' RAJA MUHAMMAD KHAN, J.-Appellants Mustafa Khan and Mst. Moti Begum are co-sharers with Walayat Khan vendor (since dead) in the land in dispute and also in other lands. Walayat Khan on 5th June, 1938 transferred 28 kanals and 11 marla of land falling within specific Survey Nos, 160, 165, 165 min. And 183 in favour of Muhammad Khan and Mahmood Khan respondents. No partition was ever effected between the co-sharers prior to or after this sale.
2. Mustafa Khan and Mn. Moti Begum appellants (plaintiffs), in the Court of Sub-Judge, Kotli, brought a declaratory suit with possession, claiming that the sale, being in excess of the share of Walayat Khan in the specific field numbers, was ineffective, and inoperative to the extent of their rights in this land. The appellants' claim was controverted by the respondents on all grounds.
3. The learned Sub-Judge after having found the claim of the appellants to be genuine, passed a declaratory decree for joint possession to the extent of their share measuring 12 kanals and 13 marks. The learned District Judge, on appeal by the respondents, reversed the findiog of the trial Court and dismissed the suit. The plaintiffs-appellants, then went in second appeal before the High Court but the finding of the learned District Judge was maintained by the learned Single Judge of the High Court vkle his judgment and order dated 21-5-1974.
4. The decision of the learned Single Judge was challenged by way of Letters Patent Appeal before the Division Bench of the High Court. The appeal still awaited decision when, by operation of law, it stood transferred to the Judicial Board as it was so named then and later on it was transferred to this Court. This is how we are seized of this appeal.
5. In this case, the first point which calls for decision is whether Walayat Khan vendor had the title in the whole joint property to the extent of the land sold. For this we may refer to the statement of Muhammad Khan Patwari, a witness examined by the appellants, to the effect that Walayat Khan owned 76 kanals and 13 marks of land by inheritance. Besides this, other land measuring 19 kanals and 3 marks also fell to his share as an heir of one Bala. Thus his share in the joint property comes to 95 kanals and 16 marks. Thus it is fully established that the land sold by Walayat Khan being 28 kanals and 8 marks only, is within his share in the joint property.
6. The next point to be determined is whether Walayat Khan at the time of sale was in sole and exclusive possession of this land. The adjudication of the point is necessary as land under specific numbers, as will be seen hereinafter, could be validly sold by Walayat Khan, if it is proved that he was in exclusive possession of the land under these specific survey numbers at the time of sale. On this point, we have the statements of Muhammad Khan Patwari and Faqar Din (P. Ws.). From their statement it appears that the co-sharers were enjoying the possession in severalty of specific lama numbers and at the time of the sale-deed, Walayat Khan vendor was in exclusive possession of the land transferred. The learned counsel for the appellants being alive to the import of the statements of his own witnesses, had not, quite understandably, seriously contested this finding recorded by the learned District Judge and concurred by the learned Single Judge in the High Court. He, however, attacked the finding of both the Courts, on the ground that a co-sharer, even if he is in possession of a specific survey number or plot is incompetent to alienate or transfer the same in excess of his entitlement in the specified survey number or plot without the consent of the other co-sharers. He thus challenges the finding of the learned Judge In the High Court that a co- sharer in exclusive possession of a certain piece of land is competent to dispose of the whole land under his possession.
7. The point raised has been subject of close examination in the pass before the superior Courts of the Sub-continent and we have string of authorities on the subject.
8. After careful examination of the law on the point and the facts of this case, we are of the view that a co-sharer 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 over all entitlement of the share in the whole land. Of course the vendee's' right 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.
9. For this we may refer to AIR 1925 Lab.
518. In that case Me. Justice Martimeau, J. Was confronted with the question whether a co-sharer in a Shamilat land on a transfer made by another co-sharer of land under his sole and exclusive possession, can prevent transferee from construction of building on such land. The learned Judge after discussing all aspects of the case answered the preposition in affirmative and stated that :- "Although Allandiya and Kimun not being the sole owners of the land could not sell the full proprietary rights, the sale by them nevertheless holds good to the extent of conveying the rights which they could sell Including the right to retain possession till partition. It has been held in Muhammad Amin v. Karam Das, in which various rulings on the point have been considered, that when a co.Sharer has been long in possession of a portion of the Shamilat land no other co-sharer can oust him therefrom or even get joint possession with him as long as a partition of the Shamilat does not take place. The plaintiff has the same rights in the land that his predecessors in- title had. He is entitled to undisturbed possession of the land as long as the Shamilat is not partitioned, and the defendants have no right to prevent him from building on the land."
' A similar point came up for decision before Lahore High Court in AIR 1938 Lah.
465. In that case, the point to be determined was whether, in a case of joint "Khata" where one co- sharer had been in exclusive possession for a long time of a portion of the joint land not exceeding his share in the entire holding, another co-sharer can dispossess him against his will from such land. Mr. Justice Tek Chand, J. Relying on AIR 1924 Lah. 293 and AIR 1925 Lah. 518 observed : "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."
' Again an identical question came for consideration before the Oudh High Court in AIR 1939 Oadh
243. In that case Plot No, 2807 was jointly owned by Baldeo Singh and Ambika Prasad, alongwith 80 other defendants. They (Baldeo Singh and Ambika Prasad) had given two leases in respect of this plot one on 11th of October, 1932 and the other on the 15th of November, 1932 In favour of defendant No,
1. The leases were made subject of a regular suit. But it was held that Baldeo Singh and Ambika Prasad being in exclusive possession of the land at the time of the lease were competent to lease it out to defendant No, 1 alongwith possession. Mr. Justice Radha Krishna, held that :- 'The question, therefore is whether a co-sharer, who has been in exclusive possession of a certain plot of land without let or hindrance by other co-sharers, can transfer the plot to a third person subject to the right of other co-sharers to obtain a partition of the village. The law on the point in Oudh seems to me to be well settled. In 21 0 C 214 Lindsay, J. C. (later Lindsay, J.) held that the general rule regarding the enjoyment of joint property by the co-sharers is that one co-sharer has no right to appropriate specific portions of such property to the exclusion of his co-sharers except by means of a lawful partition. This rule, however, is subject to the qualification that where one co- sharer has been for a long time in peaceful possession of a portion of the joint property without hindrance or opposition by his co-owners the latter are not entitled to eject him except by means of a partition."
' In the case AIR 1927 Oudh 467 and AIR 1921 Oudh 106 were relied upon.
' The question of entitlement of a co-sharer to transfer the specific land under his possession was once again adjudicated in a Division Bench case in AIR. 1940 Lab.
473. The Bench consisted of Mr. Justice Tat Chand and Mr. Justice Bhide Judges. The learned Judge Bhide who wrote the principal judgment in the case, after discussing the case-law on the point, observed r- "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 therein 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 property by co-sharers."
' In PLD 1955 Pesh. 26, a similar question was posed to be determined. It was held by Mr. Justice Muhammad Shaft, 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."
' In PLD 1959 SC (Pak.) 9 (Full Court case), it was observed by Mr. Justice S. A. Rahman, J. Who wrote the main judgment that : "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."
8. Looked from another angle we come to the same conclusion. It is conclusively established that the possession of the vendor in the specifi field numbers was due to family arrangement. It is true that such a arrangement does not extinguish the title of other co-sharers, but so far a the factum of such a possession and sale of the specific field numbers I concerned, it certainly debars other co-sharers to get back such possessio or challenge the sale. This is, of course, subject to adjustment at the time of partition as would have been the case if the vendor had not sold th land.
Section 115 of the Evidence Act comes to the aid of vendee in such a case. Mr. Justice Monir, formerly Chief Justice of Pakistan in his Principles and Digest of the Law of Evidence, Vol. II, Pakistan Edition, page 1296 says : "Family arrangements are arrangements between the members of a family for the preservation of its peace or property. The principles upon which such arrangements are enforced in England are stated in the case of Williams v. Williams. Such arrangements are constantly entered into in this country, and, where they have been acted upon and acquiesced In the Court will not look so much to the adequacy of the consideration as to the motives and conduct of the parties. In a settlement of a doubtful right truth may be on either side, but the essential effect of the settlement is that further trouble or investigation is put an end to and a settlement is concluded to restore harmony.
The consideration for such a settlement is the mutual promise made, or forbearance shown, by one party to the other. In the absence of fraud or undue influence, it is not, therefore, open to either party to resile from it afterwards, and the settlement is binding not only on the parties but on their sons and descendants. A family settlement is binding, even though a limited owner is a party to it.
Where parties settle a family dispute amicably, take a share of the property, enter into possession, and subsequently sell or mortgage the items allotted to them, they are estopped from questioning the settlement."
9. AIR 1924 All. 63 may be referred as an authority on point. In that case a p ion deliberately by his own conduct got the name of another person who nad no right of inheritance to a property entered as owner of such property at the time of mutation. Later on he challenged the mutation. It was held by the Division Bench of the Court that he was estopped from subsequently pleading that he was the owner of the whole property.
10. In view of this we hold that the appellants' suit Is otherwise to hit by the doctrine of estoppel as because of the family arrangement they are precluded from claiming their shares in the specific field numbers in possession of the vendor.
' The net result of the above discussion is that on the basis of the legal position above, we find no flaw in a sale by a co-sharer in exclusive possession of specific field numbers provided such a sale does not exceed vendor's shall in the over all land. There being no cogent reason to interfere with the decision of the appellate Courts, we dismiss the appeal. In view of the complicated questions of law involved, we pass no order as to costs.