1. ' BASHARAT AHMAD SHAIKH, J.---This is an appeal, by leave of the Court, from the judgment and decree of the High Court dated 16th of November, 1989, by which the judgments and decrees of the learned Sub-Judge Sehnsa as well as the learned District Judge Kotli were set aside in a pre- emption suit. The High Court has ordered the dismissal of the pre-emption suit filed by the present appellant Lal Din holding that he was not a co-sharer. With the vendors of the suit land, therefore, he had no right of prior purchase in respect of the sale under question.
2. ' The present respondents, Muhammad Afsar, Walayat Hussain and Muhammad Rafique sons of Basia, purchased the suit land under survey No.314 through a registerd sale-deed Ex.PA from Walayat Khan, Musharaf Khan, Bashir Ahmed and Nazir Ahmad on 25th of January, 1983. Lal Din, appellant, filed a suit for pre-emption in the Court of Sub-Judge Sehnsa on the ground that he was a co-sharer in the land under reference along with the vendors. Since the claim of the plaintiff was not accepted, the parties were put to proof. At the hearing of the case Lal Din produced, in order to prove that he was a co-sharer, evidence to the effect that the part of Survey No.314 had been gifted to him through a registered gift-deed prior to the sale-deed Ex.PA mentioned above, and he had thus become one of the co-sharers of Survey No.314. The gift-deed, which is Ex.PB, was executed on 22nd November, 1978, and was registered on the same day. By virtue of this gift-deed Nazir Ahmed Khan son of Gul Dad, who is one of the vendors in the sale-deed in the present suit, transferred 5 kanals and 5 marlas of land from Khasra No.314 out of 19 kanals 2 marlas which is the total area of that survey number. It is stated in the gift-deed that possession of the land measuring 5 kanals and 5 marlas had already been made over to Lal Din, who had constructed a house thereupon. The learned Sub-Judge upheld the plea holding that plaintiff Lal Din had become a co-sharer due to gift-deed Ex.PB and thus had prior right of purchase. He decreed the suit. This finding was upheld by the District Judge on appeal.
3. ' While accepting the appeal filed by the respondents before us, a learned Judge of the High Court expressed the view that "in order to come within the scope of co-sharer, it is enjoined upon the claimant to prove that he retains a fraction of share in the property under pre-emption" and that "in absence of such proof his claim was to be rejected". After stating the law, the learned Judge proceeded to note that when land measuring 5 kanals and 5 marlas out of 19 kanals and 2 marlas under survey No.314 was transferred by gift in 1978, its possession was delivered to the donee and a new survey number, namely, 1013/314, as well as a different khata number was allotted to it. In view of these facts the learned Judge held that the land transferred to Lal Din by gift had practically been partitioned with the result that he had nothing to do with the remaining land under Survey No.314.
4. ' In order to appreciate the reasoning adopted by the learned Judge it would be useful to reproduce from the judgment the two passages which highlight the basis on which the conclusions are based:-- "(i) The position, however, would be different in case where the vendee, on purchasing land out of joint ownership, occupies specific portion out of joint survey number or plot under different survey number and khata as that shall be deemed partition of his share for all practical purposes." (from para. 4).
(ii) In present case, as mentioned earlier, land measuring 5 kanals 5 marlas out of 19 kanals 2 marlas transferred to the pre-emptor by gift, was separated by partition and its possession was delivered to the donee-pre-emptor. A different survey number and khata number was allotted to it.
5. In column of 'proprietor' and 'possession', sole name of the donee was entered. The other co- sharers including the vendors in present case, were not shown in the column of joint owners of the land. Likewise, the pre-emptor was entered as co-sharer with the vendors. The suit land was shown exclusively in ownership and possession of the vendors. This was rightly done as pre-emptor had separated his share of the land and occupied it exclusively as its sole owner. In the circumstances, it has to he accepted that the pre-emptor was not a co-sharer in the suit land. The subordinate Courts misconstrued the record of rights and thereby misled themselves in accepting the status of pre-emptor as co-sharer" (from para. 6).
6. ' It is clear from the above that the conclusions reached by the learned Judge can be broadly divided in two parts, firstly that in Jamabandi columns meant for "ownership" and "possession" sole name of donee Lal Din was entered while the names of donors were not included in the Jamabandi as owners. Secondly, that since, on getting land out of joint ownership, the donee Lal Din occupied a specific portion out of a survey number, the land thus transferred was allotted separate survey and khata numbers it amounted to partition.
7. ' The learned counsel for the plaintiff-appellant, Ch. Muhammad Riaz Akhtar, vehemently contended that the conclusions reached by the High Court, as summarised above, were legally and factually incorrect. He submitted that the land transferred by gift to Lal Din, appellant, in 1978 by Nazir Ahmad Khan had not been partitioned. He also contended that there has been a gross misreading of Revenue record by the High Court as is evident from the fact that Lal Din is not shown as sole owner of land under Survey No.1013/314 as has been held by the High Court. In order to prove his point he took us through the record of the case. He also pleaded that Khasra No.1013/314 was not a new or separate survey number but was only a sub-division "tatimma" of that survey number.
8. ' On the other hand Ch. Muhammad Sharif Tarig, the learned counsel for the respondents, supported the conclusions recorded by the High Court. He cited the following cases:--
(1) Muhammad Alam Khan v. Muhammad Aslam Khan PLD 1984 Azad J&K 51,
(2) Mardan Shah v. Shah Nazar Khan PLD 1970 SC 245,
(3) Abdul Rehman v. Muhammad Afsar Khan PLD 1978 SC (AJ&K) 156,
(4) Sultan Muhammad v. Muhammad Yusuf PLD 1959 Pesh. 120, and
(5) Shah Hussain v. Abdullah Khan PLD 1967 Pesh.
9. 284.
10. ' In Muhammad Alam Khan's case a learned Judge of the Azad Jammu and Kashmir High Court Abdul Majeed Mallick, C.J. (who has also authored the judgment in the present case) apart from defining the term "co-sharer" held that a person whose share is separated as a result of partition ceases to be a co-sharer. In our view the learned Judge has correctly stated the law.
11. ' Mardan Shah's case defines the term "co-sharer" to mean a person who is a co-owner in every inch of that property to the extent of his share until partition takes place which he can claim as a matter of right. This is a definition which, if we may say so, is a correct exposition of legal concept of a co-sharer and is being followed by the Supreme Court of Pakistan as well as this Court.
12. ' In Abdul Rehman's case Ch. Rahim Dad Khan, CJ., while defining the term co-sharer adopted the definition contained in Supreme Court of Pakistan judgment in Mardan Shah's case referred to by us in the preceding paragraph.
13. ' In Sultan Muhammad v. Muhammad Yusuf it has been held that for the purpose of pre-emption each khasra number is to be treated as a separate unit and the pre-emptor must prove his superior right in respect of each one of them.
14. ' The view taken in Shah Hussain's case by the Peshawar High Court is that a co-sharer who has parted with his right by partition or otherwise cannot claim pre-emption as a co-sharer. This view is correct and we concur in it.
15. ' After going through the record, we find that there is no document forming part of the evidence in the case in which the name of Lal Din is shown as a sole owner as held by the High Court. When a specific piece of land measuring 5 kanals and 5 marlas was transferred to Lal Din by way of gift, a mutation was effected and the portion which was transferred was shown as Survey No.1013/314. Its jamabandi for the year 1980-81 was produced in the Court by Muhammad Afsar and others, the defendants in the case, and is marked as Exh. `DC'. This jamabandi is in respect of Survey No. 1013/314 and its area is shown as 5 kanals and 5 marlas. It is duly recorded in it that this land had been transferred by gift to Lal Din by Nazir Ahmed Khan one of the joint owners of the land but the column meant for "ownership" does not show Lal Din as the sole onwer of the land under that number. In fact his name is not recorded in that column. The ownership column carries numerous names as owners. It shows 11,530 shares which are held by the owners in different proportions specified in that column. Among the names entered in it are the names of Walayat Khan, Musharaf Khan, Bashir Ahmad Khan and Nazir Ahmad Khan, who executed the sale-deed in favour of Muhammad Afsar and others which is the subject-matter of pre-emption. Last mentioned Nazir Ahmad Khan is the same person who had earlier gifted 5 kanals and 5 marlas of land to Lal Din.
16. It is, therefore, clear that the finding of the High Court that Lal Din is recorded as the sole person in ownership column is contrary to the record. It is correct that name of Lal Din is entered in column meant to show possession. A separate khata number is also allotted to him. However, these entries do not indicate partitioning of shares. Nazir Ahmad Khan was in exclusive possession of the land and he made over its possession to Lal Din and it was but natural that Lal Din's possession should have been shown in the subsequent jamabandi. Allotment of separate khata number only shows possession because the term `khata' means tenant's holding as is explained in Ghulam Begum v.
17. Khan Muhammad Khan PLD 1984 SC (AJ&K) 38.
18. ' The observation of the High Court that 5 kanals and 5 marlas of land transferred to Lal ,Din by gift was separated by partition is also not borne out from the record. Id fact there is nothing on the file to suggest that partition ever took place in respect of the suit property. An elaborate procedure is laid down in the Land Revenue Act which has to be followed if land has to be partitioned. Under Section 111 of the Punjab Land Revenue Act, 1887, applicable at the relevant time, an application for partition has to be filed by one of the joint owners of the land for partition of his share. Under Section 113 the Revenue Officer with whom the application for partition is filed causes a notice of the application to be served on all the co-sharers of the property and then he commences proceedings for partition. In the end partition is effected by metes and bounds. There is no doubt that when partition takes place and the share of a joint owner is separated in consequence thereof all the persons who were joint owners with him cease to be joint owners, or in other words co- sharers with him. However, we find that no partition was effected in respect of the suit land and the findings of the High Court on this conclusion cannot be sustained.
19. ' It appears that the High Court was impressed by the fact that while mutating the gift in favour of Lal Din, Survey No.314 was sub-divided by the Revenue officials and the transferred land was allocated a separate number and for that purpose a map was also drawn on the reverse side of the mutation sheet. This procedure is followed by the Revenue officials to show separate possession and does not denote the fact that shares in the land had been partitioned as is the conclusion drawn by the High Court. This procedure followed by the Revenue authorities owes its authority from Chapter 7 of the Land Records Manual in which the opening part of para. 7 runs as follows:- "7.8. Transfer of portion of field:--If a part or a share of a field has been transferred and separate possession has been taken, draw on the back of the mutation sheet and its counterfoil a map of the whole field and show as a sub-number the part transferred. No pertition proceedings are necessary."
20. It follows that when Survey No.1013/314 was entered in the record it was not a separate survey number but was a sub-number Survey No.314 and was only meant to indicate the part of khasra number which had been transferred. Even otherwise whether it is called a separate number or a sub-number is not material because it is a matter of form. The substance is the clear legal position that it was not a partitioning of shares.
21. ' There is also another aspect of the matter. Nazir Ahmad Khan was one of the co-owners of land under Survey No.314. Each of the co-owners was owner in every inch of land in that survey number including the land in exclusive possession of Nazir Ahmed Khan who could not transfer their share or interest unless they joined with him. Since transfer was effected by Nazir Ahmad Khan alone Lal Din only stepped into the shoes of Nazir Ahmad Khan and did not become the owner of that land unconditionally and finally. Law is settled on the point that Lal Din having stepped into the shoes of Nazir Ahmad Khan, the land gifted to him was subject to partition. Whenever partition takes place Lal Din would be deemed to be representing Nazir Ahmad Khan and the land held by him would be subject to all those incidents which are characteristics of a partition which would take place irrespective of the fact that it is Lal Din who is now in possession and ownership of the land rather than Nazir Ahmad Khan. That being so there was no question that Lal Din's share could have been partitioned without proper partition proceedings.
22. We may observe that in his judgment the learned District Judge elaborately discussed the effect of marking of 5 kanals and 5 marlas of land as a separate Survey No.1013/314 and expressed the view that if a specific survey number is sold or gifted by one of the co-owners the land thus alienated remained subject to partition. He correctly stated the law that if transfer of a specific field is effected by one of the co-owners it does not effect the rights of the other co-owners and at the time of partition there can be shifting from one piece of land to another while distributing equally the superiror and inferior quality of land. In our view this statement of law is correct and we approve it.
23. ' We have been able to lay our hands on a judgment of this Court which fortifies the main conclusions recorded by us. In the case reported as Muhammad Hussain v. Hassan Muhammad PLD 1984 SC (AJ&K) 122 Sardar Said Muhammad Khan, J. (as he then was) speaking for the Court observed as follows:-- "The learned counsel for the appellant has half-heartedly argued that although Ghulam Hussain pre-emptor, had purchased the suit land out of the land comprising survey number, out of which the sales in dispute were made, yet he purchased a specific plot by virtue of {{URDU TEXT}} and as such he cannot be regarded as a co-sharer in the suit land. The argument advanced by the learned counsel is devoid of any force because a transfer by a co-sharer to any other person of the joint property would make the vendee a co-sharer irrespective of the fact whether the land transferred is a specific plot or not. In such cases the vendee steps into the shoes of the vendor and as such he is co-sharer for all practical purposes, like the vendor."
24. ' The contents of the sale-deed giving rise to the present litigation also do not support the findings of the High Court. In the sale-deed, Ex.PA, Walayat Khan, Musharaf Khan, Bashir Ahmad Khan and Nazir Ahmad Khan stated that the total area of Khasra No.314 was 19 kanals and 2 marlas out of which 13 kanals 17 marlas was available for transfer. It is not stated in the sale-deed that Khasra No.314 comprised of 13 kanals 7 marlas which would have been the area of the land under the survey number if it had been partitioned at the time of the mutation of gift-deed executed by Nazir Ahmad Khan. The fact that in the sale-deed the total area under Khasra No.314 is shown as 19 kanals and 2 marlas shows that the parties considered it undisputed that the survey number stood unpartitioned.
25. In this view of the matter we are of the opinion that the High Court was not right in reaching the conclusions as it did in this case. We hold that the preemptor in the case Lal Din, the present appellant, was a co-sharer and it had been rightly found by the trial Court as well as the first appellate Court that he had a prior right of purchase. Consequently, we accept the appeal and set aside the judgment and decree of the High Court. The judgment and decree of the learned District Judge shall stand restored and the suit filed by Lal Din, the appellant before us, would stand decreed in terms of the decree of the District Judge. There would, however, be no order as to the costs in this Court.