Law:

Section:

(a) Constitution of Pakistan (1973)--- Art. 185(3)--Pre-emption-Leave to appeal granted to consider contention raised by petitioner that Courts below were wholly wrong in their view that what respondent had sold were their, possessory rights as distinct from proprietary rights as co-sharer and that mutations related to totality of rights in area actually transferred which was in excess of due share of transferors in joint Khata and there being no other joint holding of parties concerned petitioner was entitled in law to a declaration he had sought in suit. (b) Co-sharer -- Co-sharer, held, could sell his possessory right in land and vendee from him would be clothed with same rights as vendor had in property-Vendee would be entitled to retain possession till such time as an actual partition took place between co-sharers subject to the co-sharer's obtaining a declaration that possession of vendee was also his or seeking dispossession of vendee through any other remedy under law. Saad Ullah v. Ibrahim A I R 1925 Lah. 518 ; Muhammad Amin v. Karam Das A I R 1924-Lah. 293 ; Sukh Dev v. Parsi A I R 1940 Lah. 473 and Muhammad Muzaffar Khan v. Muhammad Yusuf Khan P L D 1959 S C 9 quoted. JUDGMENT M. S. H. QURAISHI, J.-This appeal by leave of the Court arises out of a suit instituted by appellant Feroz, a co-sharer in land bearing Khasras Nos. 73 and 74 in Khata No. 59, measuring to all 12 Kanals 11 Marlas, situate in village Ghitti, Tehsil Haripur, District Hazara. His share was 32/50, the other co-sharers being Fazal Ahmad and Mst. Muhammad Jan to the extent of 9/50 share each. The latter co-sharers sold the entire land of Khasra No. 74 to Sher respondent by Mutation No. 486 of 18-7-1963. Later, Fazal Ahmad sold his 9/50 share in Khasra No. 73 by Mutation No. 533 of 23-10-1964. Mst. Muhammad Jan having died was succeeded by two sons and two daughters. Gohar kehman, one of her sons, exchanged his share of 3/50 in the two Khasra numbers, vide Mutation No. 553, dated 16-12-1964. The appellant challenged Mutations Nos. 533 and 553 in a suit which he filed for a declaration that Fazal Ahmad and Mst. Muhammad Jan having already alienated their share in the two fields under…

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