P L D 2006 Lahore 4 (PLP)

MUHAMMAD SAIR ALI, J.

This judgment shall deal with and decide C.R.No.2565-2001 and C.R. No.2566-2001 being on the same subject-matter and between the same parties.

2. The petitioners claiming to have superior right of pre-emption on the basis of contiguity and co-ownership sough to pre-empt the sale transaction made in favour of the respondents by the vendor. The petitioners also pleaded to have dully exercised Talbs.

3. Upon contesting written statement of the respondents, issues were framed. Evidence was recorded by the learned trial Judge who thereupon decreed the suit of petitioners. On respondents' appeal, the learned Additional District Judge Bhakkar set aside the judgment and decree of the learned trial Judge in acceptance of the appeal and dismissed the suit filed by the petitioners on the basis of the following observations:-- "The plaintiffs have claimed their superior right qua the defendants as they are co-sharers in the disputed Khata and have contiguous land which was denied by the defendants/appellants. The suit land comprises in Khasra No.47/7/2 and 48/4/1, while the plaintiffs are owners of Khasra Nos.46/7 and 46/4/3, which are not contiguous to Khasra No.47/7/2. The contention of the plaintiffs/respondents that they are co-sharers on the basis of contiguity carries no force, because they have no superior right of pre-emption on the basis of contiguity, because their land is not contiguous to the disputed land."

4. The above reproduced part of the judgment reveals that the learned Additional District Judge in his reasoning has treated as non-existent the difference between the "contiguity of lands" or/and the "co-ownership of Land Or that the learned Additional District Judge did not apply his judicial mind to the independence of the two claims of the petitioners qua their superior rights. The dual claims as made required separate treatment and decision thereto. Such is the import of the law as well. Section 6 of the Punjab Pre-emption Act recognizes the right of pre-emption to vest:-- (i) firstly, in Shafi Sharik, i.e. a co-owner in the undivided immmovable property sold; (ii) secondly, in Shafi Khalit i.e. a participator in the special rights attached to the immovable property sold; and (iii) thirdly, in Shafi Jar i.e. an owner of immovable property adjacent to the immovable property sold.

5. The above quoted provision of section 6 ibid serially and separately categorized the superior claims to the right of pre-emption of a pre-emptor as Shafi Sharik, Shafi Khalit and Shafi Jar. The explanation, I, II & III respectively define the meanings of these nomenclature rights. Each definition sets out the scope, the qualifications and the conditions of each of these rights. A pre-emptor may have a claim to the right of pre-emption on the basis of anyone or more of the prescribed qualifications. He may only be a Shafi Sharik or Shafi Khalit or Shafi Jar or he may enjoy; the status of any two or all the three which may at times be interlinked or overlapping but are severable and independent in their essential nature.

6. Co-ownership is a status arising out of the ownership "in the corpus of the undivided immovable property sold" while the contiguity or adjacency does not visualize the existence of a right or interest of the pre-emptor in the sold property. Contiguity contrarily maintain duality and distinctiveness of the ownership of the two properties; which adjoin each other. The right of pre-emption as Shafi Jar emanates from the location of the immovable property for being immediately next to the property sold. In essence the right of ownership in the property bordering the property sold begets the pre-emptive right as Shafi Jar to a pre-emptor, Shafi Sharik in contradistinction gets the right of pre-emption because of an existing and shared ownership right in the corpus of the property sold. The legal connotation of the two is clearly separable wherefor the merging treatment given by the learned Additional District Judge to the two independent claims of the petitioners to superior right, mitigates against the duality and separateness of such claims. These two claims could not have been merged into each other and could not have been treated as interdependent as have been done by the learned Additional District Judge. The Court has to adjudicate upon and determine the plaintiff's claim to each right or each status independently, disjunctively and clearly by recording distinct reasons for acceptance or rejection of the same.

7. In view thereof, the judgment and decree dated 12-9-2001 passed by the learned Additional District Judge, Bhakkar cannot be maintained and is set aside. The case is remitted to the learned District Judge, Bhakkar for re-decision of the appeal which shall be deemed to be pending. The appeal shall be decided afresh by the learned first Appellate Court on the basis of evidence and record and in keeping with the observations hereinabove recorded. The parties shall be allowed opportunity of hearing as required under the law. The parties shall appear before the learned District Judge, Bhakkar on 25-10-2005. The learned District Judge may, at his option, assign the appeal to any learned Addl. District Judge or may decide the same himself.

10. These civil revisions are accepted with no order as to the costs. M.A.W./K-136/L??????????????????????????????????????????????????????????????????????????????? Petitions accepted.