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Case Judgement http://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=19...

1984 S C M R 427

Present : Muhammad Haleem, Actg. C. J. and Mian Burhanuddin Khan, JJ

SHAH HUSSAIN‑Petitioner

Versus

ABDUL QAYUM AND OTHERS‑‑‑Respondents

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).

Constitution of Pakistan (1973)‑--

-----Art. 185(3)‑Co‑sharer‑Sale of land‑Co‑sharer in possession‑Can for consideration, alienate

specific field numbers of land in his possession‑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.

ORDER

MIAN BURHANUDDIN KHAN, J.‑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 property having been sold in column
of cultivation applied to the revenue officer, by an application, for partition of the land purchased by

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Case Judgement http://www.plsbeta.com/LawOnline/law/content21.asp?Casedes=19...

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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