2017 PLP 124 (CLCN)

CH. MUHAMMAD IBRAHIM ZIA, J.

This appeal by leave of the Court is directed against the consolidated judgment of the High Court dated 23.2.2006 whereby the appeals filed by both the contestant parties have been dismissed.

2. Brief facts forming the background of this appeal are that respondents Nos.1 and 2 filed separate suits for possession on the basis of right of prior purchase in respect of land comprising Khewat No. 7, Khasra No. 33 measuring 1 kanal 8 marlas situated in Mozia Sarooah, Tehsil Sehnsa, against the appellant in the Court of Civil Judge, Sehnsa. The learned Civil Judge, Sehnsa, after necessary proceedings dismissed both the suits through consolidated judgment dated 26.9.2002 on the ground that the vendee, Muhammad Yaqub had improved his status by becoming co-sharer in the khewat during pendency of the suits. The contestant pre-emptors feeling aggrieved challenged the judgment and decree of the trial Court through separate appeals before the Additional District Judge Sehnsa on 21.8.2003. The learned Additional District Judge, Sehnsa vide judgment and decree dated 20.12.2003 while accepting both the appeals, set-aside the findings recorded by the trial Court to the extent of improvement in the status of vendee with the observation that under section 20-A of the Right of Prior Purchase Act, the improvement in the status during pendency of the suit was not permissible. The suit filed by Zaman Ali was decreed in his favour subject to depositing the decretal amount within the time specified by the Court. In case of failure in depositing the decretal amount by Zaman Ali, Ali Akbar rival pre-emptor's suit was decreed if the decretal amount is deposited by him in the specified time. The appellant and respondent No.2 feeling aggrieved challenged the judgment and decree of the Additional District Judge Sehnsa through separate appeals before the High Court. The High Court after necessary proceedings dismissed both the appeals through the impugned judgment, hence, this appeal.

3. Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the appellant-vendee, has seriously objected to the impugned judgments and decrees of both the lower appellate Courts and contended that the Courts below have failed to properly understand and appreciate the statutory provisions dealing with the subject matter. He mostly stressed on the point that the term "Corpus of the undivided immovable property" used in the special law i.e. Right of Purchase Act, is of much importance. According to his version, for exercising the right of prior purchase, the pre-emptor must have been recorded as co-sharer in the survey number of the property sold, whereas, respondent No.1 is not co-owner in the survey number of the property sold, thus, the judgments and decrees are based upon misconception of law and facts. He submitted that if at all any person was entitled for decree on the basis of pre-emption, he was the rival pre-emptor, Ali Akbar, being co-owner and not respondent No.1. He also contended that the judgment and decree of the trial Court in accordance with law. It is also contended that the vendee-appellant is co-owner in the property sold, thus, against him no one has got preferential right. He also submitted that according to documentary evidence, the appellant-vendee, owned the land adjacent to the suit property, thus, he is also "Shafi Jar" . In this regard, he referred to the document, Exh. "PE", the site sketch of the property. He further added that under section 14 of the Right of Purchase Act, the term "corpus of undivided property" used, has not been defined by law, thus, for this term the ordinary dictionary meanings shall be adopted. In this regard, he referred to the meanings assigned to this term by the Black's Law Dictionary and submitted that as Ali Akbar, rival pre-emptor has a hereditary right, therefore, he is co-sharer in each and every part and parcel of the "corpus of undivided property", whereas Zaman Ali, respondent No.1 has only acquired the propriety of specific survey number, therefore, he is only co-sharer in that specific number and not in the whole property. He submitted that the decree in favour of respondent No.1 is totally void and illegal, whereas if at any cost, the decree was required to be granted, it could be granted only in favour of Ali Akbar, who is co-sharer in the property. He placed reliance upon the cases reported as Riaz Ahmed v. Amin Baig and 6 others [PLD 1977 SC(AJ&K) 22], Habibullah v. Mahmood [1984 CLC 309] and Shamshad alias Shamma v. The State [1999 MLD 1293] in support of his version.

4. Conversely, M/S Sardar Muhammad Azam Khan and Ch. Muhammad Mumtaz, Advocates, the learned counsel for respondent No.1 forcefully defended the impugned judgment and submitted that the same is quite in accordance with the principle of law and justice which do not suffer from any illegality. The appellant has got no legal grievance to challenge the judgment. They submitted that respondent No.1 has proved his preferential right through cogent documentary as well as oral evidence. He is admittedly co-sharer in the Khewat. They further submitted that the arguments of learned counsel for the appellant that for exercising the right of pre-emption on the basis of co-sharer, one should be co-owner in the survey number, is against law. According to the statutory provision as well as principle of law enunciated by the superior Courts, the status of co-sharer is always determined on the basis of knewat and khata and not on the basis of survey number. They placed reliance upon the cases reported as Muhammad Hussain v. Hassan Muhammad and others [PLD 1984 SC(AJ&K) 122] in support of his submission.

5. We have considered the arguments of the learned counsel for the parties and also examined the record made available. First of all we would like to deal with the point raised by the counsel for the appellant that decree should be granted in favour of Ali Akbar, pre-emptor. According to the stated facts of the case, Zaman Ali and Ali Akbar, both were rival contestant pre-emptors and first appellate Court granted decree in favour of Zaman Ali with the condition that if he fails to deposit the decretal amount, respondent No.2 shall be entitled for decree of pre-emption. According to case history, Ali Akbar, pre-emptor challenged the propriety of the judgment of first appellate Court before the High Court but the concurrent findings recorded by the High Court have not been challenged by him. Thus, it is obviously clear that Ali Akbar by his conduct has accepted the concurrent findings recorded by the appellate Courts. Thus, the impugned judgments and decrees have attained finality to his extent. No doubt, the Court is vested with the powers if according to the facts of any case, for the ends of justice, relief has to be granted to a party who has not come in appeal, but in this case, there are two rival pre-emptors and failure of one pre-emptor to file appeal has created a legal right in favour of the other. Therefore, in such circumstances in presence of the party who has been given preference by the Court, relief cannot be granted to an absentee. Moreover, the appellant has to protect his own rights and he cannot litigate on behalf of pre -emptor against his own rights. Law does not recognize proxy litigation and in pre-emption suit where vendee comes forward to protect the rights of rival pre-emptor, inference can be drawn that such pre-emptor has filed suit in collusion with the vendee. Therefore, in such circumstances we are unable to agree with the argument of learned counsel for the appellant, therefore, the same stands repelled.

6. The other moot point raised by the learned counsel is that the status of a co-sharer will be determined on the basis of survey numbers and not on the basis of the estate or khewat number. When a person has acquired propriety rights through transaction in a specific survey number, he will be treated as co-sharer in that survey number and not in the whole khewat or estate, in our opinion, this argument is misconceived. According to settled law, the status of a co-sharer has to be determined on the basis of khewat, khatooni and Mahal. This Court in the case reported as Muhammad Malik v. Ch. Yaqoob Javed Batalvi and another [2004 CLC 882], while dealing with the specific proposition held as following:- "7...It is well settled principle of law that a person who becomes co-sharer by purchasing land out of one of survey numbers in khewat, he would be deemed co-sharer in whole of the survey number comprised in a khewat."

7. The next argument of learned counsel for the appellant that in law the term "in the corpus of undivided property" has been used which means only the survey number of the sold property and this term does not accept the connotation that it includes the whole khewat. This argument also is not acceptable. This Court in a latest judgment in an unreported case titled Muhammad Yousaf Khan v. Mirza Muhammad Hanif Khan and another (Civil Appeal No.5/2006, decided on 9.5.2013) has elaborated in detail this point specifically in the light of amended provisions of the Right of Prior Purchase Act. It will be useful to reproduce here the relevant portion of the judgment which reads as under:- "

6. The plaintiff specifically alleged that he has a superior right in respect of the land sold on the ground that he is real brother of the vendor and the vendee has not relationship with the vendor. The land was sold in the year 1997. The J&K Right of the Prior Purchase Act, 1993 BK, was amended in the year 1993. After the amendment of section 14, a party has no right of pre-emption on the basis of relationship. The original Section 14 has been amended vide amending Act No. XIX of 1993, dated 16.3.1993, therefore, the argument to the extent of being real brother of the vendor is not tenable. The vendee-defendant has no relationship with the vendor, however, he is also sharik Khata in the land. In the amended provisions of the Jammu and Kashmir Right of Prior Purchase Act, 1993 BK, the right of prior purchase in respect of agricultural land and village immovable property vests in shaft sharik and shaft sharik is defined in explanation 1 of section 14 of the Jammu and Kashmir Right of Prior Purchase Act, 1993 BK. The explanation is reproduced as under: '1: 'Shafi Sharik' means a person who is co-owner in the corpus of the undivided immovable property sold with other person or persons.' A plain reading of the explanation reveals that shafi sharik is a person who is a co-owner in the corpus of undivided immovable property sold. Section 14 of the Right of Prior Purchase Act has been amended vide Act No. XIX of 1993, dated 16.3.1993. Prior to the amendment the word used in the section was "mahal". For proper appreciation Section of the original Act is reproduced, which reads as under: '

14. Persons in whom right of prior purchase vests in respect of sales of agricultural land and village immovable property. Subject to the provisions of Section 13 of the right of Prior Purchase in respect of agricultural land and village immovable property shall vest-- (a) where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co-sharers jointly, in the persons in order of succession, who but for such sale would be entitled on the death of the vendor or vendors to inherit the land or property sold: (b) when the sale is of a share out of a joint property and is not made by all the co-sharers jointly:- Firstly ............................. Secondly ............................. Thirdly ............................. Fourthly: in the co-sharers, Clauses (a) and (b) exercise it then;-- Firstly

in the owners of the mahal wherein such agricultural land or property is situate; Secondly

in the tenants having the right of occupancy within the property or agricultural land that is being sold." A comparison of both the provisions would show that in the original Act the word used is "co-sharer in mahal". The word "co-sharer" has been substituted by the word " shafi sharik" and word "mahal" has been substituted by the word "corpus of undivided immovable property". The word "shafi sharik" has been defined in the explanation as a person who is a co-owner in the corpus of undivided immovable property sold. The word "mahal" has been defined by this Court in the case reported as Abdul Rehman v. Muhammad Afsar Khan [PLD 1978 SC(AJ&K) 156], wherein it was observed as under: 'From the arguments submitted by the learned Advocates for the parties it emerges out that the sole question for determination in the present case pertains to the effect of the grant of proprietary rights in favour of a tenant on the status and relation of his former landlord who, till the conferment of the proprietary rights upon the tenant, was cloth with superior proprietary rights over the land and whether he would continue to be joint owner in Khewat on the basis of his proprietary rights over the land, if any, under another survey number; namely No. 4849 which was formerly a part of Khewat No.

104. This would involve interpretation of certain vernacular terminology that is generally used in revenue record such as owner of `Mahal', 'Khewat', , and 'Khatooni', 'Mahal', according to the Concise Law Dictionary containing Urdu Words with English meaning by Doctor D. Parsad, means; An estate; a department; a parcel of land; separately assessed with the public revenue. A mahal is defined as follows: A mahal means

(a) Any local area held under a separate engagement for the payment of revenue; provided that- (1) If such area counts a single Village or portion of Village, a separate record of rights has been framed for such village or portion. (2) If such area consists of two or more villages, a separate record of rights has been framed for the entire area or for each of the villages or portions of villages included therein. (b) Any revenue free area which separates record of rights has been framed. The word "estate" under section 3(1) [4(9)(i)] of the Land Revenue Act has been given statutory meaning which is; 'estate means any area (a) For which a separate record of rights has been made; or (b) Which has been separately assessed to land revenue, or would have been so assessed if the land revenue had not been released, compounded or redeemed; or (c) Which the Provincial Government may, by general rule or special order, declare to be an estate.'

7. The proposition again came under the consideration of this Court in the case reported as Ghulam Begum and 10 others v. Khan Muhammad Khan and another [PLD 1984 SC(AJ&K) 38], wherein the words "Khewat" and "Khaata" were described as under:- '

18. The terms `khata' and 'Khewat' are generally misunderstood. Clause 10 of Section 4 of West Pakistan Land Revenue Act defines the 'holding' to mean the share of portion of an estate held by one land owner or jointly by two or more land owners. The vernacular equivalent of the term' holding is 'Khewat' and the tenant's holding is called 'khatooni' or 'Khata'. Sometimes the word 'Khata' is loosely applied to an owner's holding as well as tenant's holding.. Tenant's holding is technically called 'tenancy'. 19. `khewat' is equivalent to English word 'holding' and 'holding' under West Pakistan Land Revenue Act means a share or portion of an estate held by one owner or jointly by two or more land owners and the 'khewat' number is the number of the owner's holding as has been said by Col. Buck and Agarwal at page 9 of their book." The Mutation Work in the Punjab". Raja Afzal Khan at page 8 of his Land Revenue Book has described `Khewat' as equivalent to the English word 'holding'. Tenant's holding is technically called tenancy or 'Khatooni'......

8. Phraseology implied in section 14 makes it abundantly clear that the word "corpus of the undivided immovable property" has been substituted for the word "mahal" and the word "corpus of undivided immovable property" is synonymous of the word "mahal". The word "corpus of the undivided immovable property" means a Khewat/Khata of undivided property sold. Under section 14 of the Right or Prior Purchase Act, the right of prior purchase shall vest in respect of agricultural land and village immovable property in a shafi sharik..."

8. The next argument of learned counsel for the appellant is that the appellant has also got equal status as his immovable property comprising, survey No. 34 is contiguous to the pre-empted land. In this regard, he placed reliance upon the documentary evidence, Exh. 'PE'. No doubt in this document, survey numbers, 32, 33, 34 are shown contiguous but survey number 34 is situated in different khewat number i.e 19/19, whereas the immovable property bearing survey No.32 and the pre-empted land comprising survey No.33 are part of khewat No.7/7. Thus, it is clear that the appellant-vendee's immovable property is situated at different khewat number. According to statutory provision, for determination of pre-emptor's status as co-owner, the basic criteria is the corpus of undivided immovable property sold. As it has been observed hereinabove, that the "corpus of the undivided immovable property" sold is synonymous to the word "mahal". In the Law Dictionary, English to Urdu and Urdu to English, edition 2013, page 427, (By Ghulam-e-Mustafa Subilani Chishty, Advocate High Court) the word "mahal" is defined as under:- " (Mahal) An estate; a department; a parcel of land separately assessed with the public revenue. A mahal is defined as follows:- A mahal means- (a) Any local area held under a engagement for the payment of revenue; provided that (1) If such area counts a single village or portion of a village, a separate record of right has been framed for such village or portion. (2) If such area consists of two or more villages, a separate record of right has been framed for the entire area, or for each of the villages of portions of villages included therein. (b) Any revenue-free area for which separate record of right has been framed." Same like the word "estate" is defined at page 184 as" We have considered the arguments of learned counsel for the appellant relating to dictionary meanings of the word "corpus" as assigned in the Black's Law Dictionary with pronouncement, sixth edition, page 343, which reads as following:- "Corpus/Korpas/Lat. Body; an aggregate or mass (of men, laws or articles); physical substance, as distinguished from intellectual conception; the principal sum or capital, as distinguished from interest or income. The main body or principal of a trust. A substantial or positive fact, as distinguished from what is equivocal and ambiguous. The corpus deliciti (body of an offence) is the fact of its having been actually committed. A corporeal act of any kind (as distinguished from animus or mere intention), on the part of him who wishes to acquire a thing, whereby he obtains the physical ability to exercise his power over it whenever he pleases. The word occurs frequently in this sense in the civil law." But in our opinion, in the Black's Law Dictionary, the term has been defined in general sense whereas the meanings of this term as assigned after survey of case law in the hereinabove referred latest judgment of this Court and the dictionary meanings hereinbefore referred are most appropriate. Thus, according to dictionary meanings and survey of case law it is clear that the term "corpus of the undivided immovable property" used in relation to land according to system of revenue record prevailing in Azad Jammu and Kashmir is synonymous to khewat, thus, respondent No.1 has succeeded in proving that he is co-sharer/co-owner in khewat No.7/7. According to section 14 of the Right of Prior Purchase Act, right of pre-emption vests firstly in "Shafi Shank". As respondent No.1 has succeeded in proving himself as "Shafi Sharik", therefore, it is needless to discuss the right of pre-emption on the basis of contiguity of survey number which falls in category "C" i.e. as "Shafi Jar", therefore, contention of counsel for the appellant that he has equal status has no substance as he has not succeeded in proving to be co-owner in the khewat of sold property. For the detailed reasons recorded hereinabove, finding no force, this appeal stands dismissed with no order as to costs. ZC/76/SC(AJ&K) Appeal dismissed.