1989 PLP 47 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought by a vendee side in pre‑emption suit, against the dismissal by the High Court of petitioner's Civil Revision, against the pre‑emption decree passed in respondents' favour on ground of contiguity. Learned Counsel has attacked the impugned judgment both on question of findings of fact regarding contiguity, as also the legal question whether the plaintiff had the right of pre‑emption on the basis that he was a co‑sharer in the particular land found contiguous to the suit land. The learned Judge in the High Court while dealing with the question of contiguity observed as follows:‑‑ "After remand of the case by this Court, the learned Additional District judge, Peshawar recorded (lie evidence of Patwari Halqa who placed on the 'Aks Shajra Kishtwar' showing Khasra Nos. 134, 129 and 135 situate contiguous to Khasra No. 78 `Khatta' and so Khasra No. 154 was shown contiguous to Khasra No.150, another `Khatta'. Plaintiff‑respondents were shown in Jamabandi as owners in the above `Khattas' `Shamilat' land. On that basis plaintiff‑respondents were to prove themselves as contiguous owners of the suit land. Since the learned Additional District Judge, the appellate Court has not specifically mentioned and referred to in his judgment that Patwari Halqa has placed on file `Aks Shajra Kishtwar' and Jamabandis before him, which were proving the plaintiff respondents as contiguous owners of the suit land, as such the learned counsel for the defendant‑petitioner ways mistaken that the evidence of the trial Court was not establishing the plaintiff‑respondents as contiguous owners of the suit land and he was, therefore, to challenge the findings of the trial Court on the issue of superior right of pre-emption, otherwise on the record of the file of the appellate Court the plaintiff‑respondents stood proved as contiguous owners of the suit land." The concurrent finding regarding contiguity of Khasra No. 78 and Khasra No. 150 with the suit Khasra numbers stands clearly established. There is no justification to set aside the concurrent finding, of fact, to this behalf. Learned counsel then contended that Khasra Nos. 78 and 150 are Khatas (water‑course) on the land comprised of Shamilat land. Therefore, according to him, it could not have been made the basis for right of pre‑emption. He has relied on some cases firstly, where a Shamilat land was being used as a public thoroughfare and the pre‑emptor claiming co‑sharership in the Shamilat deh, had claimed right of pre emption on the basis of sharing of the common thoroughfare. This claim, in the particular circumstances, based as it was, on the user of the thorough public fare, was rejected. There is another set of cases where sharing of common water course, in the circumstances thereof, was not held to be enough for establishing right of pre‑emption. In these cases the right of pre‑emption was based on sharing of common amenities. All these and similar cases proceed on the facts of their own. In this case, as distinguished from those cases, the right of pre‑emption is based on ownership of contiguous land. The land under the Khata, it has been held by the learned Courts below, is owned by the respondents pre‑emptors together with the other co‑villagers. It is contiguous to the suit land, therefore, it has been rightly held in the impugned judgment that the respondent was entitled to a decree for pre‑emption on the basis of contiguity. In the circumstances of this case, therefore, no error has been committed whether of fact or law. This petition fails. Leave to appeal, therefore, is refused, AA./G‑145/S Leave to appeal refused.