1980 PLP 692 (SCMR)

DORAH PATEL, J.‑One Fazal Azim sold some land in village Shaidu in Nowshera District for Rs. 2,500 to the petitioner by a registered sale deed dated 16th September, 1961. The respondent tiled a suit to pre‑empt this sale and claimed pre‑emption ' on the ground both of co‑ownership and contiguity. Although the petitioner con tested the suit, according to the judgment of the first appellate Court, he admitted in his evidence "plaintiff has his land con tiguous to it. I have no property contiguous to it. However, although this admission was very damaging to the petitioner's defence, he relied on evidence according to which the land sold by Fazal Azim was contiguous to Khasra No. 2804 which was described in the land records as "chair Mumltin Rasta Shamilat Deb Maqbuza Malikan". And, he proved that he was both a proprietor in village Shaidu and a ca‑sharer in the village shamilat, therefore, despite his admission, he resisted the pre‑emption suit on the sole ground that he was a co‑sharer in the Shamilat. It is not surprising that this plea did not appeal to the Civil Judge, Nowshera, who decreed the respondent's suit by his judgment dated 28th July, 1962. The petitioner challenged the judgment of the learned Civil Judge in an appeal in the District Court, Nowshera, which was dismissed by an Additional District Judge, therefore, he filed a revision in the Peshawar High Court. The petitioner's contention in his revision was that the village shamilat was property within the meaning of section 12 of the North West Frontier Province Pre‑emption Act, 1950 (hereinafter called the said Act). and that the pre‑empted land was contiguous to the said shamilar, therefore; even if the shamilat was a thoroughfare, he (the petitioner) was an owner within the meaning of section 12 of the said Act, and the respondent did not have a superior right to pre‑empt the sale in his favour. Now, it would appear that a similar plea was raised by parties in other cases pend ing in the High Court. Therefore, this question was referred by the Chief Justice to a Full Bench presided over by Qaisar Khan, J.. And, by his judgment dated 24th February, 1975, Qaisar Khan, J. held: ‑ "In view of all the above we are, therefore, of the opinion‑ that co. sharer in a thoroughfare can neither claim a right of pre‑emption on the said basis with respect to land sold by the co‑sharer nor can he defeat the superior right of pre‑emption of another claimed on the basis of contiguity. The question is, therefore, answered accordingly." Thereafter the revision of the petitioner came up for haring before another learned Judge of the Peshawar High Court, who by his judg ment dated 2nd February, 1976 dismissed the revision in the light of the judgment of the Full Bench. Hence this petition for leave. Mr. Fazali Elahi submitted that the learned Judges of the Full Bench had erred in holding that the petitioner was not an owner of contiguous property, despite the fact that he was a co‑sharer in the shamilat which was contiguous to the land in dispute in the petition. Now, although the petitioner was a proprietor in the village and a co‑sharer in the village shamilat, learned counsel admitted that the shamilat was used as a thoroughfare and the fnding of the High Court was that the thoroughfare was a public thoroughfare. Therefore, learned counsel vehemently submitted that the shamilar was not a public thoroughfare. However, the question whether the shamilat was a public thoroughfare or not is a question of fact, and. the finding of the High Court appears to be supported by evidence. In any case, we cannot grant special leave to reopen a finding of fact, therefore, learned counsel's next submission was that a village shamilat, even if it was used as a public: thoroughfare, was property within the meaning of section 12 of the said Act. There can be no dispute about the proposition submitted by learned counsel. But, because the shamilat was property, learned counsel's further submission was that the petitioner being a co‑sharer in tire shamilat was an owner of contiguous property within the meaning of section 12 of the said Act and the further submission of the learned counsel was that the finding to the contrary by Qaisar Khan, J., was erronoeus. Now, although, Qaisar Khan, J., rightly held that village shamilat) was property within the meaning of section 12 of the said Act, he further observed that the co‑owner of such a shamilat: ‑ "cannot be treated as owner of property for the purposes of pre emption under the N.W.F.P. Pre‑emption Act. Our reasons for coming to this conclusion are as follows: ‑ The dictionary meaning of a thoroughfare is a road or streets especially one through which much traffic passes. The common meaning of it is a path which every body has a right to use and whom nobody could obstruct in the said user. Now taking the meaning of the owner mentioned above, it is abundantly clear that a person who is a co‑sharer in a thoroughfare cannot claim himself as owner of property. Such a man can have no more right in the thoroughfare than any other person, even if that other person de not an owner in the shamilat of the village or the thoroughfare. Such a man cannot stop any person from using the thoroughfare and he cannot even transfer his right in the said thoroughfare to anybody because everybody, whether a co‑sharer or not, has the same right in the thoroughfare as he has. He has, therefore, no disposing power over the thoroughfare, either individually or collectively with the other co‑sharers. Furthermore, such a man cannot even sue for the partition of the thoroughfare for separating his share of the thoroughfare. The ownership of such a man there means nothing and such an ownership is, therefore, evidently not contemplated by section 12." Mr. Fazali ‑Elahi is aggrieved by these observations and he drew our attention to the fact that the judgment is one of first impressions. That is so and this Court has sometimes granted leave against judgments based on first impressions only. However, although 'we have heard learned counsel at length, we are in respectful agreement with the observations of Qaisar Khan, J., and in our humble opinion, no other view is possible. Additionally in holding that persons in the position of the petitioner were not owners of property within the meaning of section 12 of the said Act, Qaisar Khan, J., further observed: ‑ "Besides, if such a persons is considered as owner of property and allowed to pre‑empt or resist pre‑emption on such basis, then it will be against the spirit of the pre‑emption law and will lead to absurd consequences. The object of the Pre-emption is to exclude strangers from acquiring land in a homogeneous society and if such a man is considered an owner of property, then the aforesaid object would be defeated. This can best be illustrated by examples." Learned counsel also criticised these observations, but we see no reason to disagee with the well‑considered view of Qaisar Khan, J. (we say so with respect). In any event as the petitioner cannot possibly claim to be an owner of contiguous property within the meaning of section 12 of the said Act, we are satisfied that his revision was rightly dismissed. This petition, therefore, is without merit and is dismissed. Petition dismissed.