' M. S. H. QURAISHI, J.-This appeal by leave of the Court arises out of a suit instituted by appellant Feroz, a co-sharer in land bearing Khasras Nos. 73 and 74 in Khata No, 59, measuring in all 12 Kanals 11 Macias, situate in village Ghitti, Tehsil Haripur, District Hazara. His share was 32/50, the other co- sharers being Fazal Ahmad and Mst. Muhammad Jan to the extent of 9/50 share each. The latter co-sharers sold the entire land of Khasra No, 74 to Sher respondent by Mutation No, 486 of 18-7- 1963. Later, Fazal Ahmad sold 9/50 share in Khasra No, 73 by Mutation No, 533 of 23-10-1964. Mst.
Muhammad Jan having died was succeeded by two sons and two daughters. Gohar Rehman, one of her sons, exchanged his share of 3/50 in the two Khasra numbers, vide Mutation No, 553, dated 16-12-1964. The appellant challenged Mutations Nos. 533 and 553 in a suit which he filed for a declaration that Fazal Ahmad and Mst. Muhammad Jan having already alienated their share in the two fields under Mutation No, 486, the said two mutations in so far as they purported to transfer land by Fazal Ahmad and Gohar Raman were in excess of their due share in the joint Khata and as such were ineffective against his rights. In the alternative he also sought to pre-empt the sales.
2. The trial Court found that Mutation No, 486 having been attested in the cultivation column, Fazal Ahmad was entitled to transfer his share as owner and so Gohar Rehman, too, could exchange his share and that, therefore, the appellant had no cause of action to challenge the mutations. The issue relating to his right to pre-empt the sales was also found against him. In the result, his suit was dismissed. The contention raised before the appellate Court that Fazal Ahmad and Mst.
Muhammad Jan having already sold their share of the property, the subsequent sales were in excess of their share, was repelled for the reason that the relevant Mutation No, 486 having not been produced, it was not possible to express any opinion with regard to the previous alienations that as the Jamabandi for the year 1961-62 showed them to be in exclusive hissadari possession of Khasra No, 74, it was possible that they had.Sold their possessory interest by the mutation and not their right of ownership and that the failure to produce copy of the entry of the mutation would give rise to an inference against the appellant. The appeal was accordingly dismissed. The appellant's second appeal before the High Court also failed precisely for the same reasons.
3. Leave was granted to consider the contention raised that "the Courts below were wholly wrong in their view that what respondent 2 (Fazal Ahmad I and Mst. Muhammad Jan had sold were their possessor rights as district from the proprietary rights as co-sharer" and that A "Mutations Nos. 486 and 533 related to the totality of rights in the are actually transferred which was in excess of the due share of the transferor 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 sough in the suit".
4. If the appellant failed to convince the Courts below that by Mutation No, 486 Fazal Ahmad and Mst. Muhammad Jan had sold their proprietary rights, he is himself to blame. For in the absence of the copy of the record of that mutation, the Courts below rightly felt unable to accept the contention. The learned Judge of the High Court after examining the Patwari's statement and the entry in the Jamabandi for the year 1961-62, expressed that :- "In this statement the Patwari has referred to certain mutations which were not produced before the Court. So, it is not possible to accept the contention of the learned counsel with regard to the previous alienation made by Afzal Ahmad and Mst. Muhammad Jan. The statement of Patwari which I have carefully perused does not carry any conviction as he has not been able to substantiate his statement by producing the earlier mutation showing that these two, namely, Fazal Ahmad and Mst. Muhammad Jan had alienated more than their due share in the suit property. Moreover, even if the statement of Patwari is taken into consideration I find that by Mutation No, 486, which is mentioned in para. I of the plaint, M,t. Muhammad Jan and Fazal Ahmad sold the entire field bearing No, 74 on 18-7-1963 but the Jamabandi of the year 1961-62, copy Exh. P.
W. 1/1, would show that they were in `hissadari possession' of the said field number. So, it cannot be ruled out that they sold only their right of possession by Mutation No, 486."
' The High Court thus rejected both the contentions that Fazal Ahmad and Mst. Muhammad Jan had by the earlier Mutation No, 486 alienated more than their due share in the property or that they had sold anything more than their right of possession in Khasra No, 74.
5. It was held in Saad Ullah v. Ibrahim (1) relying on Muhammad Amin v. Karam Das (2) that although a co-sharer in Shamilat land not being the sole owner of the land cannot sell the full proprietary rights in the land, a 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. Similar view was expressed in Sukh Dev v. Parse (3) and it was further added that a co-sharer in possession of a portion can transfer that portion subject to adjustment of the rights of the other co-sharers therein at the time of the partition and that the other co-sharers' rights will be sufficiently safeguarded if they are granted a decree by giving them a declaration that the possession of the transferee in the lands in dispute will be that of the co-sharers subject to adjustment at the time of partition. In Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (4) also, this Court observed : - "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
(1) AIR 1925 Lah. 518 (2) AIR 1924 Lab. 293
(3) AIR 1940 Lah. 473 (4) PLD 1959 SC 9 such time as an actual partition by metes and bounds takes place between the co-sharers."
6. 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.