' MUHAMMAD AFZAL LONE, J.---This is an appeal through leave to appeal by a defendant in a declaratory suit, whose revision from the judgment of the First Appellate Court was dismissed on 24-4-1989.
2. The suit between the parties relates to "Shamilat Deh" in village Toot, Tehsil Pindigheb, District Attock, in which they are co-sharers. The respondent-plaintiff sought a declaration that he was in possession of land measuring 171 kanals, 17 marlas, bearing Khasra No, 3545/30 as a co-sharer, and his possession could not be disturbed till partitioning of the "Shamilat" land. He also assailed the validity of Mutation No, 2378, sanctioned on 26-5-1971, relating to Tanaza Kasht, whereby entry showing the respondent in possession was substituted by one in favour of the appellant. The trial Court dismissed the suit, as the respondent was found out of possession and all the ce sharers in the Shamilat were not impleaded as a party. The First Appellate Court, however, took the view that the respondent sought relief only against the appellant, who got mutation sanctioned illegally, the suit, therefore, could proceed even in the absence of other co-sharers. The mutation was adjudged as illegal on the ground that the Collector merely allowed entry of mutation regarding Tanaza Kasht; the Revenue Officer before sanctioning the mutation had to enquire in the rights of the contesting parties, but he attested the same without giving the respondent any opportunity of being heard. The First Appellate Court further reversed the trial Court's finding regarding respondent's possession.
3. In revision brought by the appellant against the dismissal of his first appeal, the High Court affirmed the findings rendered by the learned Additional District Judge. On perusal of the documentary evidence, comprising copies of the Land Revenue record and the oral evidence examined by the parties, the learned Single Judge held that the land was in possession of the respondent as "khud kasht". He also noticed that the mutation in question was sanctioned in the absence of the parties on the strength of the Collector's order dated 16-3-1971, which was not produced and, therefore, the reasons which weighed with the Collector and the material on which his order rested were not known.
4. Leave to appeal was granted inter alia to examine that ".... According to the record of rights the owners in the Deh were owners in Shamilat in accordance with their other land holding--Hasab, Rasad-Khewat, an owner could retain possession only in accordance with his share. The respondent claimed possession over a much bigger disputed area."
5. We have heard the learned counsel for the parties. On the question of retention of possession by a. Co-sharer over a parcel of land in joint khata, as laid down by this Court in Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 SC (Pak.) 9), Rabnawaz and others v. Akbar All and others (1989 SCMR 93) and C.P. 747 of 1989, decided on 6-10-1990, is that a co-sharer cannot alienate or retain possession under the garb of "hissadari" beyond his share in the joint khata.
Similar is the position regarding possession of a co-sharer over "Shamilat Deh". Faced with this situation Mr. S.M. Ayub, learned counsel for the appellant, categorically stated at the Bar that the appellant shall not retain "Shamilat Deh" more than his share therein and after Rabi crop of the current year shall surrender the possession of the land in excess of his entitlement. The same treatment shall be meted out to the respondent. If the parties fail to surrender the land beyond their entitlement, the Collector District Attock acting in aid of this Court, in pursuance of Article 190 of the Constitution, shall remove the encroachment/trespass over the excess area. The parties are left to bear their own costs.