Land Co-sharing in Pakistan (Legal Aspects)

Legal Aspects pertaining to Co-Sharer of Land in Pakistan

Possession of one co-sharer on every inch of land is for the benefit of other co-sharers and if the mutation had been attested in favour of some of the co-sharers, that would not extinguish the title of the other co-sharers. Shahro and others v. Mst. Fatima and others PLD 1998 SC 1512 rel PLD 2003 Lahore 186

Remedy against co-sharer in possession—Person acquiring possession of immovable property at the very inception as co-owner could not be dispossessed from the same without proper partition and a decree/order of a competent Court in that regard. 2002 MLD 434

Co-sharer–Case poof–High Court declaring that petitions suit should have been decreed to extent f his share in suit land which was in his possession as “Hissadar” through family arrangement which is always subject to regular partition–Held : No infirmity in conclusion reached by learned High Court which is based on proper appraisal f revenue record placed on file–Leave to appeal refused. PLJ 1997 SC 985

Declaration that respondents being co-sharers, were owners–Suit for–Dismissal of suit–Suit decreed in appeal and affirmed by High Court–Challenge to–First Appellate Court and learned Judge in Chambers did not agree with conclusion of Trial Court mainly for reason that order dated 5.4.1938 whereby share of land of respondents’ predecessor was resumed, was void order having been passed without affording him on opportunity of hearing–Predecessor of respondents, though aware, never challenged validity of said order and entry in revenue record remained unchallenged for over 45 years although he remained alive for 40 years after passing of said order–No objection was taken by their predecessor over successive transfers of half share each to legal heirs of his two brothers to his exclusion–He also did not raise any objection when land in dispute was transferred by Government to his two brothers in equal share in 1966–Held: Conclusions of First Appellate Court and learned Judge in Chambers that order dated 5.4.1938 was void, are not sustainable in law. PLJ 1994 SC 265

Declaration–Suit for–Suit and appeal dismissed by trial Court and by appellate Court–Challenge to–1f share of respondent No.1 has been increased from L/10 to 2/10 share, then there must be some explanation for that as to how it so happened–Record of case is destitute of material to explain this enigmatic position–Held: Question as to how share of respondent No.1 has increased without affecting shares of other co-owners, must be answered positively and share of each share-holder must also be determined to ensure extent of share of present, petitioner in terms of measurement of land–Case remand. PLJ 1994 Peshawar 57

Pre-emption–Suit for–Suit decreed and decree affirmed in appeal–Challenge to–Whether respondent No.1 was not co-sharer in disputed land–Question of–Disputed property was sold by respondent No.2 out of joint khata which remained subject to pre-emption notwithstanding its partition through consolidation proceedings–Consolidation operations do not disturb pre-existing rights–After decree is passed in favour of pre-emptor, he can chase land allotted to judgment-debtor during consolidation proceedings in lieu of pre-empted land–Held: Respondent No.1 became co-owner in joint khata immediately on death of husband of respondent No.2 which had taken place before sale of disputed land, and mere fact that he was not recorded as co-owner in revenue record did not make any difference–Appeal dismissed. PLJ 1994 Lahore 293 PLD 1973 Lahore 637 and PLD 1967 Lahore 1171 rel.

Suit for possession by predecessor-in-interest of respondents–Suit decreed by trial court but dismissed by first appellate court–Dismissal order set aside by High Court–Challenge to–Additional District Judge simply dismissed suit filed by predecessor-in-interest of respondents on ground that he had not impleaded other co-sharers as defendants in his suit–No doubt that suit land is an undivided property and donor alienated his undivided share on basis of gift deed and sale-deeds–Held :Suit filed by predecessor-in-interest of respondents could not have been dismissed and proper course would have been to grant decree for joint possession in his favour–Appeal dismissed. PLJ 1996 SC (AJK) 165

Costs- —-Ejectment application–Closure of petitioner’s evidence for non-payment of costs–Challenge to–Rent Controller is free to evolve his own procedure for disposal of eviction petition and can follow enabling provisions of C.P.C. or principles contained therein–However, being a persona designata, governed by a special statute, Rent Controller had no jurisdiction to impose costs while allowing petitioner’s application for production of additional evidence–Held: Part of impugned order imposing costs, is clearly without jurisdiction and hence a nullity in eye of law–Petition accepted. PLJ 1994 Lahore 96

Recovery of money–Suit for–Closing of evidence–High Court providing one opportunity to produce evidence subject to payment of exemplary costs–Challenge to–Power of awarding exemplary costs purports to have been exercised either under Section 35 or 35-A of C.P.C., but such power is not available to High Court–Under Section 35 C.P.C., only actual costs incurred by a litigant can be awarded and counsel fee could be allowed if certificate to that effect is given by counsel–No such certificate was given by counsel in this case–It is laid down in Order XVII Rule 1(2) of C.P.C. that while granting time to parties, court may make such orders as it thinks fit with respect to costs–Held: Costs have been fixed after keeping in view previous adjournments and delay caused due to belated filing of revision petition which are relevant, but costs of Rs. 12,000/- seems to be excessive–Costs reduced to Rs. 3,000/- PLJ 1996 SC (AJK) 25

Co-Sharer–Interest and Possession to joint property–Whether a co-sharer is entitled to evict a trespasser from whole of it, without impleading all co-sharer–Question of–Since a co-sharer’s interest and possession extends to entire joint property, he is entitled to evict a trespasser from whole of it–Co-sharer is undoubtedly entitled to maintain a suit for ejectment against trespasser without impleading all co-sharer. PLJ 1998 Peshawar 166

It was contended by learned counsel for respondents that by their absence from partition proceedings, petitioners had forfeited willingly their rights to question validity of order passed by A.C–Even if petitioners were absent in partition proceedings, any mode of partition prepared by Revenue Officer Halqa was appealable within 30 days by any of aggrieved co-sharer–Absence of co-sharers from partition proceedings cannot in any way absolve Revenue Officer Halqa from his laid down duty–Order of AC was, therefore, patently bad in law whereby he allowed partition of land on basis of wandas prepared by respondents–District Collector and Additional Commissioner, therefore, fell in error by upholding order which was legally infirm–Orders of D.C/Collector and Additional Commissioner are, therefore, set aside and case is remanded to A.0 for decision afresh within two months after hearing parties. PLJ 2001 Revenue 62

Joint Khata–Co-sharer exchanged land from joint khata with stranger–Effect–Co-sharer in possession of a portion can transfer that portion subject to adjustment of the rights of other co-sharers therein at the time of partition–Other co-sharer’s rights would be sufficiently safeguarded if they are granted decree by giving them declaration that provisions of transferee in lands in question would be that of co-sharers subject to adjustment.     PLJ 2002 Lahore 1335

Possession of one co-sharer on every inch of land is for the benefit of other co-shares–Where mutation had been attested in favour of some of co-sharer, same would not extinguish title of other co-sharers. PLJ 2003 Lahore 40

Possession of one the co-sharer to benefit of all co-sharers PLJ 2002 Lahore 1770

Possession of some of co-sharers being joint would inure for the benefit of all co-sharers.     PLJ 2002 Lahore 1204

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 share or share in whole of property or property of which or other sharers were subject to sale–Co-sharer whatever interest of his in joint property may be is a co-owner in every inch of that property to extent of his share until partition takes place which he can claim as a matter of right. PLJ 2001 Lahore 564

Co-sharer in exclusive possession of a specific portion of a joint property cannot alienate, transfer or change the same unless a regular partition takes place between the co-sharers. PLJ 2004 Lahore 971

Co-sharer is always deemed to be in possession of land jointly owned by cosharers—Suit filed by plaintiff was thus, neither hit by provisions of S. 42 of Specific Relief Act nor by provisions of Limitation Act 1908–Trial Court by misreading evidence on record had non-suited plaintiffs–Appellate Court had rectified such error by decreeing plaintiffs suit–No illegality or irregularity was committed by Appellate Court so as to justify interference in revisional Jurisdiction.           PLJ 2003 Lahore 791

Co-sharer–A co-sharer in a joint immovable property is deemed to be interested in every inch of such property and cannot be allowed in’ a manner, which constitutes an invasion on the rights of other co-sharers. PLJ 2004 Lahore 971

Co-sharer–A co-sharer in possession of a portion of joint property cannot change nature of property in his possession unless partition takes place by metes & bounds. PLJ 2004 Lahore 971

Co-sharer–Persons purchasing land from a co-sharer do not stand in a better position than that of their vendor and such sale would always be subject to adjustment at time of partition. PLJ 2004 Lahore 971

Dispossession–Co-sharer when dispossessed has two remedies; one, a suit for separate possession by partition and second, suit in accordance with terms of S. 9 of Specific Relief Act, 1877. PLJ 2004 Lahore 369

Entitlement–Each co-sharer in owner in every part of joint holdings to the extent of his entitlement–Any co-sharer cannot be permitted to change character of land to the exclusion of other co-sharers without resort to some lawful partition proceedings. PLJ 2004 Lahore 943

Plaintiffs had purchased land in question, from co-sharer who was in exclusive possession of same and to the extent of his share in joint Khata–Co-sharer can validly transfer his share in joint Khata and can lawfully deliver possession of specific piece of land in his possession to vendee–Vendee being in actual physical possession of specific piece of land, had validly alienated same in favour of respondent.      PLJ 2003 Lahore 798

Specific field numbers in possession of vendor due to family arrangement–Transfer of such property in favour of vendee and possession delivered to him on basis of such transfer debars other co-sharers to get back such possession or challenge sale–Such right, however, would be subject to adjustment at the time of partition. PLJ 2004 Lahore 1732

Plaintiffs being co-sharers, to the extent of specific land in their possession, they could not be dispossessed therefrom except in due course of law–Defendants have option to more proper forum for redressel of their grievance and can get land partitioned by metes and bounds–If in partition proceedings, appellants fail to get any share, Authorities concerned would hand over entire gifted land to defendants.  PLJ 2003 SC (AJ&K) 17

Private partition of joint property–Documents on record showed that property in question was joint between parties–Parties to suit being co-sharers were entitled to get the same partitioned–Simple statement of one co-sharer that private partition of property was taken place in 1995, cannot be deemed to be admission and conclusive proof of the fact that property had already been privately partitioned between them. PLJ 2003 Lahore 753

Possession of one co-sharer on every inch of land is for the benefit of other co-sharers and if the mutation had been attested in favour of some of the co-sharers, that would not extinguish the title of the other co-sharers. Shahro and others v. Mst. Fatima and others PLD 1998 SC 1512 rel= PLD 2003 Lahore 186

Remedy against co-sharer in possession—Person acquiring possession of immovable property at the very inception as co-owner could not be dispossessed from the same without proper partition and a decree/order of a competent Court in that regard. 2002 MLD 434

Possession of one co-sharer on every inch of land is for the benefit of other co-sharers and if the mutation had been attested in favour of some of the co-sharers, that would not extinguish the title of the other co-sharers. Shahro and others v. Mst. Fatima and others PLD 1998 SC 1512 rel. PLD 2003 Lahore 186

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