' The facts giving rise to this second appeal briefly stated are that Kala Khan and Faizullah sons of Sultan Muhammad purchased land measuring 91 Kanals 4 Marlas falling within specific Nos. 258 (68 Kanals 1 Marla and 260 (23 Kanals 3 Marlas) comprising in Khasra No, 32/179, according to the jamabandi for the year 1963/64 of Village Shakarha, Tehsil Mansehra. In the column of cultivation on the basis of mutation No, 243 attested on 26-3-1964 from one Asam Shah a co-sharer in possession. Kala's share in land purchased was double than that of Faizullah, his brother. However thereafter Kala Khan through mutation No, 271 attested on 29-5-65, gifted half of his acquired land in favour of Mst. Zewar Noor, his daughter and in this manner, Kala Khan, Faizullah Khan and Mst.
Zewar Noor became the owners of the suit property in equal share i,e, 1/3 share each.
2. It will be for advantage to refer that Asam Shah owned considerable landed property in the estate comprising in several joint holdings (Khatas) with others, however, these two Khasra Numbers, the subject matter of the suit, were in his hissadari possession, while his other co-sharer had been in the hissadari possession of the other joint property.
3. The trouble started when Shah Hussain, respondent No, 1 purchased 1317/172801 share out of the aforementioned two Khasra Numbers from some ' of the recorded co-sharers in the column of ownership, vide mutation No, 255 attested on 29-7-64. Yet by another mutation No, 249 attested on 13th March 1965, he further purchased from other recorded co-sharers in the column of ownership 224/4320 share out of the disputed Khasra Number and another Khasra No, 264.
4. Shah Hussain, vendee being out of possession, and the entire property having been sold in column of cultivation, approached the Revenue Officer through an application for partition of the land purchased by him. By then, the land which Shah Hussain had purchased comprised in three separate Khatas i,e, Khata Nos. 17, 28 and 32 according to the jamabandi for the year 1960/61. Three separate applications were made on 6-9-1965 one of which pertains to the suit two Khasra Numbers.
5. It appears from the record of the case that objections were raised to the maintainability of the partition application pertaining to the suit Khasra Numbers. It was objected to by Kala Khan and others referred to above that they being the sole owners in possession of the land measuring 91 Kanals 4 Marlas cannot be dispossessed through the partition proceedings unless the entire holdings (Khatas) of his vendor are 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 accommo-dated in these two Khasra Numbers.
6. The Revenue Authorities though conscious of the fact that partition of part of the joint property is going to adversely affect their right and title still continued with the partition proceedings and proposed the mode of partition and thereafter sanctioned it. Ultimately, as a result of this part partition, these vendees were left with an area of 10 Kanals 7 Marlas and 4 Kanals 3 Marlas shown by Khasra Nos. 258/1 and 260/1 respectively, total, measuring 16 Kanals 10 Marlas out of their purchased land measuring 91 Kanals 4 Marlas.
7. Aggrieved by the partition proceedings and having been deprived of their possessory right and title in the land, the present suit was instituted by Kala Khan, Faizullah Khan and Mst. Zewar Noor in the Court of Senior Civil Judge, seeking the following relief-
(a) Suit for declaration to the effect that plaintiffs are the owners in hissadari possession of the entire land measuring 91 Kanals 4 Marlas bearing Khasra Nos. 258-260 comprising in Khata No, 32/179 entered in the jamabandi for the year 1963/64 situated in Village Shakarha, Tehsil Mansehra, and that defendant No, 1 and rest of the co-sharers have no right to get its partition; that defendant No, 1 and other co-sharers are not entitled to get possession of the suit land or any part of it through partition; that plaintiffs are not bound by the orders of the Assistant Collector dated 4th March, 1967 sanctioning the mode of partition.
(b) For issuance of perpetual injunction restraining defendant No, 1 from proceeding with the partition proceedings in the Court of Assistant Collector, Tehsil Mansehra and Revenue Officer against the plaintiffs and defendants Nos. 2 to 4 and to restrain him from getting possession through partition.
8. The averments in the plaint are that the suit property was in exclusive hissadari possession of Aslam Shah defendant No, 6 through private partition, while the rest of the joint property was in possession of the other co-sharers. It was further claimed that Asam Shah as such, sold the entire two Khasra Numbers in favour of the plaintiffs in column of cultivation and thereafter handed over its possession to them. That Shah Hussain, defendant No, 1 was aware of the fact that entire suit Khasra numbers stood transferred in favour of the plaintiffs in column of cultivation when he was making the purchase of the same very Khasra numbers in the column of ownership from some of the recorded owners, It was, also alleged in the plaint that the other recorded owners from whom defendant No, 1 purchased his share were in turn in possession of other Khasra numbers in the joint land and for this reason, the partition proceedings were illegal and not binding on them unless the entire joint land of the co-sharers was brought in the partition proceedings. The mode of partition sanctioned by the Revenue Officer was also challenged on the ground that a joint mode of partition was prepared and sanctioned in respect of three different and separate applications and furthermore the mode of partition, even, was not acted upon in letter and spirit.
9. Defendants Nos. 1 and 2 in their separate written statements contested the suit of the plaintiffs on several legal and factual grounds, while defendant No, 11 confessed judgment. On the pleadings of the parties, the learned trial Court framed the following issues:-
(1) Whether plaintiffs are the hissadar owners of the suit land, if so, its effect on the partition proceedrigs instituted by defendant No, 1 in the Court of Assistant Collector 1st Grade, Mansehra ?
O.P.Ps.
(2) Whether the partition proceedings instituted by defendant No, 1 are against the' provisions of Martial Law Regulation No, 64, if so, what is its effect ? 0. P. Ps.
(2) Whether the suit is mortgaged property and, as such is not liable to partition ? 0. P. Ps.
(4) Whether partition of suit land cannot be effected until all the joint property of defendants Nos. 2 to 10 is included in partition proceedings ? 0. P. Ps.
(5) Whether the plaintiffs are entitled to retain the possession of the suit land despite partition ? 0.
P. Ps.
(6) Whether the Civil Court has got no jurisdiction to entertain the present suit without the allegation of fraud? 0. P. Ps.
(7) Whether the plaintiffs are estopped by their conduct to institute this suit ?
(8) Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction ? 0.
P. Ds.
(9) Whether the suit is barred under section 56 of the Specific Relief Act ? 0. P. Ds.
(10) Relief.
10. After recording the evidence of the parties, which mainly consisted of the revenue record, statement of the Pat wari and those of the parties, the learned trial Court took issues Nos. 1 to 5 jointly and held thereon that the partition proceedings were validly carried out. It was further held that plaintiffs could be compensated from the other land owned by Asam Shah, their vendor, jointly owned by him, for the land of which they are deprived in consequence of the partition proceedings.
These issues were, therefore, decided accordingly. Without giving his decision on issues Nos. 6 to 9, the suit of the plaintiffs was dismissed
11. On appeal by the plaintiffs, the learned District Judge observed that the only main question that had to be determined was whether the plaintiffs were not bound by the partition proceedings and, if so, on what ground and whether any of such grounds could be entertained in a suit of this nature.
In discussing the question for determination formulated by the learned appellate Court the learned District Judge felt satisfied by simply holding that the partition proceedings were not hit by Martial Law Regulation No, 64 as the share of the plaintiffs exceeded the subsisting holdings. It was also held that the other land of the vendor of the plaintiffs could not have been included in the partition proceedings as in those khatas, the applicant before the Revenue Authorities was not a co-sharer.
Reference was made to section 111 of the Punjab Revenue Act (Now section 135 of the West Pakistan Revenue Act, 1967). On this finding alone, the appeal of the plaintiffs was dismissed.
12. Qazi Muhammad Asif Khan, Advocate, the learned counsel for the appellant and Mr. Muhammad Hussain Lughamani, Advocate, the learned counsel for the respondents present and heard.
13. Initially, this second appeal was admitted to full hearing on the grounds whether the partition proceedings were hit by Martial Law Regulation No, 64 and if it is so hit by Martial Law Regulation No, 64, whether this Court has the jurisdiction to go into that question. Subsequently, the learned Judge of this Court observed in his order dated 28-5-79 that `the point involved is that of partial partition which issue has not been decided by the Courts below'. The learned counsel for the appellant also led great stress on the question as to whether, in the circumstances of this case, the partial partition of the land was permissible and legally justified. The plea of estoppel was also stressed before me.
14. The learned counsel for the appellant, in order to elaborate his argument, referred to jainabandi for the years 1951/52, copy Exh. P. W. 1/1 wherein the Khasra numbers in dispute measuring 91 Kanals 4 Marlas have been shown in the exclusive hissadari possession of Asam Shah. He referred to the certified copies of the mutations of sale Exh. P. W. 1/1 in favour of the plantiffs wherein the Revenue Officer and the Patwari has worked out the total entitlement of Asam Shah in the estate. According to the report at the relevant time, the total entitlement of Asam Shah was 262 Kanals 8 Marlas, he was, therefore, held, competent to 'make the alienation. It was after thorough and due satisfaction, that the Revenue Officer and for that purpose, the vendees got attested the mutation. This mutation was subsequently incorporated in the latest jamabandis. According to the learned counsel till the partition of the entire joint land of the co-sharers, from whom both the parties are purchasers, takes place, the possession of the appellant could not be disturbed.
15. On the other hand, the learned counsel for the respondents, on the finding of the judments of the Courts below, put forward the general proposition of law that all hissadari transfers are subject to adjustment at the time of partition among the co-sharers. Several authorities were cited in support of this proposition which need not be discussed as there is no difference of opinion on this general proposition of law.
16. Having heard the learned counsel for the parties, there is no denial of the fact that (a) the disputed Khasra numbers measuring 91 Kanals 4 Marlas were in the exclusive hissadari possession of Asam Shah at the time of the sale; (b) that Asam Shah owned joint considerable landed property with other co-sharers who were in hissadari possession of other joint land at the time of sale and partition proceedings and (c) that Shah Hussain defendant No, 1 was aware of the transfer of the disputed Khasra numbers in favour of the plaintiffs at the time when he was making the purchase of this property.
17. The sale of specific field numbers by a co-sharer in possession came for consideration before their Lordships of the Supreme Court of Azad Jammu & Kashmir in case titled Mustafa Khan and 3 others v. Muhammad Khan and another where their Lordships observed:- "After careful examination of the law on the point and the facts of this case, we are of the view that a co-sharer in possession of specific field numbers can validly transfer such land, even if his share in such specific field numbers exceeds his share, provided it does not exceed his over all entitlement of the share in the whole land. Of course the vendee's rights will be subject to adjustment on partition."
' In other case titled Muhammad Muzaffar Khan v. Muhammad Yusaf Khan their Lordships of the Supreme Court of Pakistan held :- "The vendee of co-sharer who owns an undivided Khata in common with nother, 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 nd bounds takes place between the co-sharers."
18. Now the question requiring determination is whether on the facts of the present case, defendant No, 1 vendee from a co-sharer could ask for the partition of that part of the property of which his vendor was not in possession excluding his other joint land. The answer will be in the negative as the sale of hissadari possession subject to partition carries with it the equitable right of adjustment, which will be lacking if part partition is allowed. Furthermore, any other view may create hardship for the bona fide purchasers by shrewed and clever joint owners.##TE#
19. This proposition will be explained by giving example. Suppose A, B and C being co-sharers of three different holdings in equal share are in possession of one holding each, and A in possession of one holding exclusively, transfers it in column of cultivation in favour of D and delivers possession1 2 thereof. Subsequent to this sale of hissadari possession, E, very well, in the know of the fact of the sale of the holding by A, purchases the recorded 1/3 share of B in the same and is substituted at his place as an owner in the holding and thereafter applies for partition of the holding already in possession of D, without bringing into the proceeding, the other two holdings, in effect will deprive D of 2/3 share of the holding in spite of the fact that the other two holdings are in possession of B and C. This mechanisation of part partition can frustrate the doctrine of adjustment, if on the ground that E, the transferee from in one holding cannot include the other holdings, in the partition proceedings.
20. Having held that the sale of specific field numbers is always subject to adjustment in partition proceedings, further necessitates the adjustment in the same proceedings. According to legal Thesaurus by Williman C. Burton, `adjustment' means in legal sense of the word, accommodation, correction, reconciliation and its associated word, are adjustment of loss. In this meaning of the ward, in the event of partition duty is cast on the person C conducting the partition to accommodate the vendee and make good the loss, in the same proceedings, in case his vendor has got other joint land in the estate.##TE#
21. It is evident from the statment of the Patwari, when examined in this case, that Munawar Shah from whom defendant No, 1 has purchased the land, was in hissadari possession of 1,247 Kanals, 16 Marlas of which he had earlier sold 593 Kanals 17 Marlas. This entire land he owned jointly with Asam Shah. Consequently upon the facts of this case any other view, than the one earlier expressed, will furstrate the equitable principle of adjustment. In this view of the matter, I am inclined to hold that the partition proceedings carried out in respect of only part of the point land are illegal and ineffective on the rights of the plaintiffs. The judgments and decrees of both the Courts below are set aside and the plaintiffs' suit is decreed as prayed for with no orders as to costs.##TE# PLD 1978 SC (A & K) 75 PLD 1959 SC (Pak.) 9