The Supreme Court set aside the judgment of the High Court and restored the judgment of the First Appellate Court. The Court held that as co-sharers in joint land, the plaintiffs were entitled to retain possession of the land they had reclaimed until partition, even if they possessed more area than their actual share. The transfer of possessory rights by a co-sharer is valid and the transferee acquires the same rights as the transferor until partition takes place.
The Supreme Court set aside the judgment of the High Court and restored the judgment of the First Appellate Court. The Court held that as co-sharers in joint land, the plaintiffs were entitled to retain possession of the land they had reclaimed until partition, even if they possessed more area than their actual share. The transfer of possessory rights by a co-sharer is valid and the transferee acquires the same rights as the transferor until partition takes place.
The Supreme Court set aside the judgment of the High Court and restored the judgment of the First Appellate Court. The Court held that as co-sharers in joint land, the plaintiffs were entitled to retain possession of the land they had reclaimed until partition, even if they possessed more area than their actual share. The transfer of possessory rights by a co-sharer is valid and the transferee acquires the same rights as the transferor until partition takes place.
The Supreme Court set aside the judgment of the High Court and restored the judgment of the First Appellate Court. The Court held that as co-sharers in joint land, the plaintiffs were entitled to retain possession of the land they had reclaimed until partition, even if they possessed more area than their actual share. The transfer of possessory rights by a co-sharer is valid and the transferee acquires the same rights as the transferor until partition takes place.
Civil Appeal No.566 of 1995, decided on 5th June, 1998.
(On appeal from the judgment dated 25-5-1994 of Peshawar High
Court, Peshawar passed in C. R. No. 170 of 1987)
(a) Specific Relief Act (I of 1877)---
--S.42---Constitution of Pakistan (1973), Art. 185(3)---Co-sharer in
possession of joint Khata---Entitlement to retain possession till partition---Plaintiff's suit for declaration with perpetual injunction was dismissed by Trial Court---First Appellate Court, however, decreed plaintiff's suit while High Court set aside decree and judgment of First Appellate Court and restored judgment and decree of Trial Court whereby suit had been dismissed---Validity---Leave to appeal was granted to consider that "Qabza Hissadari" having been transferred to plaintiff. they were entitled to remain in possession of land as co-sharers till such time as partition of Shamilat would take place; whether entries in "Wajibul Arz" showed that plaintiffs, as co- sharers, were entitled to bring land in question, under cultivation; and that plaintiffs being in physical possession of more than their shares, such fact was irrelevant to their right to remain in possession till partition of suit land.
(b) Specific Relief Act (I of 1877)---
---S.42---Constitution of Pakistan (1973), Art. 185---Plaintiff's possession
in joint Khata over more area than their share in such Khata---Effect--- First Appellate Court had rightly found that plaintiffs were entitled to keep whatever property they had reclaimed till partition of Shamilat land by metes and bounds would take place---High Court fell in error in modifying decree and judgment of First Appellate Court to the extent of plaintiffs' share in Shamilat land-- Judgment and decree of High Court was set aside while that of First Appellate Court decreeing plaintiff's suit to the extent of their possession, was restored in circumstances.
Feroz v. Sher PLD 1985 SC 254; Saad Ullah v. Ibrahim AIR 1925 Lah. 518; Muhammad Amin v. Karam Das AIR 1924 Lah. 293; Sukh Dev v. Parsi AIR 1940 Lah. 473 and Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9 rel.
Muhammad Zahir Shah, Advocate Supreme Court and Nur Ahmed
Khan. Advocate-on-Record (absent) for Appellants.
Muhammad Munir Peracha, Advocate Supreme Court and Imtiaz
Muhammad Khan, Advocate-on-Record for Respondents.
Date of hearing: 5th June, 1998.
JUDGMENT
IRSHAD HASAN KHAN, J.---This appeal, by leave of the Court, arises
out of a suit instituted by the appellants for declaration with perpetual injunction that they were in possession of 22 Kanals, 6 Marlas of land bearing Khasra No.5009/2 by reclaiming it and plaintiff-appellant No.1 had rightly gifted out the said property to the remaining plaintiffs-appellants through gift mutation No.598 dated 17-4-1977 and that defendant-respondent No.1 fraudulently and collusively got the said mutation cancelled by defendant respondents Nos.5 and 6 herein by order dated 7-5-1980, which is liable for cancellation.
2. The- events which led to the grant of leave are reflected in the leave granting order, which is as follows:-
"The petitioners are successors-in-interest of khanzada. The
latter transferred his rights in 12 Kanals of land out of Khasra No.5009/2, its total area being 22 Kanals and 6 Marlas by means of a mutation dated 17-4-1977. Later that mutation was reviewed and cancelled on 7-5-1980. The petitioners brought this suit to have it declared that they had brought this land under cultivation and were entitled to remain in its possession as co-sharers and that the order dated 7-5-1980 cancelling that mutation was ineffective as against their rights. The learned Senior Civil Judge dismissed the suit by his judgment dated 1- 10-1986. On appeal, the learned District Judge decreed the petitioners' suit and granted the relief of declaration and permanent injunction. On the defendants' revision petition, the learned Judge in the High Court held that the petitioners were co-sharers in the Shamilat, but that their share was only to the extent of ten Marlas. He, therefore, maintained the decree to the extent of ten Marlas only and dismissed the suit as regards "the balance claim of the plaintiffs-respondents in their suit...
2. Learned counsel for the petitioners has referred to the
mutation order dated 17-4-1977 to point out that what was transferred to the petitioners by Khanzada was 'Qabza Hissadari' that is possessory rights in the land. He also referred to 'Fard Wajibul Arz' to show that the petitioners were entitled as co-sharers to bring the land under cultivation. According to him the petitioners were also entitled to remain in possession of the land as co-sharers till such time as the partition of the Shamilat takes place. Learned counsel for the petitioners maintained that the fact that the petitioners are in physical possession of more than their shares as irrelevant to their right to remain in possession till partition."
3. We have heard the learned counsel for the parties, perused the impugned judgment and the material on record.
4. The High Court modified the judgment and decree of the First Appellate Court by holding that the impugned gift mutation could only be held valid and retained to the extent of 10 Marlas of Shamilat land, inasmuch as, Khanzada deceased being an owner of 10 Marlas of Shamilat could not make gift of more than that in favour of his sons, which he did on the strength of his alleged possession over an excess area of the joint land on the pretext that he could retain that possession being a co-sharer till the partition of Shamilat.
5. The impugned judgment rendered by High Court was in conflict
with the law declared by this Court in the case of Feroz v. Sher (PLD 1985 SC 254), wherein the rule laid down in the case of Saad Ullah v. Ibrahim (AIR 1925 Lah. 518), Muhammad Amin v. Karam Das !AIR 1924 Lah. 293) and Sukh Dev v. Parsi (AIR 1940 Lah. 473), was approved the effect that although a co-sharer in Shamilat land, not being a sole owner of the land, cannot sell the full proprietary rights in the land, as sale by him holds good to the extent of conveying the rights, which he can sell including the right to retain possession till partition and that a transferee from such co-sharer has the same rights in the land that his transferor had and is entitled to undisturbed possession of the land as long as the Shamilat is not partitioned. The view taken by this Court in Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 SC 9), was reiterated by this Court in the case of Feroz (supra). The relevant passage in the said report reads thus:--
"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. "
A. In the case. of Feroz (supra), leave to appeal was granted to
consider the contention that:
"the Courts below were wholly wrong in their view that what respondent 2 (Fazal Ahmad) and Mst Muhammad Jan had sold were their possessory rights as distinct from the proprietary rights as co-sharer' and that 'Mutations Nos.486 and 533 related to the totality of rights in the area actually transferred which was in excess of the due share of the transferors in the joint Khata and there being no other joint holding of the parties concerned the petitioner was entitled in law to a declaration he had sought in the suit."
This Court dismissed the appeal with the following observations:
"In the light of these decisions, the concurrent view taken by
the Courts below is not open to exception. Fazal Ahmad and Mst. Muhammad Jan could sell their possessory right in the land and the vendee from them would be clothed with the same right as the vendors had in the property and would be entitled to retain possession till such time as an actual partition takes place between the co-sharers subject to the co-sharers obtaining a declaration that the possession of the vendees is also theirs or seeking dispossession of the vendees through any other remedy under the law. In the result the appeal is dismissed though there shall be no order as to costs." 6. In the case in hand, a bare reading of averments made in paragraph 2 of the plaint and the written-statement together with the mutation order dated 17-4-1977 reveals that what was transferred to the plaintiffs/appellants by Khanzada deceased was 'Qabza Hassadari" i.e. possessory rights in the land. The High Court also recorded a finding to the effect that, "No doubt Khanzada had been shown in possession of about 20 Kanals of Shamilat land comprised in Khasra No.5009/2". The plaintiffs/appellants were also entitled, as co-sharer, to bring the land under cultivation. The learned District Judge, while accepting the appeal, was right in holding. " It is an established law that without going into the share of an owner in Shamilat Deh, he is entitled to keep whatever property he has reclaimed till the partition of the Shamilat land by metes and bounds takes place". Thus visualized, the mere fact that the appellants were co-sharers in the Shamilat to the extent of 10 Marlas,'Qould not affect their possessory rights in the land till such time as partition of Shamilat takes place. We, accordingly, hold that the view taken by the High Court, warrants interference.
7. In the result, we allow this appeal, set aside the judgment and decree of the High Court and restore that of the learned District Judge, Kohat dated 10-1-1997, whereby the decree was passed in favour of the plaintiffs/appellants as prayed for. There shall be no order as to costs.
