1993 PLP 2334 (SCMR)

WALI MUHAMMAD KHAN, J.‑‑‑Mst. Mir Jan and others, heirs of Jamal Din, have challenged the consolidated judgment dated 20‑5‑1992 passed by a learned Single Judge of the Peshawar High Court, Abbottabad Bench, whereby Revision Petitions Nos.48 of 1990 and 23 of 1985 filed by Ghulam Nabi, respondent herein, were accepted and the judgments and decrees for possession through pre‑emption passed in their favour in Suits Nos.79/1 of 1976 and 105/1 of 1978, were set aside and their suits were dismissed. Ghulam Nabi, respondent herein, purchased land measuring 66 Kanals 8 Marlas comprised in Khasra Nos.2, 3 and 4 situated in the area of village Pipal, Tehsil Abbottabad vide Mutation No.538 attested on 5‑4‑1975 which was pre‑empted by Jamal Din, predecessor‑in‑interest of the petitioners which after contest was dismissed by the . Additional Civil Judge vide his judgment and decree dated 31‑7‑1984, however, on appeal the same was set aside vide judgment dated 10‑1‑1985 and decree for possession through pre emption was passed in favour of the plaintiff/pre‑emptor on payment of Rs.7,171.52. A revision petition was filed by the defendant/respondent in which on the joint statement of the learned counsel for the parties recorded on 23‑9 1989 the matter was remitted to the District Judge for decision afresh and recording of evidence as per the request of the learned counsel for the parties. After complying with the direction of the High Court, recording of the evidence and hearing of the learned counsel for the parties, the appellate Court, vide judgment and decree dated 1‑3‑1990, once again accepted the appeal, set aside the judgment of the trial Court and passed the decree prayed for in favour of the petitioners against the defendant/respondent on payment of Rs. 7,171.52. This decision was challenged once again before the High Court through a revision petition bearing No.48 of 1990. Ghulam Nabi, respondent herein, also purchased land measuring 12 Kanals 12 Marlas comprised in Khasra No.5 situated in the area of village Pipal vide Mutation No.558 attested on 22‑6‑1977 which too, was pre‑empted by Jamal Din and which too, was contested and the learned trial Court after recording evidence of the parties, vide judgment and decree dated 31‑7‑1984, dismissed the suit. However, the learned appellate Court, vide its judgment and decree dated 10‑1‑1985, set aside the same and passed the decree prayed for in favour of the plaintiffs/petitioners against the defendant/respondent on payment of Rs.1,

826. The defendant/respondent filed revision petition against it also which was registered as Civil Revision No.23 of 1985. Since the acquired properties purchased through the above two sale mutations were contiguous inter se and the parties based their right of pre emption on the respective transactions as well, both the revision petitions were heard together by the learned Single Judge and by accepting them set aside the judgment of the appellate Court and restored that of the trial Court resulting in the dismissal of both the suits. We have heard Mr.Munir Peracha, Advocate, for the petitioners and have perused the record of the case. The learned counsel for the petitioners frankly conceded at the very outset that Khasra No.1 on which the pre‑emptor based his right of pre emption regarding Khasra Nos.2, 3 and 4 was recorded as the occupancy tenancy of the deceased plaintiff/pre‑emptor and that in view of the recent judgment of this Court in case Abdul Jalil (deceased) through his L.Rs. v. Muhammad Hussain (1992 SCMR 1605) he had no right of pre‑emption on the basis of contiguity. However, he stressed that under section 4(o) of the N: W.F.P. Tenancy Act the occupancy right had automatically converted into ownership right and on that account the deceased plaintiff being owner thereof could justifiably claim right of pre‑emption on the basis of contiguity. We are afraid, the argument is without any force, inasmuch as, under section 4 of the N.‑W.F.P. Tenancy Act, 1950 the occupancy tenants of Khasra numbers who were paying rent in cash to the landlord, they could only become owner on payment of compensation prescribed therefore. Since the petitioners had not paid the required compensation they continued recorded as occupancy tenants and became owner thereof on 28‑3‑1985 on deposit of the compensation and attestation of Mutation No.705 on 3‑9‑1985 which happened after the decision by the trial Court. In the circumstances, the impugned judgment of the High Court does not suffer from any legal infirmity. As regards Khasra No.5 which was purchased on 22‑6‑1977, no doubt, the deceased plaintiff was owner of contiguous property bearing Khasra No.6 as alleged by the learned counsel for the petitioners and proved from the record as well, but the defendant/respondent too was owner of contiguous property of Khasra No.4 and the suit for pre‑emption filed against it having been dismissed he had indefeasible title therein. The rights of the parties being equal, the judgment of the High Court whereby the suit of the plaintiff was dismissed qua Khasra No.5 is also legally unassailable. Resultantly, leave to appeal in both the petitions is refused and the petitions are dismissed. AA./M‑1812/S Leave refused.