' Both the appeals are directed against the judgment and decree of the Additional District Judge, Poonch, recorded on 27th June, 1983, whereby the appeal of Muhammad Khurshid, pre-emptor, was dismissed and the other appeal of Muhammad Aslam, vendee-respondent, was allowed and suit of Muhammad Alam, pre-emptor, was dismissed. As the appeals are directed against a common judgment, it is proposed to dispose them off together.
2. The controversy has arisen out of alienation of suit land measuring 14 kanals out of 43 kanals 5 marlas comprising Survey No, 379/346/283 and a house, sold by Mst. Noor Begum and Mst. Arsha Begum, in favour of Muhammad Aslam Khan, through a registered sale-deed dated 29th November, 1975. Muhammad Khurshid pre-empted the sale on the basis of his relationship with the vendors, whereas Muhammad Alam Khan, claimed pre-emption as co-sharer in the suit land. Both the suits were consolidated and decided together. It may be stated here that Muhammad Khurshid being a minor, his suit was instituted through Ch. Kala Khan, his father, the next friend, on 28th October, 1978. The rival suit of Muhammad Alam was instituted on 29th November, 1978. The trial Court dismissed the suit of Muhammad Khurshid on the count of limitation and collusion and decreed the countersuit. On appeal, the learned Additional District Judge concurred with the trial Court and dismissed the appeal of Muhammad Khurshid Khan but a?So dismissed the suit of Muhammad Aslam for his failure to prove the claim, as co-sharer in the suit land.
3. The controversy raised in the appeals rests on the following points :-
(i) whether the suit of Muhammad Khurshid was time-barred ;
(ii) whether the suit of Muhammad Khurshid rested on collusion with Muhammad Aslam, vendee ; and
(iii) Muhammad Alam was a co-sharer in the suit land.
' The first objection related to limitation. It was held that Ch. Kala Khan, next friend of Muhammad Khurshid, manipulated by collaboration with Clerk of Court to show that his suit was presented in time, whereas a. Ctually it was lodged after the expiry of limitation. The suit was shown instituted on 28th October, 1978 through next friend. The plaint was presented by K h. Ghulam Mohi-ud-Din, Advocate 'who represented the plaintiff. On the relevant date, no Presiding Officer was .Present, as the Presiding Officer who was transferred to Abbaspur, had not assumed his charge. The Clerk of Court received the plaint and fixed the next date for 28th December, 1978. The record shows that the Presiding Officer recorded the first order in the suit on 10th May, 1979 when the plaint was ordered to be registered. The counter-suit of Muhammad Alam was equally received by the Clerk of Court on 29th November, 1978 and the first order was recorded by the Presiding Officer on 9th May, 1979 when the suit was registered. It is undisputed that on the dates of presentation of both the suits, the Presiding Officer was not present and the suits were presented in the Office and same were received by the Clerk of Court. An objection was raised in the written statement filed by Muhammad Alam Khan that the suit of Muhammad Khurshid was instituted beyond time, but fallaciously was shown to have been received earlier by connivance of the office of Sub-Judge. An issue was framed to that effect. Muhammad Khan, attorney of Muhammad Alam Khan and Suleman Khan deposed that Kala Khan, the next friend of Muhammad Kburshid had gone to Quetta and he came back in December, 1978. On this assumption, it was deposed that the suit was obviously instituted on the arrival of next friend. The subordinate Courts were convinced by evidence of Muhammad Khan and Suleman Khan and consequently, the objection was sustained.
A careful study of evidence as well as record, in well-considered view of the Court, does not lead to identical conclusion. The reasons are that the suit is shown to have been instituted through Kh.
Ghulam Mohi-ud-Din, Advocate who represented Muhammad Khurshid, plaintiff-appellant. The Court fee fixed on the plaint, enters the date as 7th October, 1978. The stamps paid for 'Talbana' as well as stamps fixed on the power-of-attorney of the council also bear the date as 28th October, 1978, the date when the suit was instituted. The documents thus, containing relevant entries of dates and serial numbers of sale of stamps, conclusively reflect that necessary stamps for institution of suit were purchased on the relevant date but these were ignored by the subordinate Courts. In addition to that, it was equally essential for the trial Court to examine the Clerk of Court and Advocate who instituted the suit, to ascertain as to whether plaintiff manoeuvred the presentation of the plaint in the office, as alleged, on the date earlier to its actual institution. The subordinate Courts were equally under duty to take an appropriate action against the Clerk of Court as well as the counsel, in the light of their conclusion whereby the suit, in their opinion, was not found to have been instituted at the relevant time. The orders of the subordinate Courts are silent on all the points discussed above. It appears that the subordinate Courts fell in error by relying upon the testimony of Muhammad Khan and Suleman Khan. Muhammad Khan was not a party .To the suit. He was appointed attorney by Muhammad Alam Khan. Muhammad Khan was appointed attorney by Muhammad Alam on 21st March, 1979. Thus, Muhammad Khan, in any case, acquired interest in the proceedings, at the earliest, at the time of his appointment as attorney. The finding of the subordinate Courts to the effect that had the suit been instituted earlier, it could have come to the knowledge of the witnesses that such suit was instituted and an objection to that effect would have been raised in the counter-suit, is ill-founded. The parties are not supposed to know as to when a particular suit is instituted unless they make such inquiry from the office and are informed accordingly. In the present case, both Muhammad Khan and Suleman Khan, on the basis of whose testimony the suit was declared time-barred, were not _shown to have made any inquiry from the office about the institution of the suit of Muhammad Khurshed in absence of such an inquiry, their version cannot be accepted as sacrosanct. The question of fact, that Kala Khan arrived from Quetta in December, was again disputed as the witnesses failed to elaborate as to bow they acquired knowledge about the arrival of Kala Khan. Again, the testimony of Kala Khan was rejected by the subordinate Courts without sufficient cause. The fact of the matter is that Kala Khan alone was in a position to testify about the time of his arrival. The fact that he failed to disclose the exact date of institution of the suit, by itself was not sufficient to discredit him for such ignorance. It was deposed by the witness that he fixed his thumb-impression on the plaint and left it to the counsel for filing the same in the Court.
' The impression given by the witness appears to be correct as his thumb-impression was shown to have been made on powers-of-attorney. Kala Khan being an illiterate villager was not supposed to distinguish between power of attorney and plaint so as to provide conclusive proof that the suit was instituted in his presence. The aforesaid facts lead to the conclusion that the subordinate Courts not only misinterpreted the documentary evidence, but also failed to take notice of documentary evidence available on the record. It is rightly said that a man may speak lie but the documents seldom do so. The documents referred to above were good enough to lead to the conclusion that the suit was instituted on the date, as entered on it by the office. It may also be stated here that the stamp-vendor was available in the Court premises who could also testify in support of the sale of the stamps, in favour of the plaintiff-appellant. Thus, failure to examine the stamp-vendor, the counsel and the. Clerk of Court, is sufficient to hold that the findings of the subordinate Courts do not rest on established rules of evidence.
4. The second objection pertains to collusion. It was alleged that the suit of Muhammad Khurshid was the result of collusion between the plaintiff and the vendee. Again, the evidence on the point was the testimony of Muhammad Khan and Muhammad Suleman Khan. Muhammad Kban is brother of Muhammad Alam plaintiff and his attorney, whereas Suleman Khan is his first cousin.
Apart from the relationship of the witness with Muhammad Alam Khan, the rival pre-emptor, their testimony is not direct so as to make this Court believe that the suit of Muhammad Khurshid was instituted for the benefit of the vendee. It is accepted that on conclusive proof of collusion, the pre- emptor is deprived of his vested right of preemption. It is in view of the importance of deprivation from vested right that the Courts have always insisted for stringent evidence to prove collusion between the rival pre-emptor and vendee. The onus is always on the preemptor who ascribes collusion to his rival pre-emptor. In the instant case, Muhammad Alam pleaded collusion in his written statement filed in the suit of Muhammad Khurshid. To discharge the onus of proof, he produced Muhammad Khan, his attorney and Suleman Khan. Muhammad Khan confined his testimony to a solitary sentence whereby it was mentioned that the counter-suit was instituted at the instance of Muhammad Aslam, as Muhammad Aslam and Kala Khan came together from Quetta. Suleman Khan, the other witness failed to even attribute collusion in his evidence. Thus, the Court was in possession of solitary sentence of Muhammad Khan, to accept collusion. In fairness to the case, a bald sentence of Muhammad Khan who is attorney of Muhammad Alam Khan and his brother, as such interested, cannot be deemed sufficient to establish collusion. Apart from that, the subordinate Courts ignored the fact that Muhammad Khurshid was minor. He was not shown, in any manner, to have entered into collusion with the vendee. His father, even if for the sake of argument, is held responsible for collusion, the action of next friend cannot be allowed to be used to the detriment of the minor. But in the present case, no action of the, next friend was brought on record to establish collusion with the vendee. The finding of the subordinate Courts was ill-founded, perverse and arbitrary. It is therefore, not sustained. This view finds support from _Ile& Kansir's case (1), wherein it was observed as under :- "...Before a pre-emption suit could be defeated on grounds of waiver and collusion, party alleging collusion should be put to strictest proof to {{FOOT NOTE}}
(1) PLD 1972 Lab. 287 {{FOOT NOTE}} establish that object of plaintiff was really to secure land for vendee-Mere desire to annoy and defeat rival pre-emptor, is not sufficient."
5. The last objection pertains to the status of Muhammad Alain Khan. Muhammad Alam pre- empted the sale on the basis of his status as co-sharer, in the suit land. The trial Court allowed the claim but on "appeal, the learned Additional District Judge disagreed with the trial Court and dismissed the suit tor want of proof. A co-sharer is not defined in the Right of Prior Purchase Act or any other law. In absence of definition of term "co-sharer" in the statute, it is safe to revert to its ordinary dictionary meaning. The word "co-sharer" consists of two words, "co" and "sharer". The word "co" is defined by Webster as :- "signifying in general with, together, in conjunction, jointly, and is used: (1) with verbs ; as, co- sustain, to sustain jointly ; co-adjust, to adjust mutually ; co-operate ; co-exist etc. (z) with participles, adjectives, and adverbs, with the sense of in or to the same degree, amount etc. ; as co-extensive, co-equal, co-evil, co-extensively, co-equally, 3(a) with nouns in general, often importing rights or liabilities which are joint or in common; as co-education, coed venture, co- eternity, co-indication, co-portion, co-inheritance ; (b) with nouns of agency, officer or occupation is particular ; follow ; as co-author, co-partner, co-deter etc. Etc.'
The word, "sharer"; again, signifies to have or possess or retain share or title or right to share. Thus, a person may be called a co-sharer who enjoy or retains any fraction of share in property. It is a rule of evidence that onu of proof is placed on the person who claims title or share in any property- c In order to discharge onus, it is imperative for the plaintiff claiming as co-sharer in the suit land, to prove his title as such. In the present case, th onus was placed on Muhammad Alam Khan to prove that he was co-share in the suit land in the manner discussed above.
6. The relationship of co-sharer was sought to be proved by documentary as well as oral evidence.
The oral evidence consists of testimony of Muhammad Khan and Suleman Khan. Both the witnesses confined their evidence by saying that Muhammad Alam Khan was co-sharer in the suit land. They failed to elaborate the claim of the plaintiff-appellant. The documentary evidence consists of copy of mutation Exh. P. A. According to the entries in Exh. P. A., Muhammad. Alam Khan acquired title in Survey No, 378/346/ 283, measuring 15 kanals, by virtue of gift-deed, dated 10th July, 1963 executed by Dost Muhammad Khan in his favour. The mutation was attested on 3rd April, 1964. Survey No, 378/346 bears Khata No,
101. It is a settled rule that mutations do not create title but copy of mutation Exit. P. A. Is produced in order to prove collateral purpose and for that object, it is permissible to consider it for collateral purpose, to appreciate as to whether plaintiff was co-sharer in the suit land or not. It is already noticed that the suit land enters Survey No, 379/346/283, whereas the land claimed in the ownership of the plaintiff-appellant comprises Survey No, 378/346.
Thus, it is seen that survey numbers are independent of each other. The counter-evidence produced by Muhammad Khurshid is copy of Jamabandi, Exh. D. A. And copy of Jamabandi, 1967- 6ft, Exh. D. B. In addition to that, there is a copy of Jamabandi, 2003 Bk. Which shows that Survey No, 378/346 was separated by partition prior to the preparation of Jamabandi in Dogra Regime and Dost Muhammad Khan, son of Badir All Khan was entered as owner in possession, as vendee of the land. It was shown that land was sold by Muhammad Din, a Fa-sharer. Thus, according to the entries of Jamabandi, 2003 Bk., Dost Muhammad Khan who acquired title in Survey No, 378, got it partitioned and entered in exclusive possession of the same. Dost Muhammad Khan, subsequently transferred the suit land to Muhammad Alam Khan. The suit land forms part of Survey No, 379/346.
The total area of Survey No, 379 was entered as 43 kanals and 5 marlas. Faqar Din and Muhammad Din sons of Mutwali were entered as owner in possession of the same. A copy of Mutation No, 98 dated 23rd February, 1963 shows that Muhammad Din, died issueless and his share of land devolved on his brother, Faqar Din and 41st. Gulab Noor, widow. The present vendors inherited the suit land from Faqar Din as his daughters. One of the vendors was mother of Muhammad Khurshid, whereas the other was his maternal aunt. The record of rights do not enter Muhammad Alam as co-shares in Survey No, 379/346. 'Thus, the documentary evidence clearly excludes the plaintiff- appellant from the category of co-sharer.
7. It is noticed that Muhammad Alam Khan is not entered as co-sharer in the suit land. Thus, in absence of positive evidence in proof of the claim, Muhammad Alam Khan cannot be held to pre- empt the sale of the suit land. It may be stated here that Mr. Muhammad Hussain, the learned counsel for Muhammad Alam Khan, disclosed in his arguments that Dost Muhammad Khan who gifted the property to Muhammad Alam Khan, purchased a specific portion of land measuring 15 kanals out of Survey No, 379 in Dogra Regime and got it partitioned and occupied the same.
According to the learned counsel, as the land purchased by Dost Muhammad Khan, which was subsequently gifted to Muhammad Alam Khan, originally formed part of Survery No, 397/346, Muhammad Alam having entered into the shoes of Dost Muhammad Khan, donor, was entitled to claim as co-sharer in the suit land. The contention was not well-founded as, according to the version of the learned counsel, Dost Muhammad purchased specific portion of land and occupied the same in his own right. It is well-accepted that a vendee purchasing particular part out of one survey number, by `tetimma' and occupying the same by its partition or separation, cannot claim share or title, as co-sharer, in other part of the land. He can do so provided he purchases some share out of one survey number without specific part and does not undertake partition of his share of land. In the present case, the land belonging to pre-emptor was purchased in Dogra Regime by Dost Muhammad Khan and on its partition, was assigned separate survey number and was shown in his exclusive possession, as it has been shown in Jamabandi 2003 Bk. In presence of the aforesaid position, the claim of Muhammad Alam Khan is not found established. In an identical proposition, it was. Held in Mir Alam Khan v. Muhammad (1) as under :- "Pre-emption-Co-sharer--Rival pre-emptor pre-empting on basis of being co-sharer in land but record proving that area purchased by him stood separated and he remained no longer joint owner in Khata in question -Finding of Courts below holding him co-sharer, held, not maintainable -Pre-emptor a contiguous owner, his suit for possession through preemption decreed in circumstances."
' The view of this Court finds support from the dictum of Supreme Court of Azad Jammu and Kashmir, in Abdul Rehman's case (2), wherein the learned Judges held as under:- "Word "Co-sharer"-Meaning-Mere fact that plaintiff is an owner of land in another part of same estate but not joint in property {{FOOT NOTE}}
(1) PLD 1964 Posh, 71 (2) PLD 1978 SC (A J & K) 166 {{FOOT NOTE}} under sale-Does not make him a co-sharer in such land so as to) confer on him right of pre- emption."
8. The result of the aforesaid discussion is that the appeal filed by Muhammad Khurshid whose relationship with the vendors is fully established, succeeds. The counter-appeal, filed by Muhammad Alam Khan fails. Muhammad Khurshid, pre-emptor shall deposit the price of the land as entered in the sale-deed, in addition to the costs of the sale-deed, within a period of sixty days from the date of this order, otherwise his suit shall stand dismissed. In'view of the legal points involved in the appeals, parties are left to bear their own costs.