' MUHAMMAD YOUNAS SURAKHVI, J.---This appeal, with the leave of the Court, has been directed to call in question the judgment recorded by the High Court on October 16, 1994 whereby, it was opined by the learned Judge that respondent-defendant Mst. Zubedha Begum being out of possession of the disputed survey number could only transfer through sale-deed her fractional share in the survey number i,e, 7 Marlas and 4/1-2 Sersaies. The sale to above extent was kept intact but in respect of the rest of the land for having been made in excess of her share stood cancelled.
2. The precise facts of the case, forming the background of the present appeal, are that a sale- deed was executed by defendant Mst. Zubedha Begum in favour of Muhammad Afzal Khan and Muhammad Farooq Khan on January 22, 1991, in respect of land measuring 3 Kanals 2 Marlas and 4 Sersaies comprising Khewat No,117, Khata No,378, Survey No,950 situate in village Chowki, Tehsil Samani, Muhammad Latif, plaintiff, respondent herein, filed a declaratory suit in the Court of Sub- Judge Bhimber on February 2, 1991, in respect of the suit land claiming therein that the transfer of the land for having been made by Mst. Zubedha Begum defendant in excess of her share and transfer of specific survey number without being in possession and partition was illegal, ineffective and inoperative against the plaintiffs interest. It was averred that the sale-deed was liable to be cancelled. The plaintiff-respondent further prayed that appellant-defendants be directed to refrain from interfering in his possession over the suit land. The learned Sub-Judge, Bhimber after taking necessary proceedings dismissed the plaintiff-respondent's suit to the extent it related to the cancellation of the sale-deed but allowed decree of permanent injunction restraining the defendants from interfering into plaintiffs possession and taking over the possession of the suit land forcibly. On appeal filed by the plaintiff-respondent the learned Additional District Judge, Bhimber allowed the decree for the cancellation of the sale-deed to the extent of 11 Marlas and 5 Sersaies and kept the sale-deed intact to the extent of 2 Kanals 10 Marlas and 8 Sersaies.
Accordingly the judgment and decree passed by the learned Sub-Judge was modified by the learned Additional District Judge, Bhimber vide his order dated September 30, 1993. The legality of the aforesaid order was challenged by plaintiff-respondent in the High Court through a second appeal and the learned Judge vide his impugned order dated October 16, 1994 opined that defendant Mst. Zubedha Begum, being out of possession of specific survey number could only transfer her fractional share through sale-deed in the survey number i,e, 7 Marlas and 4/1-2 Sersaies. The sale-deed, as said earlier, to that extent was kept intact but in respect of rest of the land for having been made in excess of her fractional share stood cancelled. However, the decree relating to the consequential relief allowed by the learned Sub-Judge was also kept intact. Hence this appeal.
3. Plaintiff, Muhammad Latif in support of his case produced Muhammad Alam and Muhammad Boota as his witnesses, besides Muhammad Latif plaintiff also appeared as his own witness. From the defendants' side Allah Dad appeared as a witness and one of the defendants Muhammad Afzal appeared as his own witness and produced certified copy of mutation marked as Exh. DA. The only document produced from the plaintiff's side was the copy of sale-deed under challenge and exhibited as PA. This is the sum total of the evidence produced by the parties.
4. Arguing the case on behalf of appellants, Ch. Muhammad Azam Khan, the learned counsel vehemently contended that the trial Judge vide his judgment dated April 28, 1993 by recording his finding on issue No,1 observed that since during the arguments this issue was not pressed by the plaintiff so the same is decided against him. It may be highlighted that issue No,1 relates to the following effect:-- "Whether the sale-deed under challenge, on account of its being in excess of share, without partition and of specific survey number without being in possession of the vendor is illegal, ineffective and inoperative on the rights of the plaintiff."
' On the aforesaid premises it was contended by the learned counsel for the appellants that after the finding having been recorded on this issue, by the trial Judge, the respondent-plaintiff could not agitate the plea that vendor not being in possession of the specific survey number could not alienate the same through sale-deed.
5. It was strenuously argued by Ch. Muhammad Azam Khan that plaintiff in his own statement before the trial Court did not assert that the sale-deed in question was in excess of the share of the vendor. The learned counsel pressed into service the submission that the sale-deed could at the most be cancelled to the extent of 15 Marlas which falls in the share of plaintiff-respondent. In order to substantiate his contention the learned counsel for the appellants relied on a case reported as Anayat Khan and another v. Muhammad Saleem Khan and others (1993 SCMR 182). The learned counsel submitted that despite the fact that the vendor was not in exclusive possession of the specific survey number the same could have been legally transferred by her provided the sale- deed did not exceed her overall share in the Khewat.
6. Controverting the arguments advanced by Ch. Muhammad Azam Khan, the learned counsel for respondents, Ch. Muhammad Anwar, strenuously contended that the decree passed to the extent of its restraining order by the trial Court in favour of respondents and the findings recorded on issues Nos.1 and 3 were not challenged by the appellants by way of appeal or cross-objections. So these findings have attained finality, in so far as the appellant-defendants are concerned. The learned counsel maintained that while recording the finding on issue No,3, it was opined by the learned trial Judge that defendant-appellants have conceded that the plaintiff-respondent is a co-sharer in the suit land and is in its possession and would not be disturbed by the defendant- appellants forcibly. In this view of the matter the finding on issue No,3 was recorded against the appellant-defendants which was never challenged by way of appeal or otherwise and as such it had attained finality. The learned counsel submitted that it was also conceded from the defendant-appellant's side in the trial Court and in the Court of Additional District Judge that the vendor had alienated the land in excess of her share. It was further elaborated by the learned counsel for the respondents that vendor being out of possession in the specific survey number under dispute was not competent to alienate more than her fractional share. The share of the vendor in the survey number is admittedly to the tune of 7 Marlas and 4/1-2 Sersaies and any transaction made by the vendor in excess of the share, through sale-deed, is liable to be cancelled, on account of it being a nullity in the eye of law.
7. We have carefully taken into consideration the points canvassed by the learned counsel for the parties and examined the record made available with care.
8. At the very outset it may be pointed out that the appellants did not challenge the findings recorded by the trial Court on issues Nos.1 and 3 by way of any appeal or cross-objections. Thus the findings recorded in so far as the appellants-defendants are concerned, have become final, and attained finality. While recording his finding on issue No,3 it was opined by the learned trial Judge that it was conceded from appellant-defendant's side that respondent-plaintiff Muhammad Latif was a co-sharer in the suit land and is in its session who would not be forcibly dispossessed. Accordingly the learned trial Judge passed a decree to the extent of restraining order against defendant-appellants. This finding was further confirmed by the learned Additional District Judge vide his order dated September 30, 199:3. On appeal taken by the respondent- plaintiff before the learned Additional District Judgethe finding recorded by to trial Court on issue No,1 was modified and the sale-deed in question to the extent of 11 Marlas 5 Sersaies was declared as invalid and ineffective on the rights of plaintiff-respondent.
9. The only point that needs resolution in the instant case is as to whether a co-sharer of a joint land not in possession of a specific survey number can validly alienate the whole of it. The precise contention of Ch. Muhammad Azam Khan the learned counsel for .The appellant is that in such an eventuality even if the share of the vendor exceeds in a specific survey number he or she is fully competent to alienate the whole survey number provided the sale is not over and above his or her share in the Khewat. Ch. Muhammad Azam Khan seriously contested the proposition on the authority of this Court in Anayat Khan's case. For proper perception of the point involved, it would be useful to reproduce the principle laid down in Anayat Khan's case which reads as under:-- "A co-sharer can validly alienate the land even if his share in specific survey number exceeds. His share provided it is not in excess of his overall share in the Khewat or Khata, while calculating the overall share, the share in whole village or estate has not to be taken in the account."
' From the plain reading of the principle enunciated in the above case the point involved in the precedent case was not precisely the same as in the instant case. In the above case a co-sharer not being in possession of a specific survey number was not considered at all by this Court. On the other hand the word `whole land' was under the examination of the Court.. We may refer a portion from the judgment of Anayat Khan's case so that the matter under the examination of the Court may be highlighted. Page 183, para. No,3 in Anayat Khan's case is reproduced below:-- "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 disagree 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."
' The above para. From Anayat Khan's case was reproduced just to show that in that case the interpretation of connotation "whole land" was under examination of the Court, the expression which was used in the previous judgment of this Court reported as "Mustafa Khan and 3 others v.
Muhammad Khan and another" (PLD 1978 SC (AJ&K) 75).
10. Looking the instant case from another angle, even if we assume the contention raised by the learned counsel for the appellants to be true for the sake of arguments, we regret that we are not in agreement with the contention raised by Ch. Muhammad Azam Khan for the simple reason that in the instant case the only documentary evidence produced from the side of appellants- defendants is the copy of mutation Exh. DA, wherein, only the acreage of Khasra number in dispute is entered. We are not in possession of any documentary evidence produced by the parties to calculate as to how much is the total acreage of the Khewat wherein the survey number in dispute is entered. The learned Additional District Judge while calculating the shares relied on Jamabandi 1970-71 which was produced before him during the arguments. This is no way of admitting a document into evidence. The above-referred Jamabandi was neither tendered in evidence at the relevant time before the trial Court nor exhibited by any of the parties at the time of recording the evidence; so this document could not have been legally taken into - consideration. In absence of any evidence on record we cannot come to any conclusion with regard to the total acreage of Khewat as contended by the learned counsel for the appellants. Even otherwise we are of firm opinion that in a case where vendor is not in exclusive possession of the specific survey number alienated by him through sale or gift, he or she is under law not competent to transfer the whole survey number. In the instant case in accordance with the entries in the copy of mutation Exh. DA, the total acreage of Survey No,950 has been shown as 4 Kanals and 10 Marlas. So from the evidence on record it stands admitted even by the appellants that the whole of survey number is not in possession of Mst. Zubedha Begum, the vendor. It is a settled principle of law that a co- sharer out of possession could only validly make a transfer to the extent of his or her fractional share in that survey number and not, beyond that. Admittedly the fractional share of Mst. Zubedha Begum defendant was 7 Marlas and 4/1-2 Sersaies and she was competent to alienate the land only to that extent. The learned counsel for the appellants also took the plea that the land that still remains undisposed of out of Survey No,950 was more than the fractional share of the plaintiff. The plaintiff-respondent therefore, had no right to make a challenge to the validity of the sale-deed or ask for its cancellation and if at all the sale-deed was to be cancelled, it could only be to the extent of 15 Marlas which was the fractional share of the plaintiff. This argument too on careful consideration is found to have no substance for the reason that the plaintiff who is in possession of Survey No,950 has a right to stay in possession and even has a right to dispose it of which still remains undisposed provided it was within his overall share in the Khewat, subject of course to adjustment during the partition. Our aforesaid view is fortified by the principle laid down in the case reported as "Mustafa Khan and 3 others v. Muhammad Khan and another" (PLD 1978 SC (AJ&K) 75), a case which was relied in Anayat Khan's case. The principle enunciated in Mustafa Khan's case is to the following effect:- "Co-sharer in possession of specific field number -- Can validly transfer such land even though his share in such specific field numbers exceeds his share provided it does not exceed his overall entitlement of share in whole land -- Vendee's right, however, subject to adjustment on partition in such eventuality -- Sale, held, cannot be legally challenged on mere ground of land sold exceeding share of vendor in specific numbers."
' The above authority of this Court lays down the correct exposition of law, since the point under the examination of the Court was precisely the same as in the instant case.
11. A similar point came under consideration in the case reported as "Syed Jamal Shah v. Abdul Qadir Shah and others" (PLD 1955 Peshawar 26), wherein it was held by Mr. Justice Muhammad Sbafi, J. That:-- "A person, who is in exclusive possession of a certain portion of a joint property, can alienate that property, but then the alienation will be subject to any adjustment which takes place at the time of the partition of the joint property, and the person, to whom that joint property is allotted, shall take that property free of such alienation."
12. Similarly in the case reported as "Muhammad Muzaffar Khan v. Muhammad Yusuf Khan" (PLD 1959 Supreme Court (Pak.) 9) (Full Court Case) it was observed by Mr. Justice SA. Rehman, J. Who wrote the main judgment that:-- "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 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 later 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 acquired from a co-owner, in an undivided Khata, does not become a co-sharer in that Khata."
13. From the critical survey of the case-law we respectfully agree with the principle laid down in Mustafa Khan's case and hold that Mst. Zubedha Begum being out of possession of specific survey number, could only transfer through sale-deed her fractional share in the survey number i,e, 7 Marlas and 4/1-2 Sersaies. The sale-deed to that extent shall stay intact but in respect of rest of the land for having been made in excess of her fractional share, stands cancelled. The High Court in our opinion committed no illegality in passing the impugned order.
' For the reasons stated above, finding no force in this appeal, the same is dismissed without any order as to costs.