SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the judgment of the High Court; dated 8-8-2000, whereby the writ petition filed by the appellants, herein, was dismissed.
2. The brief fat s of the case are that the appellants, herein, filed a writ petition alleging that land comprising Survey No.217, measuring 9 Kanals, 12 Marlas, and Survey No. 572, measuring 11 Kanals. 7 Marlas, situate in Jhanda Baghla, Tehsil Pallandri, was initially entered in the Revenue Record as '
Khalsa' land and has been in their possession since Dogra Regime. However, in the latest settlement, the same was mutated in favour of owners in estate as ' Shamilat Deh'. Respondent No.5 filed an application for the ejectment of the appellants on the ground that the. ' Shamilat Deb' land was in their illegal possession. The Assistant Collector passed the ejectment order against the appellants but on appeal, the same was set aside by the Additional Collector, Pallandri, and the case was remanded for further inquiry. However; the respondents preferred an appeal before the Commissioner who set aside the order of the Collector and restored that of the Assistant Collector.
The appellants herein, filed a revision petition before the Board of Revenue but the same was also rejected. Thereafter, they filed a writ petition in the High Court which was also dismissed on the ground that the appellants, herein, could not prove their old possession and that they could not retain the possession on the alternate ground that as they had become co--sharers in the suit land after its inclusion in ' Shamilat' , they could not be ejected except after the partition of land by metes and bounds.
3. Sardar Iqbal Hussain Khan, Advocate, the learned counsel for the appellants, has contended that the High Court has committed an error in holding that the appellants were not entitled to retain the possession of land in dispute as co sharers in the "Shamilat Deh" land. The learned counsel has argued that in the subsequent settlement, the land in dispute has been included in "Shamilat Deb" and, thus, all the co-owners in the estate are entitled to their shares proportionate to their ownership in village. Thus, he has contended that a co-sharer in possession of a part of "Shamilat Deh" land cannot be ejected therefrom except by regular partition. He has submitted that the High Court was not correct in holding that the appellants should have sought the partition of land in dispute, because it is admitted that they were in the possession of the same prior to the ejectment order passed by the Assistant Collector. He has argued that a co-sharer in "Shamilat Deh" land is entitled to retain his possession without the partition of the same. The learned counsel has contended that the Assistant Collector has passed the ejectment order against the appellants under section 175-A of the Land Revenue Act, which deals with the prevention .Of encroachment of Government land and has no application to, the "Shamilat Deh" land. He has further submitted that the Commissioner Revenue and Board of Revenue have held that irrespective of the question as to whether the land in dispute is "Khalsa" or "Shamilat Deh", the appellants, herein, were liable to be ejected in the instant case. He has contended that neither the Commissioner Revenue nor the Board of Revenue has stated the legal provision under which a co--sharer in "Shamilat Deh" can be ejected therefrom. He has further contended that it is evident from the application submitted by the respondent for the ejectment of the appellants that the appellants were in possession of "Shamilat Deh" land; it has never been his case that the land in possession of the appellants was Crown land.
4. In reply, Mr. Imdad A.I Malik, Advocate, the learned counsel for respondent No.5, has contended that a co-sharer in "Shamilat Deh" land cannot retain the exclusive possession of "Shamilat Deh" land to the detriment of other co-sharers. He has referred to subsection (3) of section 5 of the Azad Jammu and Kashmir Grant of Khalsa Waste Land as Shamilat . Deh Act, 1966 (hereinafter shall be called as Shamilat Deh Act, 1966) and has contended that out of "Shamilat Deh" 20% area is to be reserved' for common purpose of the villagers which would be under the management of Union Council. He has submitted that as the appellants are in possession of the area which was reserved for common purpose of villagers, they were liable to be ejected under subsection (9) of section 5 of the Shamilat Deh Act, 1966. He has contended that even if the ejectment order could not be passed under section 175-A of the Land Revenue Act that could not justify to annul the order of ejectment of the appellants provided the same can be justified in view of the aforesaid provisions of Shamilat Deh Act, 1966. The learned counsel has also argued that even a co-sharer in possession of joint holding in excess of his share can be ejected. He has cited following authorities in support of his contentions: PLD 1954 Peshawar 80 it has been observed that the area of dried water channel cannot be used by a co-sharer to the exclusion of others. It was further observed that the sites which are reserved by all the villagers for common purpose by mutual consent, such as graveyards, water channels, tanks and public ways etc., cannot be used by a co-sharer to the exclusion of the other co-sharers.
1989 SCMR 130, it has been held that a co-sharer in possession of joint land cannot change its nature unless partition takes place by metes and bounds. Thus, a decree for perpetual injunction was passed against the co-sharer who was in possession of joint land as a result of private partition, restraining him to appropriate his share according to his choice.
5. Raja Shiraz Kayani, the learned Advocate-General, supported the contentions advanced on behalf of the learned counsel for the appellants.
6. We have given due consideration to the arguments raised at the Bar. It may be observed that in the application, dated 14-6-1993 made by Ghulam-ul-Haq, respondent No.5, it is clearly stated that the land in dispute was "Shamilat Deh". Even the learned counsel for respondent No.5 has conceded that in fact the land in dispute was included in ' Shamilat Deh' much earlier, than the ejectment order which was passed by the Assistant. Collector in 1996. Thus, there is no dispute between the parties that the land which is in possession of the appellants is "Shamilat Deh" land.
There is hardly any quarrel with the proposition that all the owners in the estate are co-sharers in the "Shamilat Deh" land. Thus, a co-sharer in "Shamilat Deh" land who is in possession of the same in excess of his fractional share cannot be ejected therefrom without the partition of the same by metes and bound. A reference may be made to the cases reported as Ahmed Miaji v. Eakub A.I Munshi PLD 1961 Dacca 259, Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9, Feroze v: Sher PLD 1985, SC 254 and Muhammad Zubair v. Syed Zakir Hussain Shah 1996 CLC 275 in support of aforesaid view. Mr. Lmdad A.I Malik, the learned counsel for respondent No.5, has lost sight of the fact that it has never been the case of the respondent that the land-in dispute which was in possession of the appellants was reserved for common purpose of the village as stipulated under section 5(3) of the Shamilat Deh Act, 1966 which postulates that when rights of "Shamilat Deh" land are granted, 20% area is to be reserved for common purpose of the villagers, which will be managed by the Union Council. Obviously, this is a new stand which the learned counsel has taken to justify the ejectment order passed against the appellants. It is well-settled, principle) of law that a party cannot be permitted to take a different stand from one which such party has originally taken; there is no evidence either to the effect that "Shamilat Deh" land which is in possession of the appellants was reserved for common purpose of villagers as stipulated under subsection (3) of section 5 of the said Act. Thus, the contention of the learned counsel for the respondent that the appellants were liable to be ejected under subsection (9) of section 5 is an afterthought which does not help the respondent, especially so when the ejectment order was not made under the aforesaid provisions. As discussed above, the authorities cited by the learned counsel for the respondent, referred to above, are distinguishable and have no application to the present case. It may also be observed here that the learned counsel for the respondent has frankly conceded that there is no provision other than one referred to by him for the ejectment of the co- sharer from the "Shamilat Deh" land which is in his exclusive possession.