had been actually gold in the sense of what had been actually transferred. If the vendor had no right in the property, which belonged to the pre‑emptor, then it could not be deemed to have been transferred at all and, therefore, it would not be a case of partial pre‑emption of the property sold. On the whole, therefore, the learned Judge reached the conclusion that the plaintiff should not be required to pre‑empt for something that belongs to him and is already in his possession. The case is, therefore, distin guishable on the facts inasmuch as it appears that the vendor in that case had included the property of the plaintiff, which was not in the vendor's possession, in the sale, wrongly.
In the Allahabad case, it was laid down that it is not a valid objection to a suit for recovery of possession oaf immov able property that the claim is based partly on a right of pre‑emption and partly on the allegation that some of the property in suit was the plaintiff's own property which had been wrongfully sold by the defendant vendor. In that case, the sale of the property in suit was made by the widow of one, Ali Raza, and the plaintiff claimed to be a residuacy of Ali Raza and therefore entitled to a three‑fourths share in his estate. The widow had; however, transferred the entire property. Here again, the case is distinguishable from the present one. In the instant case, the vendor has not sold the entire joint property but only that portion of it which was in his possession and which does not exceed his own share in the joint property.
There is authority for the proposition that in case a co‑sharer has been in possession of a portion of joint land, exclusively, for a long period and the portion in his possession does not exceed his individual share, the other co‑sharers cannot oust him therefrom or even get joint possession wits, him, as long as partition of the joint property does not take place. The principle was affirmed in three Single Bench judgments of the Lahore High Court reported as Muhammad Amin v. Karam Dad (A I R 1924 Lah. 293), Saad‑ullah v. Ibrahim (A I R 1925 Lah. 518) and Karam Chand v. Kayam Dad (A I R 1938 Lah. 465). Tek Chand, J. in the last‑mention ed ruling referred to this principle as well settled. If, there fore, the plaintiffs as co‑sharers of the vendor in the present case were not entitled to oust him from possession of the land sold, till actual partition took place of their joint pro perty, there is no reason why the transfer should be held to come within the mischief of the principle laid down in Labh Singh v. Kesar Singh and Abdul Aziz v. Mariam Bibi. Here there was no wrongful inclusion of the plaintiffs' property within the sale. The area transferred did not exceed the vendor's share in the joint property. The vendee stands in the shoes of the vendor, and apart from the question of pre‑emption, would be entitled to retain possession of that land till it is disturbed by an actual partition of the joint property. If the matter is looked at from this point of view, it would be clear that the plaintiffs would be hit by the principle that they cannot sue for partial pre‑emption.
I am fortified in this conclusion by the consideration that if the contention raised on behalf of the plaintiffs‑appellants is to prevail, it would lead to multiplicity of actions. In that case, if the plaintiffs succeed in getting part of the property by virtue of their being joint owners with the vendor and part by pre‑emption in the present litigation the vendee would then sue the vendor for indemnification out of his other pro perty in the joint land and get a transfer of the vendor's share in the remaining land so as to make up his loss. This would be followed by another pre‑emption suit by the plaintiffs claiming similar rights as they have done in the present case. I am, therefore, inclined to hold that in the circumstances of this case, the plaintiffs cannot be permitted to claim partial pre‑emption and they should be non‑suited on this ground.
It was also urged on behalf of the respondents that the plaintiffs had waived their right to pre‑empt the sale before the transaction was effected. Sultan plaintiff as his own witness admitted that he had been given a notice to purchase the property before the sale, but he was not asked why he refused to purchase the land. It was only the vendee who served him with the notice, which contained no mention of the price at which the property was offered. The full facts on which a plea of waiver could therefore, be founded have not been proved, and we cannot hold the plaintiffs to be debarred of their right of pre‑emption on this ground. As was held in Ram Sahai v. Muhammad Tufail (30 P L R 88), such a waiver can take place before the sale, but the waiver has to be by a positive act as prescribed by section 21 of the North‑West Frontier Province Pre‑emption Act, 1950. No positive act in the com pletion of the sale is found to have been committed in the present case by the pre‑emptors.
The upshot of the whole discussion is that the plaintiffs, in my view, are not entitled to split up the sale and to sue for partial pre‑emption in the circumstances of the present case. I would, therefore, dismiss the appeal, but in view of the nature of the questions involved in the case, would leave the parties to bear their own costs throughout.
.‑I respectfully agree with my Lord the Chief Justice that this appeal should fail.
A. H.
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