1. MUIIAMMAD AFZAL ZULLAH, CJ. ---Leave to appeal has been sought by the defendants' side in a suit for declaration; against the dismissal by the High Court, of their Regular Second Appeal. The respondents/plaintiffs' side had sought a declaration that the sale to the petitioners/defendants' side of some specific Khasra numbers from a jointly owned land could not have been effected. The trial Court decreed the suit against the petitioners. Their, appeals having failed they have now sought leave to appeal.
2. Learned counsel has contended that the view taken by the learned Courts below and affirmed by the High Court with regard to a sale from a joint Khata is erroneous. We do not agree with him.
3. The learned Judge in the High Court made reference to Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.)
9. It was necessitated by the following factual aspects of the case noticed in the impugned judgment:- "On the basis of a copy of R.L. II (Exh.Pl) and copy of Jamabandi Exh.P.2, trial Court found the stated shares of the co-sharers to be correct and held the impugned sale to be in excess of the lawful share of Nafis Khan in the joint Khata.": -. , Accordingly, it was held as follows:- . "Sale to the appellants beyond the land left with their alienor in the joint holding is not capable of vesting in them, as propounded in the law laid down in Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC 9,"
4. It needs to be noted that in the case of Muhammad Muzaffar Khan this Court had not only recognized that there was an earlier confusion about the rights of a vendee from a. Co-sharer in undivided property; but also removed the confusion and settled the issue firmly as follows- "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 ofhis 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."
5. It is necessary to remark and explain here that vendee from the co-sharer was held to have become co-sharer. Thus the question formulated in that case by the learned High Court Judge granting the certificate for appeal in the Supreme Court, in so far as this particular controversy goes, was answered in favour of the vendee becoming a co-sharer. In addition thereto an important issue involved in the case on the question of the extent of the rights of such a vendee was also decided. The reference in the last sentence of the quotation to the right to possess can be misconstrued as if to imply that in case a co-sharer is in exclusive possession of property in excess of his share in the undivided Khata, he would be transferring a valid title even in excess of his share on the basis of exclusive possession. And such like view has often been taken on the assumption about what is called Hissadari sale. But as would be seen, it was not so intended. It will no doubt be a Hissadari sale and the transfer of exclusive possession shall also be a factor going in favour of the vendee so as to retain the possession till partition takes place but the most important question in this behalf is, whether, he would be able to retain possession under the cover of Hissadari sale beyond the share of the co-sharer in the undivided Khata. The answer was clearly rendered in double negative by the Supreme Court in the said case of Muhammad Muzaffar Khan. It was mentioned (in the above quotation) that in case the vendor was in exclusive possession of a certain portion of joint land and the possession- is transferred to the vendee; so long as there is no partition between the co-sharers the vendee shall be regarded as stepping into the shoes of his transferor. It was emphasized that the stepping into the shoes of the transferor amongst other concomitant elements in the transfer, will be to the extent only of the "ownership rights" of the transferor in the joint property. Meaning thereby that, vis-a-vis, the exclusive possession, so long as it carries cover of ownership rights also, the vendee shall enjoy the same (exclusive possession) and would get into the shoes of the transferor till the property is divided. If the area under exclusive possession exceeds the area over which the transferor has ownership rights,, then the vendee is not protected regarding ownership or the exclusive possession to the extent of the said excess.
6. Furthermore the area protected both possession and ownership-wise must have been specifically sold to the vendee. He would not be able to lay, hand on an area other than one purchased by him, till of course a final division takes place. This condition is projected in a part of the phrase: "to the extent of the area purchased by him".
7. The foregoing conclusions as already noted are also deducible by the use of a double negative in the phrase "provided that 'the area in question does not exceed the share which transferor owns in the whole property". It clearly meant that in no case the vendee shall be able to have onwership or exclusive possession of the purchased area which exceeded the share of the transferor which he "owned" in the whole property. Thus mere exclusive possession without cover of ownership of the excess area will not be of any benefit to the vendee so as to retain the excess: Learned counsel for the petitioners remained unable to controvert the above-stated position nor was he able to justify his stand that sale by Nafis Khan in excess of his share in the joint Khata in any manner be treated as valid. Moreover if it were held to be otherwise as pointed out by the High Court in the impugned judgment, it would have meant acting in aid of injustice, which not being permissible and/or possible, leave to appeal is refused.