Mehar Singh, C.J.
1. This second appeal arises out of a pre-emption Buit by Pritam Chand and Wazir Chand, plaintiffs, against Lachhman Singh defendant, and concerns land situate within the area of village Khamano in Tehsil Samrala of Ludhiana District.
2. There is the Jamabandi of 1960-61, copies. Exhibits P-7 and P-8, of Khewats Nos. 171 and 172, showing Rajinder Singh and Harindar Singh, real brothers, in possession of half share, and Ajmer Singh Sn the remaining half share of rectangles 6, 12, 13 and 16, among others, in Khewat No. 171, and of rectangles 13 and 16 in Khewat No. 172. There is the copy of the Jamabandi of 1952-53, Exhibit P-2, inwhich those three co-sharers are shown owners of Khewat No. 132/146, among others, rectangles 6, 12, 13 and 16- Apparently the Khewat numbers changed in the subsequent Jamabandi, but the rectangle numbers continued to be the same and so also, it follows, the Killa numbers in each rectangle.
3. On August 20, 1960, by registered sale-deed, Exhibit P-1, Harindar Singh co-sharer sold 48 Kanals and 2 Marias of land to the plaintiffs. The description of the land sold by him given in this sale-deed is that he was selling his share of 46 Kanals and 12 Marias, out of 186 Kanals and 8 Marias comprising of rectangle 6, Killas Nos. 16 and 25, and rectangle 13, Killas Nos. 1 to 19 and 22 to 26, one-fourth share, and again 1 Kanal and 10 Marias, out of 7 Kanals and 10 Marias comprising of rectangle 13, Killa No. 20, one-fifth share. So Harinder Singh co-sharer sold two Killas out of rectangle 6, and 24 Killas out of rectangle 13, in the share as already given. With this sale-deed is attached a copy of the Jamabandi of 1952-53, Exhibit P. 2, which shows that rectangles 6 and 13 are in Khewat No. 132/146. In the Jamabandi of 1960-61, copies Exhibits P. 7 and P. 8, rectangle 6 is in Khewat No. 171, and rectangle 13 in Khewat No. 172.
4. On February 2, 1965, another co-sharer Aimer Singh by registered sale-deed, Exhibit D. 1, sold to Lachhman Singh defendant, 103 Kanals and 8 Marias of land out of rectangle 16, Khewats Nos. 171 and 172 of the Jamabandi of 1960-G1, copies Exhibits P. 7 and P. 8. In that sale-deed Aimer Singh co-sharer referred to rectangles 12, 13 and 16 and also to the specific Killas from each rectangle of which the total area came to 243 Kanals and 2 Marias, and of which he sold 103 Kanals and 8 Marias from rectangle 16, Killas Nos. 6, 7, 8, 13, 14, 15, 17/2, 16, 17/1, 18, 19, 23, 24 and 25. Rectangle 16 appears in Khewats Nos. 171 and 172 according to the Jamabandi of 1960-61. Killas Nos. 6, 7, 8, 13, 14, 15 and 17/2 are in Khatauni No. 251 of Khewat No. 171, and Killas Nos. 16, 17/1, 18, 19, 23, 24 and 25 are in Khatauni No. 258 of Khewat No. 172. So that the land from rectangle 16 sold by Aimer Singh to the defendant came from Khewats Nos. 171 and 172. In Khewat No. 171 also come, according to the same Jamabandi, rectangles 6, 12 and 16, and in Khewat No. 172 come rectangles 12, 13 and 16.
5. The plaintiffs sought to pre-empt the sale in favour of Lachhman Singh defendant claiming a preferential right of pre-emption as co-sharers according to Section 15 (1)(b). Fourthly, of the Punjab Pre-emption Act, 1913 (Punjab Act 1 of 1913), on the ground that by the earlier sale in their favour. Exhibit P. 1, byHarindar Singh co-sharer, they had become co-sharers of the land sold by Ajmer Singh co-sharer to the defendant, being co-sharers with him in the same Khewat.
6. It will be seen that Ajmer Singh, Harindar Singh and Rajindar Singh have been co-sharers of the land of Khewat No. 132/146 of the Jamabandi of 1952-53, equivalent to Khewats Nos. 171 and 172 of the Jamabandi of 1960-61. They were co-sharers of rectangles 6, 12, 13 and 16, apart from other land, and while Harindar Singh co-sharer sold land to the plaintiffs by an earlier sale-deed in their favour out of rectangles 6 and 13, by a subsequent sale Ajmer Singh co-sharer sold land to the defendant out of rectangle 16. So while the plaintiffs purchased the share of land earlier out of rectangles 6 and 13 and no share out of rectangle 16, by the later sale the defendant purchased the whole of the area of Killa numbers of rectangle 16 as given in the sale-deed. Exhibit D. 1, and although that sale-deed refers to rectangle 13 and was sold Killas, no part of rectangle 13 was sold by Ajmer Singh co-sharer to the defendant.
7. The suit of the plaintiffs was dismissed by the learned trial Judge on the ground that they are not co-sharers of joint land with Aimer Singh vendor. The learned Judge pointed out that the plaintiffs have not any share in the whole of Khewats Nos. 171 and 172, and all that they have purchased from Harindar Singh co-sharer under an earlier sale has been purchase of specific share out of specific Killa numbers of specific rectangles. The learned Judge further pointed out that the plaintiffs never purchased any part of rectangle 16. In appeal the learned Judge was of the opinion that by reason of the sale in their favour under the earlier sale-deed. Exhibit P. 1, the plaintiffs have become co-sharers in Khewats Nos. 171 and 172, because one-half share of the entire holding of Khewats Nos. 171 and 172 has within it rectangles 12, 13 and 16 in the Jamabandi of 1960-61, copies Exhibits P. 7 and P. 8. The learned Judge in the first appellate Court came to the conclusion that the sale-deed. Exhibit P. 1, shows that it was not the specific Killas that were sold by Harindar Singh co-sharer to the plaintiffs but a share out of the joint Khewat. So the learned Judge was of the opinion that the plaintiffs have become co-sharers of Aimer Singh, Harindar Singh and Rajindar Singh co-sharers and they have a preferential right to preempt the sale in favour of the defendant. This is the defendant's second appeal from the appellate decree.
8. The plaintiffs have one-fourth share of Harindar Singh co-sharer in Khewat No 171, rectangle 6 and Khewat No, 172, rectangle 13, of the Jamabandi of 1960-61, copies Exhibits P. 7 and P. 8. The totalholding of the three co-sharers, namely, Ajmer Singh. Harindar Singh, and Rajindar Singh, consists of much more area and has within it rectangle 16 of Khewats Nos. 171 and 172 of the same Jamabandi So the plaintiffs have one-fourth share of rectangles 6 and 13 of the joint land of those three co-sharers, but they have not a fractional or a proportional share in the total joint holding of those co-sharers, including rectangle 16 of Khewat Nos. 171 and 172. So the plaintiffs have a fractional share in denned and specific Killas of joint holding of those co-sharers, but not in the total area of their joint land. In Section 15 (1) (b). Fourthly, of the Act a co-sharer has a preferential right of preemption 'where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly.' Here the sale to the plaintiffs was by a co-sharer, Harindar Singh, of a share out of a denned part of the joint land of the three co-sharers but not out of the whole of their joint land. The question then that has arisen in this case is, whether the plaintiffs have become co-sharers in the joint land of those three co-sharers and thus have a preferential right of pre-emption in regard to the sale made by Ajmer Singh co-sharer to Lachhman Singh defendant? One more fact may be noted here before proceeding with the consideration of this question and that is that according to the Jamabandi of 1952-53, Exhibit P. 2, the Killas in rectangles 6, 12, 13 and 16 were all in Khewat No. 132, of which there was only one Khatauni number, which was 146. So Killas of all those rectangles were in one Khewat number which had only one Khatauni number and the description has commonly been given as Khewat No. 132/146. However, in the Jamabandi of 1960-61, copies Exhibits P. 7 and P. 8, Under Khewat No. 171. rectangle 6 is shown in Khataunis Nos. 248 and 250, and rectangle 12 in Khatauni No. 249, and some of the Killa numbers of rectangle 16 in Khatauni No. 251, and In Khewat No, 172 Killa numbers of rectangle 13 appear under Khataunis Nos. 252, 253, 254. 258, 263 and 266 and the remaining Killa numbers of rectangle 16 appear under Khatauni No. 258. So some of the Killa numbers of rectangle 13 and some of rectangle 16 are in Khatauni No. 258 of Khewat No. 172.
9. In Matu v. Hirde, 44 Pun Re 1894, Plowden, S.J. observed that 'the purchase by defendant of specific land cannot make him a sharer in the khata, and whatever right he may have to the land comprised in the deed if it falls to the share of his vendor, as it probably will, it cannot alter the land from being joint property of the co-sharers in the khata into separate property of the purchaser', and the same learned Judge in Champa Mal v. Baisakhi Mal, 87 Pun Re 1894 (FB), In which a co-sharer had sold undivided halfof his half, or one-fourth of the holding, observed that the land
'was joint undivided immovable property in which all the proprietors were co-sharers ............... The land in dispute isa portion of the village which belonged, as an entirety, to the recorded proprietors, as co-owners with a joint title, the recorded shares merely representing the quantity of the interest of each group among them, in the whole village in unity.'
A sale by a co-sharer of a specific piece Or plot of land out of joint land or property does not make the purchaser or the vendee a co-sharer with other co-sharers, according to the first case, but where such a purchaser or vendee takes, on sale, a fractional share of a co-sharer in the joint land or property, then he comes to hold the land along with the other co-sharers in the fractional proportion of the whole which he has purchased, and this is the second case. The present case is neither the one nor the other. Here the plaintiffs have been purchasers of a fractional share of defined Killas of land in rectangles 6 and 13, but not a fractional share in the whole of the joint land of the three original co-sharers including rectangle 16.
It is, however, urged on the side of the plaintiffs that even in the facts of the present case the plaintiffs have become co-sharers of the joint land of the three original co-sharers in both Khewat Nos. 171 and 172, and reliance in this respect is placed by their learned counsel on Kuljas Rai v. Pala Singh, AIR 1945 Lah 15, in which the learned Judges held that
'when a person sues for land jointly owned by two persons, even if specific plots are sold, in law it is treated as a Bale of a share of the joint property. No co-sharer has any right to sell specific plots out of the joint khata and, therefore, the value of an individual plot comprised in the joint khata is wholly immaterial in determining the point of court-fee.'
It is apparent that the decision was given for purposes of court-fee under the Court-fees Act of 1870 and has nothing to do with a case like the present under Punjab Act 1 of 1913. It is evident that Bo far as the present matter is concerned, if Kuljas Rai's case, AIR 1945 Lah 15 is to be read in the manner as the learned counsel for the plaintiffs would have it, it runs contrary to the first judgment of Plowden, S.J., but Rajindra Singh v. Umrao Singh, ILR 5 Lah 298 = (AIR 1925 Lah 223), and Sher Singh v. Nand Lal, AIR 1947 Lah 184, proceed on a view exactly the same as expressed by Plowden, S.J. in the two cases already referred to. In these last-mentioned two cases the learned Judges held that the word 'co-sharers' signifies persons owning a share or shares in the whole of the pro-perty or properties of which another share or other shares were the subject of sale. So Kuljas Rai's case, AIR 1945 Lah 15 does not support the contention on the side of the plaintiffs.
For Lachhman Singh defendant reliance is placed on cases of Rajindra Singh, ILR 5 Lah 293 = (AIR 1925 Lah 223) and Sher Singh, AIR 1947 Lah 184 that the plaintiffs have not become co-sharers in the joint land of the original three co-sharers, because they have not purchased undivided share of the whole of that joint land. It may, however, be stated that khata is equivalent to Khewat, and it is apparent from the opinion of Plowden, S.J., in the cases already referred to, that, in the matter of finding out for the exercise of a preferential right of pre-emption, the status of a party as co-sharer has to be seen in a khata or thus a Khewat.
10. The present is not a case of one or the other class of cases disposed of by the judgments of Plowden, S.J., but it is apparent that the present case, in which the plaintiffs are purchasers of a share of specified Killa numbers in specified rectangles only and not in the whole joint land of the three original co-sharers, is more near the dictum of the learned Judge in Matu's case, 44 Pun Re 1894 than in Champa Mal's case. The plaintiffs have purchased specified survey numbers in specified rectangles with this difference only from Matu's case, 44 Pun Re 1894, that in that case the total area of the specified land was purchased, but here a share of that has been purchased. These matters then come for consideration:
11. In the first place, it is clear that if the plaintiffs were to claim a decree for joint possession of the whole of the joint land of the three original co-sharers, they would not succeed in that, for the simple reason that they would be held to the terms and conditions of the sale in their favour, which limits their right to the share of Harindar Singh co-sharer to the extent of one-fourth in the Killa numbers stated of rectangles 6 and 13. So that the plaintiffs will not succeed in obtaining a decree for joint possession with the other co-sharers of Harindar Singh as to the land other than the Killa numbers of rectangles 6 and 13 sold to them.
12. Secondly, it is settled that possession of one co-sharer as such is not adverse to his other co-sharer or co-sharers. This is obviously qua joint land or property of such co-sharers. If the plaintiffs are in possession of any Killa numbers or any part of Killa numbers, hot sold to them in rectangles 6 and 13, they will not hold such possession adversely to the other co-sharers, that is to say Ajmer Singh and Rajindar Singh, but it is not quite clear why they cannot adversely possess that part of the land ofthe original co-sharers which is not the subject of their sale-deed and which does not come within the ambit and scope of that sale-deed. They have purchased Harindar Singh co-sharer's share in Killa numbers of rectangles 6 and 13 and there is apparently no reason why they should not be able to, should they succeed in this, hold possession of any part of rectangle 16 and that adversely to the other co-sharers Ajmer Singh and Rajindar Singh. The learned Judges in Sant Ram Nagina Ram v. Daya Ram Nagina Ram, AIR 1961 Punj 528, pointed out that the basis of co-sharers not being able to prescribe by mere possession of joint land against other co-sharers is that every co-sharer has a right to use the joint property to the whole extent.
On the side of the plaintiffs the argument of the learned counsel has been that in a case like the present the plaintiffs, if they go into possession of any part or whole of rectangle 16, they by the mere fact of having possession of the same will not be holding it adversely to the other co-sharers. In this respect reliance is placed on Kanhaya v. Trikha, AIR 1935 Lah 651, but in that case the vendors sold 2 Bighas and 6 Biswas out of a joint Khata of 1800 Bighas. That was not a case of sale of specific plot or field or survey numbers, but was a case of sale of a proportionate area out of the whole. It is the same thing to sell 2 Bighas out of 100 Bighas or one-fiftieth, of 100 Bighas, in either case the sale is not of a specific survey number or plot out of the joint land but of a proportionate share of the same. Kanhaya's case, AIR 1935 Lah 651 was of this type and, therefore, does not advance the argument on the side of the plaintiffs.
Another case that Has been relied upon fn this respect by the learned counsel for the plaintiffs has been Charan Kaur v. Hari Singh, AIR 1954 Punj 124. But in that case the learned Judge upon the evidence found that adverse possession as claimed had not been proved. In the beginning of the judgment reference is to a gift of half share of the land, but later on the learned Judge has observed that the gift was of specific properties and the donee's possession could not be adverse to the other co-sharers, the learned Judge in this respect following Mam Raj v. Chhotu, AIR 1933 Lah 763 (1). In the last-mentioned case what had been sold to the vendee was a share of the joint holding and not a specific part of it. So Mam Raj's case is not a satisfactory instance which lends support to the argument on the side of the plaintiffs. In the circumstances of the present case in the terms of the sale-deed in favour of the plaintiffs they will not be able to prescribe by possession against the other co-sharers in the Killa numbers of rectangles 6 and 13 in which they have purchased share of Harindar Singh co-sharer, but, as has already been said, there is no reason whatsoever why they, should they obtain possession, be not able to prescribe so far as the other land of the original three co-sharers is concerned.
13. Thirdly, if the plaintiffs apply for partition as between themselves and the original three co-shakers, they cannot possibly ask for the division of the whole of the joint land of the three original co-sharers. Here again they would be confined to the terms and conditions of the sale-deed in their favour. According to that deed what they have purchased is one-fourth share of certain defined Killa numbers out of rectangles 6 and 13, and they cannot ask that that one-fourth share should be taken in partition in relation to the whole of the joint holding of the original three co-sharers, should the other two co-sharers, than the vendor of these plaintiffs, take exception to that. The reason is obvious. A co-sharer cannot so deal with joint land or property as to prejudice the rights and title of the other co-sharer or co-sharers in the same, but severance of tenancy-in-common may take place, apart from partition, by common consent. If on an application for partition by the plaintiffs, the other two co-sharers, than the plaintiffs' vendor, consent to the partition being confined to rectangles 6 and 13, one-fourth share of the Killas of which has been sold to them, then that would amount to the act of the three original co-sharers in first making a division of their joint land into two parts, one that of rectangles 6 and 13, and the other that of the rest of their joint land, and thereafter the partition of the first can take place between the plaintiffs and those co-sharers. The plaintiffs cannot compel the other co-sharers to bring in the rest of their joint land for the matter of partition though those co-sharers may compel the plaintiffs' to bring in what has been sold to them in a partition of the whole of the joint holding of the original co-sharers. This obviously proceeds on the basis, as stated, that no co-sharer can do any act prejudicial to the interest of the other co-sharers In the joint land or property. The learned counsel for the plaintiffs refers to Nihalu v. Chandar, AIR 1959 Punj 115, to contend that the plaintiffs have the right to insist on partition that the whole of the joint holding of the three original co-sharers should be brought into consideration. In that case the learned Judges observed 'that a person whose interest is not coextensive with the common property may insist that the omitted propery be included in the suit or at any rate that such properties should be included in the suit as will result in setting off to him In severally some portion co-extensive with his interest.' In a case like the present there can be no two opinions that at the time of partition what should happen should be that the whole of the joint land of the three original co-sharers be partitioned and sale in favour of the plaintiffs be taken into consideration to the extent it goes. This is as much as the learned Judges held in Nihalu's case, AIR 1959 Punj 115. Apparently the plaintiffs will not be able to insist contrary to the claim of the other co-sharers to bring in property, to which their sale does not relate, for partition, because they must be held to the terms and conditions of the sale in their favour, they being purchasers not of a share of the joint land of the original three co-sharers, but only a share of a defined part of it, that is to say, Killa numbers of rectangles 6 and 13.
14. And, lastly, the plaintiffs not having purchased a share of the whole of the joint land of the original three co-sharers and having only purchased a share of defined Killa numbers of defined rectangles, that is to say rectangles 6 and 13, they obviously, in the terms of their sale-deed, do not have their rights extending beyond the land of which share has been sold to them. In other words, while they become joint owners or co-sharers of the land of rectangles 6 and 13 with the original co-sharers, they do not become co-sharers with them in the other or the remaining joint land of those three original co-sharers. In Mahla Singh v. Harnam Singh, (1935) 37 Pun LR 276, the learned Judge observed -- 'Mehla Singh has, it is true, purchased some specific fields in Khataunis Nos. 83 & 84 in this Khata which can be described as Hakkiat Mutfarrika. But this would not make Mehla Singh a co-sharer of the vendor in Khata No. 14. The same line of reasoning applies to Khata No. 39 where also the plaintiffs and Hira Singh are co-sharers while Mehla Singh has no fractional share in it. He owns certain Khataunis in this Khata, namely, Nos. 419 to 421 but that would not make him a co-sharer in the Khata.' In Mir Alam Khan v. Abdul Hamid Khan, AIR 1944 Pesh 40, the pre-emptor had purchased three specific survey numbers out of a Khata, and the learned Judge held that that did not make him a co-sharer in the Khata. These two cases negative the claim of the present plaintiffs, and no case to the contrary has been cited at the bar. On consideration of these matters the conclusion is obvious that the plaintiffs have failed to prove that they are co-sharers in or in regard to rectangle 16 sold by Ajmer Singh co-sharer to the defendant.
15. The learned counsel for the plaintiffs has referred to Safdar Ali v. Dost Muhammad, (1890) ILR 12 All 426 (FB), Dakhni Din v. Rahim-un-Nissa, (1894) ILR 16 All 412, Ali Husain Khan v.Tasadduq Husain Khan, (1906) ILR 28 All 124, Ram Govind Pande v. Panna Lal, AIR 1924 All 305 and Ramjimal v. Riaz-ud-din, AIR 1935 PC 169 (from Allahabad), for the proposition that a purchaser of a specific field in a village or a Mahal becomes a co-sharer in the same, but all those cases proceeded on the basis of the meaning and scope of the word 'co-sharer' either in the wajib-ul-arz of the particular place or a particular statute, which has nothing in common with the provisions of Section 15 (1) (b), Fourthly, of Punjab Act 1 of 1913. So these cases are not really relevant to the _ controversy in the present case. Similar is the case with regard to Karuppan v. Ponnarasu Ambalam, AIR 1965 Mad 389, as in that case what was the subiect of transfer was a share of the property.
16. In consequence, the plaintiffs fail to prove that they have a preferential right of pre-emption under Section 15 (1) (b). Fourthly, of Punjab Act 1 of 1913 on the ground that they have been co-sharers with Aimer Singh vendor in the land of rectangle 16 sold by him to the defendant and thus co-sharers with Aimer Singh vendor in the joint land. So the appeal of the defendant is accepted and, reversing the decree of the lower appellate Court, the decree of the trial Court is restored, so that the suit of the plaintiffs remains dismissed, with costs throughout.
D.K. Mahajan, J.
17. I agree.
Bal Raj Tuli, J.
18. So do I.