Rizwanullah Khan and others Vs Muhammad Usman Khan and others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

C.R No. 35-P of 2013.

Rizwanullah Khan and others Vs Muhammad Usman Khan and others

Mr. Abdul Samad Khan, Advocate, for petitioners. Present: M/s Arshad Jamal Qureshi & Salman Fayaz Mir, Advocates, for respondents.

Date of hearing: 10.08.2026 & 19.08.2026.

JUDGMENT

MUHAMMAD NAEEM ANWAR, J.- Impugned through the instant Civil Revision Petition, filed under Section 115 of the Code of Civil Procedure, 1908, is the judgment and decree dated 11.10.2012 passed by the learned Additional District Judge-VI, Peshawar, whereby the appeal preferred by the respondents/plaintiffs against the judgment and decree dated 22.05.2009 passed by the learned Civil Judge-X, Peshawar, dismissing their suit, was allowed to the limited extent of cancellation of the tatimma prepared in respect of the disputed property and the consequential allocation of a specific portion thereof, while the alienation made by defendant No.1 in favour of defendant No.5 was maintained. The petitioners, who are aggrieved by the aforesaid judgment to the extent of cancellation of the tatimma, have invoked the revisional jurisdiction of this Court.

2.The facts giving rise to the present petition, in brief, are that the respondents/plaintiffs instituted a suit for declaration, asserting that defendants No.1 to 4, including the present petitioners, were owners in possession of property comprised in Khasra No. 489 measuring 12 kanals 8 marlas, Khasra No. 310 measuring 8 kanals 7 marlas and Khasra No. 525 measuring 48 kanals 6 marlas, along with other properties situated in Revenue Estate Chughulpura, Tehsil and District Peshawar. There had been previous litigation between the parties concerning inheritance flowing from Mst. Sahib Jan Sultan, which controversy was ultimately decided by the Hon’ble Supreme Court through judgment dated 30.05.1990 passed in Civil Appeal No. 35-P of 1988. The plaintiffs asserted that proceedings for

partition of the joint property had been initiated by them in 1983 and that a mode of partition had already been prepared, with the proceedings having reached an advanced stage. During the pendency of those proceedings, they came to know that defendant No.1 had purportedly transferred an area measuring 16 kanals in favour of Mst. Fahmida Begum, his wife, towards dower. It was further alleged that, during the pendency of the partition proceedings, defendants No.5 and 6, in collusion with officials of the Revenue Department, commenced construction over the disputed property. An application was accordingly moved before the Revenue Officer for restraining such construction, and the construction raised thereon was subsequently demolished pursuant to an order passed by the competent authority.

The plaintiffs specifically challenged the legality of Mutation No. 857 dated 10.03.1979, contending that the same had been attested in violation of the applicable land laws. Their principal grievance was that, in the absence of a lawful partition, preparation and carving out of a tatimma in respect of a specific portion of a jointly owned survey number amounted, in substance, to an unauthorized separation of a defined parcel from joint property, thereby affecting the rights of the remaining co-sharers. It was further asserted that defendant No.1, being entitled only to his share in the joint estate, could not lawfully alienate 16 kanals as a specific and separately identified portion of the joint property in a manner prejudicial to the rights of the other co-owners. Having failed to secure correction of the revenue entries from defendants No.1 and 5, the plaintiffs were constrained to institute the suit.

3.The suit was contested by defendants No.1 and 5 on various factual and legal grounds. Their case was that the property had already been privately partitioned amongst the co-owners and each of them was in possession of his respective share. It was, therefore, maintained that the alienation reflected through Mutation No. 857 was lawful and could not validly be questioned by the plaintiffs. Defendant No.6 also filed a written statement. The parties

were thereafter directed to produce their evidence. Muhammad Jamil, Patwari Halqa of Revenue Estate Chughulpura, appeared as a witness and produced the relevant revenue record, including the goshwara-e-Milkiyat. Muhammad Usman Khan appeared as attorney for the plaintiffs, whereafter the plaintiffs closed their evidence. Dr. Rizwanullah Khan appeared as attorney for defendants No.1 and 5, who also closed their evidence. Upon conclusion of the trial, the learned Trial Court, through judgment and decree dated 22.05.2009, dismissed the suit. The plaintiffs preferred an appeal, which was initially allowed through judgment dated 07.01.2010. The matter thereafter came before this Court in Civil Revision No. 742-P of 2010. The revision petition was allowed, the judgment and decree of the learned Trial Court were set aside and the matter was remanded to the learned Additional District Judge-VI, Peshawar, for a fresh decision after hearing the parties. Upon remand, the learned appellate Court, through the impugned judgment dated 11.10.2012, allowed the plaintiffs’ appeal to the limited extent of cancellation of the tatimma, while maintaining the alienation made by defendant No.1 in favour of defendant No.5. Hence, the present Civil Revision Petition.

4.Learned counsel for the petitioners, Mr. Abdus Samad Khan, Advocate, contended that the learned appellate Court failed to appreciate the distinction between the right of a co-sharer to alienate his undivided share and the subsequent adjustment of such alienation in partition proceedings. Placing reliance upon Muhammad Muzaffar Khan v. Muhammad Yusuf Khan (PLD 1959 SC (Pak.) 9), Shah Hussain v. Abdul Qayum and others (1984 SCMR 427), Mst. Saima v. Paramount Spinning Mills Ltd. and others (2011 SCMR 1039) and Town Committee, Jalalpur Pirwala through Chairman v. Malik Mehr Bakhsh and another (2007 YLR 82), learned counsel argued that the predecessor-in-interest of petitioners No.1 to 5 possessed substantial ownership in the revenue estate and, therefore, his right to alienate his share in favour of his wife could not be curtailed merely because the property was jointly owned. It was further contended that

Mutation No. 879 had subsequently been corrected through Mutation No. 5675 dated 25.06.2010 and that the latter mutation was itself assailable. Learned counsel, while referring to the statement of PW-1 and Exhibit PW-1/X-1, argued that Habibullah Khan was recorded as owner of 172 kanals 2 marlas, out of which 79 kanals 5 marlas had been alienated, leaving 92 kanals 17 marlas still standing in his ownership. On this basis, it was argued that the alienation did not exceed the transferor’s total entitlement in the estate and, consequently, could not be declared unlawful. The learned counsel thus sought restoration of the judgment and decree of the learned Trial Court.

5.Learned counsel appearing for the respondents, Mr. Arshad Jamal Qureshi and Mr. Salman Fayaz Mir, Advocates, whose arguments were heard on 10.08.2026, confined their submissions to the preparation and attestation of tatimma pursuant to Mutation No. 857 dated 10.03.1979. According to learned counsel, the learned appellate Court had correctly found that the tatimma could not lawfully have been carved out from the jointly owned property in the absence of the consent of all the recorded co-owners or a lawful partition through the competent Revenue authority.

6.Arguments have been heard and the record perused.

7.At the outset, the objection concerning Mutation No. 5675 dated 25.06.2010 may conveniently be dealt with. The said mutation was founded upon the judgment of the learned Additional District Judge, Peshawar, in Civil Appeal No. 10/13. That judgment, however, had already been set aside by this Court in Civil Revision No. 742-P of 2010 and the matter was remanded to the learned appellate Court for a fresh decision. It is also significant that, even when Civil Revision No. 742-P of 2010 was decided on 11.06.2012, a copy of Mutation No. 5675 had not been brought on the record. In any event, once the judgment which constituted the foundation of the said mutation stood set aside and the learned appellate Court was directed to reconsider the matter afresh, Mutation No. 5675 could not confer any independent or enduring legal consequence. The

revenue record, therefore, necessarily has to conform to the final adjudication of the rights of the parties.

8.The controversy concerning the alienation made by defendant No.1 in favour of defendant No.5 stands on a different footing from the question of preparation of the tatimma. The learned appellate Court consciously maintained the alienation, and that part of the judgment was never challenged by the plaintiffs/respondents. To that extent, therefore, the finding has attained finality. Even otherwise, a co-owner cannot be deprived of his fundamental right to alienate his own undivided share in joint property merely because the property has not yet been partitioned. A co-sharer may transfer his interest in the joint estate, but he cannot transfer a better title, a larger proprietary interest, or a specific parcel in excess of his own lawful entitlement. The controlling principle is that a co-sharer can transfer no better title than he himself possesses. Consequently, the validity of an alienation by a co-owner is necessarily subject to the upper limit of the transferor’s total entitlement in the entire joint estate. If a co- sharer is in possession of a particular khasra number or a defined portion thereof in the column of cultivation, such possession does not, by itself, transform his possessory arrangement into exclusive proprietary title. His alienation of a specific parcel may, therefore, operate between the transferor and transferee, but its ultimate efficacy remains subject to the transferor’s proprietary share and the result of lawful partition. This principle is well settled in Itebar Shah and others v. Ahmad Shah and others (2001 CLC 1021) and Abdul Hameed through legal heirs and others v. Shamssuddin and others (PLD 2008 SC 140). The vendee steps into the shoes of the vendor and acquires precisely the interest which the vendor could lawfully convey—no more and no less.

9.The same principle was lucidly enunciated in Muhammad Zafar Khan, wherein it was held that the vendee of a co-sharer, who owns an undivided khata jointly with others, acquires the same rights as his vendor. Even where the vendor is in exclusive possession of a particular portion of the joint land and transfers

possession thereof, the vendee remains a co-sharer in the joint property to the extent of the area purchased, provided that such area does not exceed the share of the vendor in the entire joint estate. The vendee may retain possession of the specific portion until partition, but such possession remains subject to adjustment at the time of partition. Thus, alienation of a specific portion by a co-sharer is not, by itself, rendered void merely because the joint property has not been partitioned; rather, the alienation remains subject to the vendor’s total proprietary entitlement and to adjustment in the eventual partition. If the specific area transferred exceeds the vendor’s share, the excess cannot be enforced against the other co- sharers and has to be adjusted from the vendor’s remaining share in the joint estate or otherwise dealt with in the partition proceedings. This principle has also been recognized in Mst. Saima (supra) and Shah Hussain (supra).

10.The distinction between the validity of an alienation and the validity of a tatimma is, however, decisive for the present controversy. The learned counsel for the petitioners has correctly relied upon the principle governing alienation by a co- sharer, but that principle does not authorize a unilateral separation of a specific parcel from a jointly owned survey number. A tatimma is essentially a revenue device for identifying and preparing a sub- division of an existing survey/khasra number. It is not, in itself, a mode of partition whereby the proprietary rights of all co-sharers can be separated or a defined parcel can be taken out of the joint character of the property at the unilateral instance of one co-sharer. The preparation of a tatimma, where it has the effect of severing a defined portion of a jointly owned survey number and giving that portion a separate identity in the revenue record, necessarily affects the proprietary and possessory rights of every recorded co- owner. Consent of all the co-owners is, therefore, a sine qua non for such a consensual sub-division; in the absence of such consent, separation of the joint property can only be achieved through lawful partition proceedings before the competent authority. This

distinction assumes particular significance where the alienation is of a specific portion of a joint survey number. A transferor may validly alienate his undivided proprietary interest, or even transfer possession of a specific portion subject to adjustment, but he cannot, by the mere act of alienation, unilaterally transform that portion into a separately identified proprietary parcel to the exclusion of the remaining co-sharers. Such transformation would, in substance and effect, amount to partition without notice to, and without the consent of, the other recorded owners. The principle was expressly considered by this Court in Syed Muqaddar Shah and another v. Haji Abdul Ahad Khan and another (1990 CLC 1596), where it was observed that where the vendor was in hissadari possession of an entire khasra number, preparation of a tatimma allocating a particular portion thereof to the vendee would have the effect of partitioning the khasra number without notice to and consent of the other recorded co-owners. The Court further recognized that a sale reflected in the column of cultivation, or preparation of a tatimma in consequence of sale of a portion of hissadari possession, remains subject to partition and adjustment of the rights of the recorded co- sharers. The principle is also consistent with the law declared in Kala Khan v. Shah Hussain and 9 others (1983 CLC 684), where this Court held that sale of specific field numbers by a co-sharer remains subject to adjustment in partition proceedings. The duty of the authority conducting partition is to accommodate the vendee and make good any deficiency, where possible, from the vendor’s other joint land in the same estate. The rationale is simple: the co-sharer cannot convey more than his proprietary entitlement, but neither can the vendee be deprived of the benefit of a lawful purchase merely because the vendor happened to be in possession of a particular parcel at the time of sale. The rights of all concerned are ultimately reconciled through lawful partition and adjustment. The principle emerging from the above authorities may, therefore, be stated with precision: a co-sharer is competent to alienate his proprietary interest in the joint estate, and such alienation is valid to the extent of his total entitlement therein; however, where a specific portion of a joint

survey number is identified for transfer, the identification of that portion cannot, by preparation of a tatimma, be converted into a separate proprietary parcel without the consent of all co-owners or without a lawful partition. The transferee acquires no better title than that possessed by the transferor, and the transfer remains subject to the transferor’s total share in the estate and to adjustment at the time of partition.

11.Applying the above principles to the case in hand, there is no dispute that other co-owners were recorded in the joint property. Equally, there is nothing on record demonstrating that those co-owners had consented to the preparation of the tatimma in question. The order of the Revenue Officer endorsed on the reverse of Mutation No. 857 dated 10.03.1979 does not disclose the consent of all the recorded co-owners. In such circumstances, the Revenue Officer could not, merely on the basis of the alienation made by defendant No.1, confer upon the vendee a separate and identifiable portion of the joint khasra by carving out a tatimma, because doing so would have the legal effect of severing that portion from the joint estate without completion of the process of partition. The learned appellate Court, therefore, committed no error in directing cancellation of the tatimma. The cancellation of the tatimma does not, in the circumstances of the case, amount to cancellation of the underlying alienation. The two matters are legally distinct. The alienation has been maintained, and rightly so, subject always to the settled limitation that defendant No.1 could not transfer an interest greater than his own proprietary entitlement in the entire estate. The vendee, consequently, stepped into the shoes of defendant No.1 and acquired the rights of the transferor only to the extent of his lawful share. The specific portion mentioned in the transaction could remain relevant for the purposes of possession and subsequent adjustment, but it could not be treated as having been lawfully severed from the joint property through an unauthorized tatimma.

12.The reliance placed by learned counsel for the petitioners upon the proposition that a co-sharer is competent to

alienate his property is, therefore, unexceptionable as a general proposition, but it does not advance the petitioners’ case on the specific question before this Court. The issue is not whether defendant No.1 could alienate his proprietary interest. That question has already been answered in favour of the petitioners, and the respondents have not challenged that finding. The real question is whether, as a consequence of that alienation, the Revenue Officer could lawfully carve out a tatimma from a jointly owned survey number without the consent of the other co-owners or a lawful partition. The answer, in view of the settled legal position, must necessarily be in the negative.

13.Learned counsel for the petitioners also contended that the joint property had subsequently been partitioned. In this regard, the record produced through C.M. No. 1265 reflects the order dated 27.09.2019 passed by Member-II, Board of Revenue, whereby the appeal preferred by Ali Hassan Durrani against Mst. Fahmida Begum and others was dismissed and the order of the Additional Commissioner, Peshawar, was maintained. The order of the Additional Commissioner, Peshawar, dated 10.12.2018 relates to completion of the partition proceedings. The record further indicates that Writ Petition No. 6546-P of 2019, whereby the order of the Board of Revenue was questioned, was dismissed on 08.12.2018, and the proceedings reflect completion of partition with effect from 10.08.2011. These subsequent developments, however, do not retrospectively validate an otherwise unauthorized tatimma prepared in 1979. The validity of the impugned revenue act has to be examined in the light of the legal position and the rights of the parties existing when that act was undertaken. If the joint estate has subsequently been partitioned, the rights flowing from the present judgment shall necessarily be incorporated and adjusted in the revenue record in accordance with the final determination of the competent forum. The subsequent partition may regulate the ultimate rights and possession of the parties, but it cannot retrospectively convert an unauthorized unilateral sub-division into a

valid consensual partition. It is, therefore, clarified that the cancellation of the tatimma does not preclude the vendee from asserting such proprietary or possessory rights as may lawfully accrue to her through the alienation made by defendant No.1. Those rights shall, however, remain confined to the transferor’s total entitlement in the joint estate and shall be worked out in accordance with the final partition and adjustment of shares.

14.There is another important aspect which cannot be overlooked. The respondents instituted the suit in 1994, whereas the impugned judgment of the learned appellate Court was rendered in 2012. The controversy relating to the tatimma, therefore, remained sub judice before the civil Court during the intervening period. To the extent the subsequent revenue proceedings purport to deal with the same subject matter, the revenue entries must necessarily remain subject to the adjudication of the competent civil Court. Once a civil Court has adjudicated upon the legality of the act affecting proprietary rights, the revenue record cannot be permitted to operate contrary to such adjudication.

15.The cumulative effect of the foregoing discussion is that three propositions govern the controversy: First, a co-sharer is competent to alienate his undivided proprietary interest in the joint estate, but he cannot transfer a title greater than his own; the validity and extent of the transfer are necessarily subject to his total entitlement in the entire estate. Second, where the transfer relates to a specific portion of a jointly owned survey/khasra number, the identification of that portion does not, by itself, effect partition or sever the parcel from the joint estate. The transferee merely steps into the shoes of the transferor and remains subject to the rights of the other co-sharers and the eventual adjustment in partition. Third, a tatimma, being a revenue mechanism for sub-dividing a survey number and giving a distinct identity to a specified portion, cannot lawfully be used as a substitute for partition. Where its preparation has the effect of separating a specific portion from jointly owned property, the consent of all co-owners is indispensable; failing

such consent, separation can only be achieved through lawful partition proceedings conducted by the competent authority. The learned appellate Court, therefore, correctly distinguished between the underlying alienation and the consequential preparation of the tatimma. While it preserved the alienation in favour of defendant No.5, it rightly declined to recognize the unilateral severance of a specific portion of the joint property through Mutation No. 857 and the tatimma prepared pursuant thereto.

16.For what has been discussed above, I find no illegality, material irregularity or jurisdictional defect in the impugned judgment dated 11.10.2012 warranting interference in exercise of revisional jurisdiction under Section 115, C.P.C. The learned appellate Court has correctly applied the law to the facts of the case and has drawn a legally sustainable distinction between the right of a co-sharer to alienate his interest and the impermissibility of unilaterally severing a specific portion of joint property through preparation of a tatimma. Consequently, the instant Civil Revision Petition, being devoid of merit, is dismissed. The impugned judgment & decree dated 11.10.2012 passed by the learned Additional District Judge-VI, Peshawar, is maintained. It is, however, clarified that cancellation of the tatimma shall not be construed as cancellation of the underlying alienation in favour of defendant No.5, which shall remain subject to the transferor’s total proprietary entitlement in the joint estate and to the lawful adjustment of the parties’ rights in partition proceedings. There shall be no order as to costs.

Announced. JUDGE

(SB)Hon’ble Mr. Justice Muhammad Naeem Anwar.

Asif Jan Sr.S.S.