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Civil Petition for Leave to Appeal No. 37 of 1983, decided on 23rdOctober, 1983.
(On appeal fro judgment and order of the Peshawar High Court, dated 22nd December, 1982 in Review Second Application No. 378 of 1971).
-----Art. 185(3)‑Co‑sharer‑Sale of land‑Co‑sharer in possession‑Can for consideration, alienate specific field numbers of land in his posses sion‑Vendee's rights on partition would be subject to adjustment if vendor's share in such specific field numbers exceeds his entitlement Petition for leave to appeal dismissed.
Mustafa Khan and 3 others v. Muhammad Khan and another P L D 1978 S C (A J & K) 75 and Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD1959SC9ref.
A. Rashid Qazi, Senior Advocate Supreme Court and K. E. Bhatti, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : 23rd October, 1983.
Leave is sought to appeal against the judgment and order of Peshawar High Court, dated 22‑12‑1982 passed in R. S. A. No. 378 of 1971.
2. One Kala Khan and Faizullah sons of Sultan Muhammad purchased land measuring 91 Kanals and 4 Marlas out of Khasra Nos. 258 and 260 situate in village Shakarha, Tehsil Mansehra in the column of cultivation based on Mutation No. 243 attested on 26‑3‑1964 from one Asam Shah a co‑sharer in possession. Kala's share in the land purchased was double the area purchased by Faizulluh, his brother. Later on, Kala through Mutation No. 271 attested on 29‑5‑1965 gifted half of his acquired share in the land in favour of Mst. Zewar Noor his daughter, and, in this manner Kala Khan, Faizullah and Mst. Zewar Noor became the owners of the suit property. In equal share i.e. 1/3 share each.
3. Shah Hussain, vendee being out of possession, and the entire pro perty having been sold in column of cultivation applied to the revenue officer, by an application, for partition of the land purchased by him to the extent of 1317/17280 out of the afore‑mentioned two Khasra numbers from some of the recorded co‑sharers in the column of ownership vide Mutation No. 255 attested on 29‑7‑1964 and by another Mutation No. 249 attested on 13‑3‑1966 he further purchased land from the recorded co‑sharers in the column of ownership, to the extent of 224/4320 share out of the same Khasras and Khasra No. 264. The partition application was objected to by Kala and others on the ground that they being the sole owners in possession of the land measuring 91 Kanals and 4 Marlas, cannot be dispossessed through the partition proceedings unless the entire holding of Shah Hussain's vendors were included in the partition proceedings so that adjustment could be made of the land purchased by them in the column of cultivation in the event of other co‑sharers being accommodated in these two Khasra numbers. The revenue authorities proceeded with the partition proceedings and finalized the same. Against this, a suit was instituted by Kala, Faizullah and Mst. Zewar Noor in the Court of Civil Judge, Mansebra who dismissed the same per order dated 29‑9‑1969. Appeal before the learned District Judge, Abbottabad also failed vide order dated 21‑7‑1971 but R. S. A. filed in the High Court was accepted by a learned Single Judge vide the impugned judgment and judgments and decrees of the Courts below were set aside with costs.
4. Learned counsel for the petitioner contended that the land in dispute being unculturable was in joint possession of all the co‑sharers and the mortgage as well as the sale of equity redemption of the entire land by one of the joint co‑owners was legally not justified that the vendees from such part owners could not, in law, claim to be the owners out of the land in dispute, of more than what the vendee owned, and could not claim anything beyond that that it is neither alleged nor proved that the petitioner owned any other land jointly with the other co‑owners of the land in dispute, and, therefore, the vendees from Asim Shah the part owner of the land in dispute, can at the best claim either the refund of part of the consideration from their vendor Asim Shah or reimbursement from the other land of their vendor.
5. We have examined the contentions raised by the learned counsel and agree with the finding of the learned High Court Judge in principle i.e. the sale of specific field numbers by a co‑sharer in possession can, for consideration, alienate the land in possession, and if his share in such specific field, numbers exceeds his share, provided it does not exceed his overall entitlement in the land, the vendee's rights would be subject to adjustment on partition as held in the case cited by the learned Judge, entitled Mustafa Khan and 3 others v. Muhammad Khan and another (PLD1970SC(AJ&K)75). In another case also i.e. Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD1959SC9) it was held that the vendee of 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. Thus, we find no force in the arguments of the learned counsel. The petition is, consequently, dismissed.
S. Q. Petition dismissed
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