1. KHAWAJA MUHAMMAD YUSUF SARAF, J.---These two appeals arise out of a judgment and decrees passed by the District Judge, Mangla Dam, on 9-5-1971, whereby he has dismissed both the references filed by the appellant.
2. The facts established and undisputed are that as per sale--deed Exh. P. A. One Abdul Karim from Chakswa ri purchased land measuring 13 kanals, 5 marlas under Survey No. 3230 Khewat 10 from Ghulam Hassan Khan, while as per Exh. P. B., the same vendee purchased 18 kanals, 6 marlas of land under Survey No. 3248 Khewat 23 min from Mst. Niki widow of Diwan A.I and the said Ghulam Hasan Khan. Both the sale deeds were registered on the 15th of Sawan, 1998 Bikrami. The appellant claims that Abdul Karim was a benamidar for him and had for that reason never been in possession of the same. The dispute is not between them but with the co-sharers of the vendors who claim that the vendors not having been in exclusive possession, could not alienate more than their fractional share in the property sold. The Collector Acquisition accepted his claim to the extent of the share of Ghulam Hassan in the case of Exh. P. A. And Mst. Niki and Ghulam Hassan together in the case of Exh. P. B. As per entries of the Settlement Register. This was in keeping with the general policy of the acquisition authorities to apportion compensation in accordance with the entries in the proprietor's column of the said Register.
3. The appellant's case is that he alone was entitled to its entire compensation on the basis of sale and in any case, on the basis of being in adverse possession. With the sale-deeds are attached two copies of Jamabandi for the year 1993-94 Bikrami. The one attached with Exh. P. A. Has the following entry in the proprietor's column : "Abdul Malik Khan J and Mardan All Khan J ". Mardan A.I had two sons as is apparent from the copy attached with Exh. P. B., namely, Ghulam Hassan and Gul Bahar. Thus the share of Ghulam Hassan in the property sold vide Exh. P. A. Comes to 1/4, while in the case of Exh. P. B. As per copy of Jamabandi attached with it, his share comes to 1/16 and that of Mst. Niki to 1/4. The Collector has assessed them to compensation accordingly and the District Judge has confirmed the same. It is admitted that the land sold was within the shares of the vendors.
4. The first question that needs consideration is as to who was in possession of the land at the time of the sales? The Jamabandi Exh. P. A. Records Ghulam A.I and Noor Muhammad sons of Manga Jat as being the tenants; the rent column shows that they were paying batai. As they are not shown to b-- the tenants of any particular proprietor nor has anyone of them been produced to depose to that end, they must be deemed to have been in possession on behalf of all the proprietors and paying batai to them all. The Jarnabandi attached with Exh. P. B. Records Bagga son of Fazal Din as tenant paying batai to Mardan A.I, the father of Ghulam Hassan. By 1998 Bikrami, both Mardan A.I and his son Ghulam Hassan were dead and had been succeeded by the letter's two sons, only one of whom transferred it to the vendee. As there is neither any documentary evidence nor any direct evidence to the contrary, we must naturally presume that it was in possession of both the brothers.
5. The Jamabandi of 199& Bikrami appears to have been lost during the early days of the war of liberation. The next Jamabandi pertains to the year 2001-02 Bikrami; its copies Exh. P. C. And Exh. P.
6. D. Are on record and show the appellant's father Madad A.I as being in possession on account of sale. Since then he and later hoe son are continuously in possession. The appellant has also produced copies of the Crop Inspection register which show Ghulam All and Noora in the case of 3 230 and Bag-la in the case of 3248 as continuing in possession at least up to Rabi 2000 in the case of former and sometime afterwards in the case the latter. There is an entry of Madad A.I's possession in the latter case immediately before Rabi 2000, but this having beer, over-written after Khat-e-Chelipa had beets drawn, cannot lie accepted as genuine and must be rejected. This takes the joint possession of all the co-sharers to at least two years even after the sales. This establishes the fact that the vendors were not in exclusive possession of the lands in dispute at the time of wale and that it was in the joint possession of all the co-sharers. Therefore, although the sales were within the over-all share of the vendors and indeed far below it, they were not entitled to sell beyond their fractional share in the said land. Had they been in exclusive possession, they could have sold it as it was within their share. This proposition was not disputed on behalf of the appellant; the contention of his learned counsel was that they were on adverse possession of the property for over 12 years and were, therefore, entitled to get the entire compensation. In order to determine this question, one has to decide as to whether or not the sales had the effect of making him a co-sharer because if it did, then his mere possession of the remaining portion of the land which the vendors were not entitled to sell for the reason stated earlier, would not prima facie be adverse unless he is able to establish as a co-sharer such a claim.
7. It was contended by the learned counsel for the appellant that since he had purchased specific fields, he could not be termed as a co-sharer. This proposition does get support from certain authorities from Lahore and Allahabad. For instance, AIR 1930 All. 729 lays down that proprietors who do not own any fractional share in the entire property in the Mahal are not co-sharers. The same view was taken in 44 P R 1894 by Plowden, S. J. But it was by way of an obiter dicta and as pointed out by their Lordships of the Supreme Court in PLD 1959 SC (Pak,) 9, was inconsistent with the learned Judges' own observation in the case. The same view was taken by a learned Single Judge in AIR 1944 Pesh.
40. As against this view, we have several authorities including the one by Supreme Court mentioned above. The question directly involved in the case was as to whether a person who had purchased specific field numbers from a CO-sharer in his joint Khata becomes a co-sharer in the property. Holding that he did become a co-sharer, their Lordships said: "A plain consideration of the nature of the transaction in the circumstances of this case could, in our opinion, lead to but one conclusion. 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 less and no more. 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 and bounds takes place between the co-sharers. It is difficult to see in these circumstances why the vendee of specific plots acquiring from a co-owner, in an undivided Khata, does not become a co-sharer in that Khata."
8. A similar view was taken even in Allahabad as will be seen in AIR 1924 All. 305, wherein it was held that a person who purchased a specific plot of land from a co-sharer who owned 1 Anna 6 Pies share in a Mahal, was a co-sharer. It followed several decisions of the same Court including a Full Bench ruling reported as 14 All. 420. The Allahabad ruling of 1930 is even otherwise distinguishable because the land was resumed Maul land within municipal limits and was held to have been governed by custom. It may be pointed out that the rulings of this Court referred to earlier were not brought to the notice of the learned Judges who decided this case.
9. The Calcutta High Court also has in AIR 1926 Cal. 333 taken the same view and held that even a person who is interested in a specific portion of the undivided property, was a co-sharer. The D. B.
10. Held: "This raises a further question whether the plaintiffs can be called co-sharers in the common sense of the word. The learned Vakil for the respondents has argued that a co-sharer is a person who has got an undivided share in the entire holding and a person who has got a divided share in the entire holding and a person who has got a divided shave or the entire interest in a definite portion or area of a holding is not a person who 9s a co-sharer. No authority has been cited before us m support of that proposition. But there is an authority in support of the contrary view in Ishwar Chunder Dutt v.
11. Ram Krishna Dass. In that case the Full Bench held that a sale of a share in a tenure does not of itself effect a severance of the tenure or an apportionment of rent, but if the purchaser of a share desires to have such an apportionment he is entitled to enforce it and in laying down this proposition the learned Judges held that there was no difference between a case when a tenure was severed by different portions of its area being sold to different persons from that where it is sold to different persons in undivided shares. This decision is an authority for the view that a person who has got an undivided share in the holding as well as a person who has become interested in a particular area of the holding is entitled to maintain a suit for apportion--ment of rent. This view is in consonance with common sense."
12. It is settled law at least in Punjab as wail as Azad Kashmir that the transferee of land in the exclusive possession of the vendor co-sharer only steps into his shoes and is entitled to no more and no less. That is why it has been held in several cases such as AIR 1940 Lab. 473, AIR 1950 Pepsu 5 and AIR 1921 Oudh 106, PLD 1955 Pesh. 26 and PLD 1959 SC (Fak.) 9 that such a transferee was entitled to remain in possession but that the transfer was subject to adjustments at the time of partition. There are several reasons why such a transferee-a transferee of specific plots, should be treated as a co-sharer. The transfer is subject to adjustments at the time of partition which means that the said land may not necessarily be allotted to him and may instead be allotted to any other co-sharer. Afterall, as was held in 7 Born. L R 482: "What has to be borne in mind by a Court at the time of partition is not the convenience of one party but the convenience of them all; it has to be made equitable to them all."
13. Similarly, as was held in AIR 1947 Sind 134, each co-sharer is in theory interested in every portion of the joint property and each has the right irrespective of the quality or extent of his interest, to be in possession of every part and parcel of the property jointly with the others. Suppose the total class I land of the co-sharers was ten kanals only and the same was in possession of one of them and the same was also within his overall share. In a partition be would not be entitled to retain the whole of it. Suppose he had sold it. Could the vendee be allowed to retain it in a partition on the plea that he having purchased specific fields, had never been a co-sharer? Afterall, it is not only the quantity of land but also its quality that the Court has to take into account in a partition proceeding. Similarly, questions of improvements may also arise at the time of partition. 1Jow can, therefore a vendee be declared entitled to a higher status than the one enjoyed by the man from whom he gets his title?
14. No one can transfer a title better than the one he himself possesses, If the property would have been available for allotment to some other co-sharer or to equitable adjustment in the matter of quality, had it continued to remain it-, the hands of the original co-sharer, how can it be said and with what justification that he transferee was free from all these limitations? Under these circumstances, I have no hesitation in holding that the vendee even though he purchased specific fields from the vendors, continued to remain a co-sharer. Thal question now arises as to whether his possession of that part of the property which was outside the fractional share of the vendors, was or was not prima facie adverse.
15. As a co-sharer is not restricted under any law from having possession of the joint property in excess of his share, the entry into possession of the share beyond the fractional share of the vendors by the vendee, was not necessarily as a trespasser. He had simply stepped into the shoes of the vendors. However, would the fact that he had purchased this part also and entered into such possession on that account make any difference? There fore two decisions to my knowledge which seem to take the view mat such a purchaser would be holding adversely. In the first cane AIR 1926 All. 07, a house was sold in execution o f a money-decree, say against A. In a suit subsequently brought by another person claiming 7/ 16 share ire the house, it was found chat he did have such a share but as the defendant was in possession since more than 12 years under the court-sale, his possession was held to have been adverse. In AIR 1930 Lab. 214, vendees were in possession under sale, even of the share of a minor co-sharer who was not a party to the sale. It was held by Jai Lal, J. That the sale being void to that extent, the possession of the vendees was adverse. With utmost respect for the learned Judges, I am unable to adopt this view. The vendee in such a case, especially as in the Lahore case, has two :opacities, namely, that of (1) a co-sharer and (2) a vendee. As a co-sharer, he could lawfully enter into possession of that part of the property which the vendors were not on account of not being in exclusive possession of the whole property, legally competent to alienate. He could maintain that position till E partition. If his possession is treated as a vendee, it would be adverse but if it is that of a co-sharer, it will not be, prima facie adverse. It is a cardinal principle of the law of adverse posses--sion that if possession can be traced to a right consistent with the subsistence of ownership, such possession should be referred to that right rather than to a right which negatives ownership.
16. The claim of adverse possession is essentially an immoral plea. It is reminiscent of the jungle law of Might being the Right. It seems to have been clothed with legal sanctity despite its inherent lack of any legality, out of a necessity---Not the necessity of rewarding an aggressor nor that of punishing a victim for his negligence or submission to superior force but in the higher interests of the State and society; it is essentially a law borne out of the dictates of expediency. That is why the Courts insist on strict proof about the adverse character of such a claimant's possession and that is also why one of the most difficult things to be proved in a Court of law, Is the claim of adverse possession.
17. Therefore, in the present case where the appellant had a dual capacity at the time of entering into possession-one that of a co-sharer and the other that of a trespasser, we must take the one which is not inconsistent with the rights and title of other co-sharers in the said property. Of course, even as a co-sharer he was entitled to show that he was in adverse possession of tire property, but there is no evidence except that he was in possession. As he entered into possession under a valid title which made him a cc-sharer, mere possession for over 12 years cannon be treated as being adverse against co-sharers. He was, therefore` entitled to compensation of only that part of the property which was the fractional share of his vendors.
18. Several pleas were raised by the learned counsel for the respondents in support of the decision of the District Judge, but In view of what has been held above, I think it unnecessary, to go into these questions and accordingly dismiss the appeal with, costs.
19. KH. MUHAMMAD SHARIF, C. J.----I agree.