' This appeal has been directed against the judgment and decree of District Judge Poonch (Rawalakot), dated the 15th of March, 1983, whereby the appeal filed by the appellant, against the judgment and decree dated the 27th of February, 1979, passed by the Additional Sub-Judge Rawalakot, was dismissed.
2. The brief facts which gave rise to the present litigation are that a piece of land measuring eight Marlas comprising survey Nos.730 and 734, situate in village Pothi Makwalan, Tehsil and District Rawalakot, Azad Kashmir, was sold by Salah Muhammad Khan in favour of Sardar Misri Khan, through a registered sale-deed dated the 27th of April, 1981. This sale was pre-empted by the respondent on the ground of being collateral, co-sharer of the vendor and owner in the estate, through a suit dated the 25th of March, 1972.
3. Defendant-appellant resisted the suit on various grounds; one of them being that property sold, was situate within the Municipal limits of Rawalakot Town and was exempt from the operation of the Prior Purchase Act.
4. The parties were put to issues; one of them being:- whether the property in suit was situate within the Municipal limits of Rawalakot and what is its effect on the suit? OPD.
5. The learned Additional Sub-Judge, through his order dated the 27th of February, 1979, held that land comprising survey No. 730 was situate within the Municipal limits of Rawalakot, whereas the land comprising survey No. 734 was outside such limits. He held that although the vendor sold his share in the suit land, yet delivered possession of the land comprising survey No. 734 to the vendee, therefore, the plaintiff was entitled to the grant of a decree for possession of the entire survey No.
734. The land comprising survey No. 730 was held immune from the operation of pre-emption.
6. Vendee-appellant, feeling aggrieved by the decree of the learned Additional Sub-Judge, Rawalakot, went in appeal to the Court of District Judge Poonch who, vide his order, dated the 15th of March, 1984, upheld the decree passed by the learned Additional Sub-Judge and dismissed the appeal. This appeal has been preferred to seek the reversal of the said decree.
7. The learned counsel for vendee-appellant attacked the decree on the ground that plaintiff- respondent has been held entitled to possession of survey No.734 (eight Marlas) from which only one-eighth share was sold, thus, he was entitled to the grant of a decree to that extent only and the decree passed for possession of the entire survey No. 734, was illegal.
8. The learned counsel for the respondents, on the other hand, endorsed the decree and argued that the vendee was given possession of the entire survey No. 734, therefore, the pre-emptor, having stepped into the shoes of the vendee, was rightly held entitled to the possession thereof.
9. The following points require examination for the disposal of the present appeal:-
(i) Will the transaction, in hand, where the vendee sold eight Marlas of land, comprising survey No. 730 (two Kanals and 13 Marlas) and survey No. 734 (eight Marlas) and transferred the possession of the entire survey No. 734, wherein he held only one Marala's ownership (one-eighth share), be a valid transaction; and
(ii) In case, the answer to the above formulated question, is returned in affirmative, whether in a pre-emption suit, a decree for possession for the entire survey No. 734 (eight Marlas), can be granted, when the land comprising survey No. 730, was held to be immuned from the operation of Pre-emption Act.
10. To find out the answer to the questions formulated above, the point has to be determined from the following angles.
11. The question like the present one, where the vendee sold ten Kanals of land comprising survey Nos. 1, 2 and 3 and transferred possession of entire survey No. 1, measuring five Kanals in which the vendor held only one Kanal's ownership, on the basis of having one-fifth share in it, was examined time and again by the High Courts and it was laid down that such a transaction would be valid, provided the sale was within the overall entitlement of the vendor in the holdings A and at the time of the sale, vendor was in possession of the land transferred. This view finds support from the authorities reported in AIR 1940 Lah. 473, AIR 1950 Pepsu 5 and PLD 1955 Pesh.
26.
12. Keeping in view the above-mentioned principle and the fact that the vendor was in possession of survey No. 734, at the time of sale, this transaction is quite legal and had the whole land sold been success fully pre-empted, the matter would have not required any further probe. But here in the instant case, only survey No. 734, measuring eight Marlas, wherein the vendor and on account of sale, the vendee and on the basis of pre-emption decree, the decree-holder, will acquire one- eighth share i.e. the ownership to the extent of one Marla only and the rest of the land i.e. seven Marlas comprising survey No. 730, (one-eighth share) from its total acreage of two Kanals and 13 Marlas will remain in the ownership of the vendee as it was held to be immune from the operation of Pre-emption Act. In such a case how a decree for possession for eight Marlas comprising the entire survey No. 734 passed by the lower Court, can by upheld.
13. The lower Court, Weeping in view the principles that a pre-emptor steps into the shoes of the vendee and a clause in. the sale-deed to the effect that possession of survey No. 734, was transferred to the vendee granted the decree.
14. The above-stated principle is no doubt correct but it has not been correctly applied here. In this case, we have to assume that land comprising survey No. 734 was only the subject-matter of the suit for pre-emption from which one-eighth share was sold; the suit for rest of the land comprising survey No. 730 having been found to be incompetent, due to the Government Notification issued in exercise of the powers vested under section 6 of the Prior Purchase Act. Keeping in view this state of the matter, how a person, entitled to one-eighth share in survey No. 734, can be held entitled to its entire possession.
15. In the circumstances stated above, I hereby accept this appeal, set aside the decree passed by the lower Court and grant a decree fo joint possession (with costs) of one-eighth share in the land comprising survey No. 734 on payment of Rs.12.50 plus the registration charge which the plaintiff- respondent shall pay on or before the 30th of October, 1984 in the Court of Additional Sub-Judge, Rawalakot, if not pal earlier, in favour of the plaintiff-respondent, against the defendant-appellant.
The suit to the extent of survey No. 730 shall stand dismissed. Consequently, the appeal stands accepted.