1. ' BASHARAT AHMAD SHAIKH, J.---The High Court vide its judgment of 20th June, 1992 dismissed an appeal filed by the present appellants and upheld the decree passed by the Additional District Judge, Bhimber whereby he dismissed the suit filed by the present appellants for annulment of a sale-deed in respect of the land in dispute executed by respondent Muhammad Saleem Khan in favour of respondents Arshad Mahmood, Muhammad Hanif and Muhammad Taj. The sale-deed had been challenged, inter alia, on the ground that the alienation had been made in excess of the vendor's share.
2. ' The facts which stand concluded by finding of fact are that Muhammad Saleem Khan alienated 4 Kanals 11 Marlas and 6 Sarsaies of land out of 8 Kanals of land under Survey No,4189, Khata No,230 in village Bring through a registered sale-deed dated 10th of February 1985 in favour of Arshad Mahmood, Muhammad Hanif and Muhammad Taj. The suit filed by Inayat Khan and others to challenge the sale-deed was decreed by the learned Sub-Judge and the alienation beyond 1 Kanal 2 Marlas and 6 Sarsaies, which was the share of vendor Muhammad Saleem Khan in the Khewat, was held to be inoperative. The learned Sub-Judge expressed the view that a co-sharer could not sell land beyond his share in a particular Khewat. An appeal taken to the Additional District Judge succeeded. It was held by the first appellate Court that in order to determine whether the alienation was beyond vendor's share or not the share of vendor, Muhammad Saleem Khan in the whole village should have been brought under consideration. In doing so reliance was placed on the judgment of this Court reported as Mustafa Khan v. Muhammad Khan PLD 1978 SC (AJ&K)
75. The High Court has upheld the view taken by the learned Additional District Judge. That Court also relied on this Court's, judgment in Mustafa Khan's case.
3. ' The learned counsel for the respective parties Raja Muhammad Siddique Khan and Ch. Muhammad Taj do not dispute the correctness of the dictum of this Court as expressed in Mustafa Khan's case, but only disagreed on the applicability of the principle enunciated in the precedent case. It has been contended by Raja Muhammad Siddique Khan that while referring to "whole land" this Court did not lay down that the land in the whole village was to be taken into consideration. His contention was that the true connotation of "whole land" was the land in a particular Khewat or Khata. On the other hand Ch. Muhammad Taj contended that the land in the whole village has to be taken into account for resolving as to how much share the vendor has.
4. ' In Mustafa Khan's case this Court laid down that:- ' After careful examination of the law on the point and the facts of this case, we are of the view that a co-share; in possession of specific field numbers can validly transfer such land, even if his share in such specific field numbers exceeds his share, provided it does not exceed his overall entitlement of the share in the whole land. Of course the vendees' rights will be subject to adjustment on partition. But such a sale cannot be legally challenged on the mere ground that the land sold exceeds the share of the vendor in the specific numbers."
5. ' A perusal of the judgment in Mustafa Khan's case does not show that the land in the whole village or estate was taken into consideration. The vendor in that case had transferred 28 Kanals and 11 Marlas of land while he was owner of 76 Kanals and 13 Marlas of land by inheritance. Besides that land measuring 19 Kanals and 3 Marlas also fell to his share as an heir of one Bala. In light of these facts it was held that "Thus it is fully established that the land sold by Walayat Khan being 28 Kanals and 8 Marlas is within his share as joint property". It is apparent that the emphasis was on the property being joint and the words "whole land" meant the land which was the joint property.
6. ' The conclusion reached in the precedent case was based on some reported cases. Two of these judgments are specific on this point and refer to a joint Khata. In Karam Chand and another v. Dr. Karam Dad Khan and others AIR 1938 Lah. 465 it was held as under:--- "It is well-settled that in a case of joint Khata, where one co-sharer has been in exclusive possession of a portion of the joint land, which does not exceed his share in the entire holding, another co-sharer cannot dispossess him against his will from the portion of which he had been in possession."
7. ' It was held in Sukh Dev v. Parsi AIR 1940 Lah. 473 that:--- "As a result, it has been held that a co-sharer who is in such possession of any portion of a joint Khata, can transfer that portion subject to adjustment of the rights of the other co-sharers herein at the time of partition. This view seems to be consistent with the principle embodied in section 44, T.P. Act, regarding transfers of their `interests' in joint proeprty by co-sharers."
8. ' It is also instructive to observe that while dealing with the question of retention of possession by a co-sharer over a parcel of land the Supreme Court of Pakistan referred to share in 'joint Khata' in Atta Muhammad v. Manzoor Ahmad 1992 SCM R 138.
9. ' Therefore the correct position of law is that a co-sharer can validly alienate the land even if his share in specific survey numbers exceeds his share provided it is not in excess of his overall share in the Khewat or Khata. While A calculating the overall share, the share in whole village or estate has not to be taken into account. In the judgment under appeal, while calculating the shares of vendor Muhammad Saleem Khan Khewat No,149/147 Khata Nos.1198, 172 Khata Nos.1307, 186.184 Khata No,1299 were also brought under consideration for calculating the share of the vendor, but it escaped the attention of the High Court that all the joint owners of these lands were not common with the owners of Khewat No,230/226 Khata No,3541 (in dispute). So far as Khewat and Khata under dispute is concerned the owners recorded in Jamabandi Exh. P.B. Are Farman Ali, Sahib Dad, Ali Akbar, Sawar Khan, Rehm Dad, Ghulam Hussain and Mst. Sajada Begum. The owners in Khewat No,149-147 arc Farman Ali, Sahib Dad, Ali Akbar, Sawar Khan, Rehm Dad, Ghulam Hassan and Burhan. The names entered in the ownership column of Khewat No,172 are Fazal Dad and others.
10. Khewat No,186/182 is a Shamlat land which is the `Patti' of Ghulam Qadir, Niaz Muhammad, Boota and Mir Zaman. In face of these facts it cannot be said that land carrying different Khata and Khewat numbers, mentioned above, is the joint property of the parties in the suit. It is also recorded in Exh.P.B., in the portion marked as Exh.P.B./1, that Sahib Dad, Barkat Ali Khan, Sajada Begum, Farman Ali have died and their inheritance has devolved on , their heirs mentioned therein. Vendor Muhammad Saleem Khan is mentioned as one of the heirs of Sahib Dad, Sajada Begum and Farman Ali but there are other heirs who are not owners in Khewat No,230/226, Khata No,3541 (in dispute).
11. It is clear from the facts, as noted above, that the High Court as well as the first appellate Court fell in error in taking into account the share of the vendor in total land in the village, while vendor's share in Khewat and Khata number from which the sale had been effected should have been brought under consideration in calculating his share. Admittedly the share of Muhammad Saleem Khan was 1 Kanal 11 Marlas and 6 Sarsaies while he alienated 4 Kanals 11 Marlas and 6 Sarsaies which is beyond his share. Thus the sale of the land is only valid up to 1 Kanal 11 Marlas and 6 Sarsaies and beyond that it was inoperative.
12. ' We consequently accept the appeal and set aside the decree passed by the High Court and restore the decree passed by the learned Sub-Judge Bhimber. However, having regard to the circumstances of the case we leave the parties to bear their own costs throughout.