MUHAMMAD Versus ATTA MUHAMMAD

Upon the death of Bhawana, his holding measuring 23351 kanals of agricultural land devolved upon his four sons, Sher Bahadur, Sultan Mahmood, Jalal and Ghulam Muhammad in equal shares. Sher Bahadur (respondent No. 5) sold the suit land, measuring 121 kanals comprised Khasra No. 3483, Khatauni No. 641, Khata No. 189, as per Jamabandi for the year 1959-60, in favour of Muhammad son of Hayat, the appellant. The respondents-plaintiffs, Ata Muhammad son of Ghulam Muhammad, Dost Muhammad and Zil Muhammad sons of Jalal, brought a suit for permanent injunction restraining the appellant from interfering with their posses sion on the ground that Sher Bahadur is owner of 1/4th share in the land and was entitled to sell his entire area and the decree obtained and the mutation based thereon in excess of 1/4 share is void and inoperative as against their rights. The basis of the claim was that the plaintiffs and Sher Bahadur were co-sharers of the parcel of land in question and Sher Bahadur being only a co-sharer to the extent of 1/4th, the sale of the entire Khasra number by him in favour of the appellant and thereafter on the rejection of mutation by the revenue authorities the collusive decree obtained by the appellant as against Sher Bahadur and then the subsequent mutation attested were inoperative and ineffective against the rights of the plaintiffs. Muhammad Hayat (respondent No. 4), successor-in-interest of Sultan Mahmood, was impleaded as a defendant on the ground that he has not been able to join the plaintiffs and as his rights were akin to those of the plaintiffs, he has been arrayed amongst the defendants. Sher Bahadur pleaded private partition of the property inherited by the parties from Bhawana and it was urged on that basis that he having been in exclusive cultivating possession of the said Khasra number, the sale was valid and the plaintiffs had no cause of action. The learned trial Judge rejected the plea of private partition and further finding that Sher Bahadur being not entitled to sell more than 1/4th of the property, the sale transaction in excess of his title was void and inoperative against the rights of the plaintiffs, decreed the suit. The appellant has remained unsuccessful before the first Court of appeal.

2. Learned counsel for the appellant in this second appeal has not been able to point out any misreading of evidence or misconstruction of the revenue record in respect of the finding as to non-proof of private partition amongst the various heirs of Bhawana. Against this background he has, however, argued that even if it be held that Sher Bahadur was entitled to transfer only 1/4th share in the Khasra number in question the vendee (the appellant) became a co-sharer to the extent of 1/4th (with right of possession of whole Khasra) alongwith the plaintiffs-nothing less nothing more. The argument proceeds on the ground that because Sher Bahadur was in exclusive possession of the parcel of land in suit as per entries of the Jamabandi and of which there is no rebuttal on the record, the vendee would step into the shoes of the vendor and would be entitled to retain possession of the entire Khasra number as a co-sharer in place of Sher Bahadur till such time the joint Khata is partitioned. Reference has been invited to the following terse observations in Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (P L D 1959 S C (Pak.) 9)

.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 latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers . . . . . . ."

According to learned counsel it is just a matter of substitution of the name of the appellant in place of Sher Bahadur and as such the appellant will be entitled to retain- possession of the entire Khasra number as his predecessor-in-interest was holding exclusive possession before sale. Learned counsel for the opposite side has not been able to successful) contend to the contrary. The contention is in accord with the precedent case and I find force in it. The result would be that although the sale transaction by Sher Bahadur in favour of the appellant has to be, held valid only to the extent of 1/4th share, the decree for permanent injunction is not maintainable because the appellant is entitled to retain possession of the entire Khasra number as a co-sharer in lace of Sher Bahadur and the status quo ante has to continue till such time the joint khata is partitioned. On this view of the matter the question arises as to what relief are the plaintiffs entitled. Ordinarily for purposes of determining the relief asked for, the whole of the plaint must be looked into and the substance rather than the form is to be examined. The rule with regard to the nature of the general or other relief which a plaintiff may have has been laid down by Lord Eldon in Heirn v. Mill (13 Ves. 119) that if the bill, contains charges, putting facts in issue that are material, the plaintiff is entitled to the relief, which those facts will sustain under the general prayer; but he cannot desert specific relief prayed; and under the general prayer ask specific relief of another description unless the facts and circumstances, charged by the Bill will, consistently with the rules of the Court, maintain that relief. This rule has been quoted in Cockerell v. Diskens ((1840) 2 M I A 353) with approval.

3. In the Instant case, on the pleadings and facts proved, the relief for permanent injunction in respect of possession of the respondents in the form prayed for cannot be granted. However, the foundation o the claim that Sher Bahadur was entitled to sell only 1/4th share in the Khasra in question stands proved and the Court may grant relief in respect of claim arising out of pleadings without there being any express prayer for the same in order to avoid multiplicity of litigation (see M. J. McGrath v. (Mrs.) M. K. McGrath (P L D 1952 Lah. 533) and The Chef Administrator of Auqaf, west Pakistan, Lahore v. Pir Rashid-ud-Daula and others (P L D 1961 Lah. 993). I, while allowing the appeal partly, as indicated above, modify the decree of the Courts below so as to read that the sale in favour of the appellant by Sher Bahadur is only to the extent of 1/4th share and that the decree obtained by the appellant or the mutation based thereon in excess of 1/4th is invalid and inoperative as against the rights and interests of the plaintiffs respondents and the appellant will be entitled to retain possession of the suit land (as a co-sharer to the extent of 1/4th share till such tine the joint khata is partitioned. The parties are left to bear their own costs.

S. A. H. Appeal partly allowed.