MUHAMMAD AKHTAR SHABBIR, J.--- This civil revision has been filed to call question the judgment and decree dated 18.1.1984 passed by the District Judge, Rahimyar Khan, whereby, the judgment and decree dated 20.7.1982 passed by Civil Judge, Khanpur dismissing the suit of the plaintiff/respondent was reversed and the suit was decreed.
2. The facts giving rise to the present revision petition are that plaintiff Muhammad Arif/respondent herein had insXituted a suit for possession through pre-emption claiming to be the co- sharer in the property in dispute situated in Khata No. 1/1 rectangle No. 396/6 Mauza Thakal, Tehsil Khanpur District Rahimyar- Khan. The suit was contested by the defendant/petitioner who filed his written statement denying the averments of the pliant raised some preliminary objections as well. From the factual controversies appearing on the pleadings of the parties, the trial led to frame the following issues:-
(1) Whether the plaintiff has got a superior right of pre- emption as against the vendee-defendant?
(2) Whether the sum of Rs.35000/- was actually paid or fixed in good faith as the sale price of the suit land?
(3) If the above issue is not proved, what was market value Of the suit land at the time of sale?
(4) Whether the defendant is entitled to recover Rs.2275/- from the . Plaintiff allegedly spent by him on the registration of the sale-deeds?
(5) Whether the suit is correctly valued for the purpose of jurisdiction?
(6) Relief.
After recording and appreciating the evidence of the parties pro and contra, the Trial Court vide its judgment and decree 20.7.1982 dismissed the suit of the plaintiff/respondent. Feeling aggrieved the plaintiff/respondent challenged the judgment and decree of the Trial Court before the District Judge, who, vide the impugned judgment and decree, accepted the appeal, set aside the findings of the Trial Court and decreed the suit of the plaintiff/respondent. Hence, this civil revision.
3. Learned counsel for the petitioner contends that Mst. Noor Khatoon was owner of 38 kanals of agricultural land in khata. No. 1/1 and out of this land she sold Killas Nos. 3 and 4 measuring 16 Kanals to Muhammad Arif respondent vide registered sale-deed dated 15.11.1976, whereafter she remained owner of only 22 kanals of land. She alienated this remaining land in favour of the vendees-the present petitioners on 10.12.1977 through a registered sale-deed. The learned counsel further contended that when a sole owner out of his holding sells specific killa numbers, it would mean that the property has automatically been partitioned. Since Arif was owner of Killa Nos. 3 and 4, therefore, he was not a co-sharer in the remaining land of Mst. Noor Khatoon. He relies on Sher Singh Vs. Nand Lal (A.I.R. 1947 Lahore 184), Mardan Shah Vs. Shah Nazar Khan (PLD 1970 SC 245), Ali Muhammad Vs. Shera and another (1987 SCM R 207), Nawab Din and 2 others Vs. Hassan Muhammad (1987 CLC 1656), Ghulam Yasin Vs. Muhammad Luqman (PLJ 1989 Lahore 538) and Mir Alam Khan Vs. Muhammad Ji alias Aslam and another (PLJ 1984 Peshawar 10).
4. On the other hand, learned counsel for the respondents vehemently opposed the arguments of the learned counsel for the petitioner contending that Arif after purchase of 16 kanals of land from Mst. Noor Khatoon became co-sharer in the joint khata because after the purchase of land, the two persons became joint owners. He relies on Illahi Bakhsh and others Vs. Fazalur Rahman and others (1993 SCM R 1079). He further contended that the partition of the property has never taken place and there, is no an iota of evidence on record to establish this factum, meaning thereby that the property was jointly owned by Muhammad Arif and Mst. Noor Khatoon and subsequently by Muhammad Arif and Muhammad Aziz, the petitioner. He further relies on Muhammad Muzaffar Khan Vs. Muhammad Yusuf Khan (PLD 1959 SC 9), Muhammad Sharif and 6 others Vs. Shabbir Hussain and 2 others (1986 CLC 2672) and Faqir Shah and another Vs. Muhammad Rafiq and 6 others (PLD 1992 SC 834).
5. I have heard the arguments of the learned counsel for the parties and perused the record.
6. There is no cavil with the fact that as per record-of- rights pertaining to the year 1974-75, Mst.
Noor Khatoon, were of Imam Bakhsh was owner of 38 kanals of land in Khata No. 1/1 rectangle No. 397/10-3-4, 397/6-A, 7, 8 and 8-A. The vendor has sold her two acres bearing Khasra Nos. 3 and 4 measuring 16 kanals situated in rectangle No. 397/10 in favour of Muhammad Arif and thereafter about a year or so the vendor alienated her remaining whole property in rectangle No. 397/6 measuring 22 kanals in favour of vendee-present petitioners. The vendor was the sole owner of the abovesaid property. Since she had sold her specific khasra numbers prior to the sale in dispute in favour of Muhammad Arif, the respondent vide a registered sale-deed she has not sold specific share out of her property, it would mean that after the disposal of these two khasra numbers in favour of Muhammad Arif, she remained the owner of other property in rectangle No. 397/6. She was the sole-owner of this property and Muhammad Arif never became the sharer of the remaining land of the petitioner.
7. The word ' co-sharer' denotes a person who holds an existing joint interest whether absolute or limited in an undivided property. Co-sharer signifies persons owning a sharer or share in whole of the property or property of which or other sharers were subject to sale. The khata belonging to. M,st.
Noor Khatoon was not a joint khata as no other person was co-sharer or co-owner of the property with Mst. Noor Khatoon. The co-sharer what even the interest of his in the joint property may be is a co-owner in every inch of that property to the extent of his share until partition takes place which he can claim as a matter of right. It was held in the case of Mardan Shah Vs. Shah Nazar Khan (PLD 1970 SC 245) that "a co-sharer is not statutorily defined, but its legal concept is quite well-settled, namely, that a co-sharer, whatever the extent of his right in the joint property, is a co-owner in every inch of that property to the extent of his share." In the case of Rajindra Singh Vs. Umrao Singh and others (AIR 1925 Lahore 223), a Division Bench of the Lahore High Court in examining the right of a preemptor on the basis of co-shareship, has observed as follows:- "A person who is a part-owner of one of the walls of a house but has no right of any kin any other part of the house whatsoever, is not entitled to call himself a co-sharer in the whole property."
The respondent/plaintiff had earlier purchased specific killa numbers and not undivided share from sole proprietor would not be considered a co-sharer and that the plea that number of Khata from which land was' purchased has not been partitioned and the plaintiff/respondent was a co- sharer with vendor Mst. Noor Khatoon, as earlier observed that Mst. Noor Khatoon vendor has not alienated unspecified or defined share in favour of preemptor/plaintiff-respondent herein, so he would.Not be construed a co-sharer of the property in dispute with Mst. Noor Khatoon. This argument is strengthened by the rule laid down in the case of Ali Muhammad Vs. Shera and another (1987 SCM R 207). The same principle was followed by this Court in the case of Nawab Din and 2 others Vs. Hassan Muhammad (1987 CLC 1656), observing that "sole proprietor of a Khata with no other person to share Khata with him sold, not a definite share in the Khata but some specific wield numbers out of it, first to the pre-emptor and then to vendee-defendant, the sale of specific numbers of field to pre-emptor would not make him a co-sharer in the Khata with that person." This principle was further followed in case of Ghulam Yasin Vs. Muhammad Lukman (PLJ 1989 Lahore 538).
8. The cases referred by the learned counsel for the respondent are not applicable to the facts of this case. Learned counsel has placed reliance on the case of Muhammad Muzaffar Khan Vs. Muhammad Yusuf Khan (PLO 1959 SC 9), wherein it was observed that the vendee of 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 latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers". The dictum laid down in this case was also followed in Faqir Shah's case (PLD 1992 SC 834). Although these above-referred cases are distinguishable. In these cases the vendor of the joint khata with others had sold specific numbers under his possession to the vendee. In these cases vendor was not sole proprietor of the khata. He was joint holder with other co-sharers.
9. While in the present case, the vendor was the sole proprietor of the khata and she sold specific Khasra numbers in favour of the pre-emptor/respondent and by purchasing of these specific khasra numbers, the plaintiff would not be construed to be a co-sharer in the remaining land which also falls in separate rectangle and specific khasra numbers. Thus, the cases referred by the learned counsel for the respondent are in no way applicable to the facts of the present case and helpful to the respondent.
10. It is judicial dignity to follow the dictum laid down by the apex Court of the country and the findings of the highest Court of the country are binding on all the Courts subordinate to it, provided the issue resolved by the Supreme Court and the principles settled are fully applicable to the facts of the case in hand. The principles settled in Mardan Shah's case (PLD 1970 SC 245) supra are - attracted to the present case, therefore, applying the principle settled by the apex Court of the country, I have no hesitation in observing that the lower Appellate Court has misconstrued and misapplied the law laid down by the superior Courts in the cases referred in its judgment. Hence, the Appellate Court has committed an illegality while passing the impugned judgment and decree which suffers from infirmity and calls for interference in the exercise of revisional jurisdiction of this Court.
For the foregoing reasons, this revision petition is accepted. The judgment and decree dated 18.1.1984 passed by the District Judge, Rahimyar Khan is set aside and that of the Trial Court dated 20.7.1982 is restored, with the result that suit of the plaintiff/respondent stands dismissed, with no order as to costs.