P L D 1961 (W (PLP)

ABDUL HAMID, J.‑-This is a defendant's appeal against the judgment of the Sub‑Judge First Class, Peshawar, dated the 15th of February 1958, by which a decree for the possession of a house was passed against him.

2. A house situated in Muhallah Tura Baz, Peshawar City, was in the ownership of one Mst. Farooq Sultan, who by a sale deed registered on the 1st of October 1955, sold it to Allah Bakhsh Khan defendant for a sum of Rs. 7,

500. Allah Bakhsh Khan has a house contiguous to this house.

3. This sale was pre‑empted by Hakim Muhammad Abdullah on the allegations that he had also a house contiguous to the house sold, but his right of pre‑emption was superior to that of the vendee on the following further grounds :‑ (1) The water of the pre‑empted house passed through a drain which was in the plaintiff's house and that drain carried the water of both houses into the municipal drain. (2) The ventilators of the plaintiff's house opened on the pre‑empted house. He stated that the sale price was Rs. 5,725, and he claimed possession of the house on payment of that amount.

4. To this suit the vendee's answer was that the plaintiff's right of pre-emption was not superior to his as both of them were owner of contiguous properties. Estoppel was also attributed to the plaintiff and the sale price was claimed to be Rs. 8,000.

5. The trial Judge, after recording evidence, came to the conclusion that the plaintiff had preference over the vendee on the ground that the drain of his house carried the water of the sold house into the public drain. He was also of the opinion that the ventilators of the plaintiff's house opened on the house sold and drew light and air from it. On that ground too he considered his claim to be superior to that of the vendee. With respect to the sale price, he was of the view that a sum of Rs. 7,500, as stated in the sale deed, was in fact the price fixed and paid. He, therefore, granted to the plaintiff a decree for the possession of the house sold on payment of Rs. 7,500.

6. In this Court, the plaintiff's preferential right of pre emption was challenged. It was contended that the plaintiff was not the owner of any house contiguous to the pre‑empted house, that the drain in his house did not carry any water of the pre empted house into the public drain that the ventilators of his house do not open on the house sold, and even if they did, no right of pre‑emption could accrue to him from the existence of those ventilators.

7. We have gone through the ‑ evidence in this case and are of opinion that the plaintiff‑ pre‑emptor is the owner of a house contiguous to the house in dispute. The plaintiff pre‑emptor entered the witness‑box and stated that he was the owner of the house contiguous to the house sold. It is true that be did not produce any title deed in support of this assertion, but besides his own statement, he depended in support of this assertion, on a recital made in the sale deed of 1st October 1955, by which the house under pre‑emption was sold to the vendee. In that deed when describing the boundaries of the pre‑empted house, plaintiff was stated to be the owner of the house contiguous to the pre empted house on the south and the west. In rebuttal no evidence was produced to show that this recital in the sale deed was incorrect or that the plaintiff's own evidence on this point was false. There is thus unrebutted evidence in support of the assertion that the plaintiff‑pre‑emptor is the owner of the house contiguous to the house sold.

8. But as the vendee himself is also an owner of the house contiguous to the house in dispute, towards the east, on the ground of contiguity, both the pre‑emptor and the vendee stand on the same footing. On that ground the plaintiff is not entitled to preference over the vendee.

9. But the pre‑emptor claims preference over the vendee on the ground that he was a participator with the owner of the pre‑empted house in the appendage of the right to discharge water. Both he and the owner of the sold house discharged water through the same drain which passed through his house. A participator in the appendage of the right to discharge water has precedence over the owner of contiguous property under part North‑West Frontier Province is part thirdly of that section rank below participation of appendages.

10. This preferential right of the plaintiff s was challenged on the ground that no such drain in the plaintiff s house was in existence and even if any such drain did exist that drain was closed by the vendee after he had purchased the house. The plaintiff pre-emptor ceased to be a participator in that appendage and by the loss of that qualification which he was bound to retain till the date of the decree under section 16 of the N.-W.F.P Pre-emption Act he has lost the right to claim preference over the vendee.

11. As regards the existence of the drain there is sufficient evidence on the record that one was in existence for a long time prior to the sale. A plan was prepared by the Municipal Overseer which was attached to the plaint and in that plan a drain was shown. Apart from this, we from this Court issued a commission to the Senior Sub‑Judge, Peshawar, to inspect the spot and report whether any such drain was in existence and whether it had been clesed, and if so, when. The Senior Sub‑Judge inspected the spot and reported that a drain was in existence in the plaintiff's house which appeared to be very old and which used to take the rain and other surplus water of the pre‑empted house and carried it and that water of the plaintiff's house into the public drain and the month of that drain on the pre‑empted house appeared to have been recently closed.

12. We are of opinion that there is sufficient evidence on the record to show that a drain in the plaintiff's house was in existence long before the sale of the house. It received the water of the pre‑empted house and alongwith its own water discharged it into the public drain. This drain provided an appendage to the pre‑empted house and the owner of the two houses were partici pators in this appendage.

13. There is further support for this conclusion in the evidence that the pre‑empted house and the house of the plaintiff were originally parts of one house. That house was the property of the three brothers, Umar Bakhsh, Rahim Bakhsh and Pir Bakhsh. They divided that house into three houses, one of which \a as purchased by the plaintiff and the second fell into the owner ‑hip of Mst. Farooq Sultan vendor, who sold it to the vendee. As according to the Senior Sub‑Judge's report, there is no other outlet in the pre‑empted house on any other side for the discharge of its water into the public drain, there is reason to believe that gone in the plaintiff's house was made, when the three houses were joint, to carry its water through the plaintiff's house into the public drain outside.

14. The next contention of the vendee was that the appendage of the right to discharge water mentioned in section 1 2 of the North‑West Frontier Province Pre‑emption Act confers right of pre‑emption upon the owner of the dominant tenement. The owner of the servient tenement derives no right of pre‑emption at all. The plaintiff‑pre‑emptor is the owner of the servient tenement and has no right of pre‑emption in respect of the sale of the dominant tenement. For this proposition he relied on Abdur Rahman v. Muhammad Ismail (A I R 1947 All. 85) and Karim v. Piyo Lal Bose (I L R 28 All. 127).

15. These authorities, no doubt concede to the owner the dominant tenement a right of pre‑emption in respect of servient tenement and on the language of the law that should doubt be so, because the owner of the dominant tenement is a participator in the appendage with the owner of the servient tenement. But there is nothing in these authorities to show that the owner of the servient tenement is precluded from claiming such a right in respect of the dominant tenement. As against that, there is a clear authority in I L R 24 Bom. 414 for the view that the owner of the servient tenement has a right of pre‑emption in) respect of the dominant tenement. In that case right of pre emption was conceded to the owner of servient tenement in respect of the sale of the dominant tenement.

16. The right of pre‑emption has foundation in section 12 of the North‑West Frontier Province Pre‑emption Act. Part secondly of that section confers that right upon the participator in the appendage of the right to discharge water. In respect of a drain which discharges water of two or more houses the owner of each house is a participator with the owner of the other house in the right to discharge water, and has a right of pre‑emption in respect of the property of the other participators in that right. It was for that reason that I L R 24 Born. page 414 the owner of servient tenement was held to be a participator with the owner of the dominant tenement in the discharge of water and a right of pre‑emption was conceded to him.

17. The law of Pre‑emption has its origin in the rules of Muhammadan Law. In amending the North‑West Frontier Province Pre‑emption Act of 1950 the main object was to bring the grounds of pre‑emption in the Act into conformity with the grounds of pre‑emption recognized by Muhammadan Law, and the three grounds mentioned in this section are the three grounds on which Muhammadan Law permits pre‑emption.

18. Reference to Hedaya by Hamilton (page 548), 1957 Edition, will show that the rules of pre‑emption in Muhammadan Law emerge from the traditions of the Holy Prophet. He is reported to have said "A partner in the property has precedence over a partner in the appendage, and the partner in the appendage has precedence over the neighbour." These are the three classes of pre‑emptors and they have been described, as shaft‑ul‑shareek, a co‑sharer, shaft‑ul‑khuleet, a participator in appendage, and shaft‑ul jar, a neighbour. The first pre‑emptor in the order has been placed in part firstly of section 12 of the North‑West Frontier Province Pre‑emption Act, the second in part secondly and the third in part thirdly.

19. With respect to the pre‑emptor of the second class, to which the plaintiff lays the claim, the Prophet's description of him i is as a "participator in the appendage", i.e., a participator in the rights attached to the property, like one of water or way.

20. Right of pre‑emption has been conferred upon a participator in appendage because he is also considered to be a co‑sharer in a part of the property and that part lies in the right of way and right of water attached to the property. The Arabic) word used for the participator in appendage is " Khuleet" which means a person whose right is mixed up with the right of the others. It is for that reason that in the Pre‑emption Act the word "participator" has been retained.

21. On this subject the author of Hedaya Hamilton's Trans lation, 1957 Edition, at page 548 says: "The conjunction occasioned by a partnership in the property itself is of all others the strongest ; and next to it is that occasioned by partnership in. the appendages since here the party participates in the immunities (i.e., appendages of the property) which is not the case with a neighbour."

22. The right of pre‑emption in the co‑sharer (shareek) and in the participator of appendage springs from the same source. Both are partners, the one co‑sharer in the property itself, and the other, participator in the appendages attached to the property. There is a partnership in both the cases ; in the case of a co sharer there is partnership in the property itself, and in the case of a khuleet there is partnership in the rights or benefits attached to the property, namely, the right of common passage or the right to discharge water upon the property or through a common drain. In the Hedaya, the original text, runs as follows :‑ (The right of pre‑emption vests in the participator in the property itself, then in the participator in the rights attached to the property, and then in the neighbour.)

23. He further says in the original text :‑ "(The conjunction (i.e., partnership) in the property is strongest because it is partnership in every part of it. There after is conjunction (i.e., partnership) in the rights because it is partnership in the benefits attached to the property." The benefits attached to the property mentioned in this text are the 'benefit of right of passage and the benefit of the right of water.

24. We have in the case in hand a participator in the appendage of the right to discharge water. It is obvious that the owner of servient tenement and the owner of the dominant tenement are both participators in the right to discharge water if the water of the two properties passes through a drain common to both in which each of the two discharge his water, irrespective of the fact in whose property the drain exists Both are participators in the right and each has a right of pre‑emption against the other. Tyabji on page 471 of his Book, Muhammadan Law, says :‑- "It is not necessary that the subject of pre‑emption should mutually be dominant and servient heritages if the owners participate in the beneficial enjoyment of the appendages referred to, each becomes the khuleet of the other." Similarly, Amir Ali, on page 601 of his Muhammadan Law, 2nd volume, (1904 Edition), says in respect of khuleet:-- "In the case of Chand Khan v. Niamat Khan 3 B L R A C 296, the owner of a piece of land, through which the land in respect of which the right of pre‑emption was claimed receive irrigation, was held entitled, and correctly on principle, to a preferential right to purchase against a mere neighbour. In other words, the owner of a dominant tenement is entitled to a right of pre‑emption in respect of the servient tenement and vice versa, in preference to a person claiming on the ground of vicinage."

25. It will appear from the perusal of Hedaya that the right of pre‑emption has been conferred on co‑sharers for the K avoidance of inconvenience which a co‑sharer expects from another, the inconvenience of claiming partition of the joint property. He says :‑ "Besides, the existence of the right of Shaffa is repugnant to analogy, as it involves the taking possession of another's property contrary to his inclination ; whence it must be confined solely to those to whom it is particularly granted by the law. Now, it is granted particularly to a partner ; but a neighbour cannot be considered as such ;for the intention of the taw, in granting to it a partner, is merely to prevent the inconveniences arising from a division ; since if the partner were not to get that share which is the subject of the claim of shaffa ; a new purchaser might insist upon a division, and thereby occasion to him a great deal of unnecessary vexation."

26. If avoidance of inconvenience is a consideration for the grant of this right, then it tends to the avoidance of inconveinience if a burden of one property attaching to another property, like right of passage or discharge of water, is removed by allowing the owner of one property to become the owner of the other property. The burden stands removed if the owner of one tenement, dominant or servient, becomes the owner of the other.

27. We, for the reasons stated above, have no manner of doubt that participators in the appendages of the right to discharge water are all those persons who discharge their water through a common drain, irrespective of the fact on whose property the drain stands. Each of the two participators has a right of pre‑emption against the property of the other, the owner of the servient tenement has such right against the dominant tenement, and the owner of the dominant tenement against the servient tenement. The plaintiff as owner of servient tenement has a right of pre‑emption against pre‑empted house.

28. The vendee, in order to defeat this additional claim of the pre‑emptor, made an attempt to show that the water of the pre‑empted house does not pass through the plaintiff's house, but passes through a drain in his own house to the east ; but he was unable to produce any evidence in support of that assertion. The Senior Sub‑Judge, who visited the house under a commission issued from this Court, stated that there was no passage in the vendee's house through which the water of the pre‑empted house could pass out of it. In fact, the situation was such that it was impossible for the vendee's house to take the water of pre empted house and threw it into the public drain.

29. We are, therefore, of opinion that on the evidence on record the plaintiff pre‑emptor has succeeded in showing that there is a drain in his house, which is about forty years' old. It used to receive rain and other surplus water of the pre‑empted house and along with the water of its own house threw it into the public drain outside, The drain which discharged the water of both the houses was common to both and the owner of the pre‑empted house and the plaintiff were participators in the right to discharge water. They were participators in this appendage and as participators in that appendage each of them has a right of pre‑emption in respect of the property of the other. On this ground the plaintiff was entitled to precedence over the vendee.

30. The learned counsel for the pre‑emptor further claims preference over the vendee on the ground that the ventilators of his house open on the pre‑empted house. This is, no doubt so, and the Senior Sub‑Judge, who in the discharge of commission visited the house, supported this assertion. He said that there were three apertures in the plaintiff's house which drew light and air from the pre‑empted house.

31. But we are of opinion that no right of pre‑emption can be claimed under section 12 of the North‑West Frontier Province Pre‑emption Act on the ground of easement of light and air. The language of part secondly of section 12 of the said Act p enumerates two immunities only, one is of the right of way or passage and the other of the right to discharge water. It runs as follows :‑ "Secondly, in a participator in immunities and appendages, such as a right of way or a right to discharge water." The language of this part has been borrowed from Article 181 of Mullah's Muhammadan Law, 1944 Edition, where a right of pre‑emption in shaft‑i‑khalit has been expressed in the following:

"181 (2) A participator in immunities and appendages, such as a right of way or a right to discharge water."

32. It has been contended by the learned counsel for the pre‑emptor that immunities and appendages mentioned in 'part secondly include other easements as well, like right of receiving air and light, and the two rights mentioned, the right to discharge water and the right of way are by way of illustration.

33. We find that in the Hedaya on page 548 with respect to khuleet it has been said that be is "a partner merely in the road or the rivulet": With respect to the same matter, Baillie in his Digest of Muhammadan Law on page 481 says that a khuleet is "a partner in its right, as of water, or way", and in the footnote he says:

Though rights of water and way lire given as examples it does not appear that khuleet in any other right than these has the right of pre‑emption."

34. That appears to be the correct view. If we go to the origin of the right which lies in the Hadith, then a khuleet has been stated to be a participator in appendage only, and not a p participator in immunity. There is no mention of immunities in Hedaya. Mr. Mulla appears to have inserted it with appendage as a synonym. It is more correct to say that there can be participation between two or more in the right of passage and the right to discharge water. But it is incorrect to say that there can be participation between two in the right to receive light and air. A person who receives light and air from the house of another person is not a partner with him in the enjoyment of the right of light or air. In fact he receives light and air from the other man's property and not with him from the same source. He is the recipient of this facility from him and is not his participator from a common source. The first receives light and air for itself and transmits them to the other. If a person has a ventilator or s aperture in the room of his neighbour and receives light or air from it he does not share light or air with him but receives it from him. The owner of servient tenement receives light and air from the sky and transmits it to the owner of dominant tenement. It is for this reason that no case of light or air has been mentioned in the two standard books of Hamilton and Baillie and do case of light or air has been cited by them.

35. We are of the view that the language of the Hadith from which the khuleet derives his right is in accord with the conclusion that the right of khuleet does not go beyond the right of passage or way and right to discharge water. It is out of accord with the right to receive light and air. According to the Prophet's language the right resides in the participator of the appendage to the property. Two or more persons can be partners with one another in the right of passage over a land or in the right to discharge water upon a land. But if one receives light or air from the other, he is not in partnership with him in the receipt of the light or air. In fact he receives from him which the former receives from the sky and then transmits it to him.

36. In the text of section 12 of the North‑West Frontier Province Pre‑emption Act as originally drafted, the word "easement" was inserted, but by an amendment, it was dropped out, because it was discovered that other easements, besides those of right of way and water were not sources of pre‑emption, according to Muhammadan Law, and as the framers of the Act intended to confine the law of pre‑emption to the rules of Muhammadan Law, they did .not travel beyond those rules. These two appendages are exhaustive and not illustrative.

37. In fact this question is not material in this case in view of the fact that the plaintiff‑pre‑emptor has already been found, in the preceding paragraph, to be entitled to pre‑empt the property sold on the ground that he is a participator with the owner of that property in the right to discharge water.

38. The learned counsel for the vendee further said that if the pre‑emptor had the right of pre‑emption on account of his being a participator in the right to discharge water through a common drain, he has been deprived of that right by the closure of the drain by the vendee after he acquired the house by purchase. R The qualification which has been alleged to be the source of pre emption is no longer in his possession. He has been deprived of that qualification which he was bound to retain till the date of the decree, and a decree is not permissible to him under section 16 of the Pre‑emption Act.

39. We are of opinion that section 16 of the Pre‑emption Act is not applicable to a case like this. A right which was the property of the pre‑emptor could not be destroyed by the unilateral act of the vendee. Section 16 of the Pre‑emption Act only enables a vendee to claim preference over the pre‑emptor by acquiring similar or higher qualifications for himself. It also entitles him to preference if the pre‑emptor by his own act divests himself of the qualification on the strength of which he laid the claim to the s property. But the vendee cannot by his own act destroy the plaintiff's right, specially a right which the vendee can legally claim, if destroyed. This plea has no force.

40. With regard to the price, the sale deed states that the bargain took place at Rs. 7,500 out of which Rs. 5,725 were paid before the Sub‑Registrar, Rs. 1,500 were received as advance money, and Rs. .275 were paid to the vendor for incurring other expenses, including the price of stamped paper. There is no evidence of the further payment of Rs. 5,00 as claimed by the vendee. This payment could not cover the expenses of stamp and registration because such expenses are covered by the advance of Rs.

275. The price of the house was correctly fixed by the trial Judge at Rs. 7,500.

41. The decision of the trial Court in favour of the plaintiff‑pre‑emptor was correct and is being upheld. This appeal is dismissed with costs. HABIBULLAH, J.‑

I agree. K.M.A Appeal dismissed.