P (PLP)

S. A. RAHMAN, J.‑This is a Letters Patent Appeal from an order of a learned Single judge of this Court by which he allowed Regular Second Appeal No, 2409 of 1946. The material facts are as follows:‑

. Allah Ghulla defendant No. 1 in the suit out of which this appeal has arisen, sold 6 kanals and 4 marlas of land bearing kharsa No. 412 in village Pura Neka, tehsil Sailkot, together with his one‑fourth share in a well bearing khasra No. 1 min, situate in village Johdewali to Pasanda deceased, father of Allah Din, Hasham and Shaffi appellants in this appeal, by a registered sale‑deed, dated the 27th March 1944. Jan Muhammad and Sultan, sons of Sawan instituted a suit to pre‑empt that sale. The trial Court granted them a decree for possession of the property sold, en payment of Rs. 6,000, which was the price mentioned in the sale deed. On appeal, the learned Senior Subordinate Judge, Sialkot, held that the plaintiffs could not pre‑empt the sale of one‑fourth share in the well, situated in village Johdewali, and, therefore, the decree granted was varied so as to confine it to the land sold in Pura Neka, on payment of Rs. 5,250, a deduction of Rs 750 from the consideration being made on account of the one‑fourth share in the well in Johdewali. The learned Single judge reversed the decision of the lower Appellate Court and restored the order of the trial Court, in second appeal. The sons of the vendee there fore, have appealed under clause 10 of the Letters Patent. It is common ground between the parties that the plaintiffs pre‑emptors are owners in village Pura Neka, but not in village Johdewali. Apparently, khasra No. 1 ' of Johdewali, in which Chah Pasandewala is situate, and the 'rights of irrigation from which were transferred to Pasanda, adjoins the land in Pura Neka which was sold. along with it. This land in Pura Neka was being watered from Chah Pasandewela. The learned judge in Chambers took the view that the vendor was not an owner in that well, but had merely the right to irrigate his land in Pura Neka from that well, and this right was a mere.‑ appendage to the land sold. This finding, it is contended by learned counsel for the appellants, is erroneous. In the sale‑deed. Exh. D. 1, the vendor recited that he was owner of 6 kanals and 4 marlas of land bearing khasra No. 412 in village Pura Neka, and of a one‑fourth share in 1 kanal 10 marlas of land bearing khasra No 1 min in Johdewali, in which there was situate Chah Pasandewala. He purported to transfer both these properties by this sale‑deed. In the subsequent part of the document, however, he made it clear that he was only selling his one‑fourth share in the well Pasandewala and the vendee would have nothing to do with the remaining area of 1 kanal and 10 marlas comprised within khasra No 1 min. It was explicitly added in the end‑that the recital in the previous portion of the deed to the effect that the vendor was owner of one‑fourth share in 1 kanal and 10 marlas of land in Johdewali was incorrect, and that the vendor merely owned one‑fourth share in the well Pasandewala which he was transferring along with the land located in village Pura Neka. The learned judge in Chambers has observed that the document is not happily worded. He came to the conclusion that the vendor was not the owner in the well at all but had mere ly the right to take water from that well. In this connection he referred to a copy of the Jamabandi of village Johdewali on the file, relating to the year 1941‑42, which shows that Pasanda alone was recorded as the owner in possession of khasra No. 1 bearing an area of 31 kanals 16 marlas, out of which the well occupied an area of 10 marlas. This is the document Exh. P.

3. There is, however, another document on the file in the shone of Exh, P. W. 2/1, which is also a copy of the same Jamabandi, but under which the patwari has given a note to the effect that, according to an entry in the Lal Kitab Naqsha No. 1, in the remarks column, for the year 1.940‑41, a well had been sunk at the expense of Rs. 1,000 by Pasanda, son of Allah Bakhsh and Allah Ghulla son of Allah Din. In the ownership column, of the Jamabandi, however, Pasanda alone is recorded as the owner in possession. It would, therefore, appear to be correct that Allah Ghulla was not an owner of the site in which the well was sunk, but that he had acquired the right to share the water of the well to the extent of one‑fourth with Pasanda. The question still remains to be decided whether this right to take water from the well was a mere appendage to the land in Pura Neka belonging to the vendor, which was; undoubtedly, irrigated from that well. With all respect to the learned judge in Chambers, it appears to us that his finding that this was a mere appendage to the land in question is not borne out by the material on the record. It seems that the vendor was possessed of two properties, one, the land in Pura Neka, and the other, his right to take water from Chah Pasandewala situated in village Johde wali. There appears to be no warrant for holding that this was a right of easement enjoyable with the Pura Neka land.' It happened that the two properties vested in one man, and, therefore, he was irrigating the land in Pura Neka by virtue of his right to take the water from Chah Pasandewala. It does not mean, necessarily, that the right of ownership in the land and the right to take water from the well were not serverable. No indissoluble link has been established between the two properties in this case. Water right are immovable property for they are rights to water which is attached to the earth. Reference in this connection may be made to Alam Sher v. Ram Chand and others (11 P. R. 1898) and Abdul Qaiyum v. 57ohd. Haroon (A. I. R. 1942 Peshawar 18). In the latter authority it was even laid down that water rights which were sold independently of the land to which they originally belong ed would become village immovable property as defined in section 3(2) of the Punjab Pre‑emption Act. We need not express an opinion on this point as, whatever the nature of the immovable pro- party in question may be, it is clear‑that being situate in Johdewali, the plaintiffs‑pre‑emptors were out of Court concerning that pro perty. The only ground, on which the sale was pre‑empted in this case, was that they were the owners in the estate in which the property was situate, while the vendee was not. Learned counsel for the respondents invited our attention to the decision in Jiwan v. Nawab (95

1. C. 258). In that case it was held that where a particular plot of land with right to irrigate from the well is sold, it cannot be said that the sale transfers any more rights in the well than the right to take water from it and a co‑sharer in such well has no right to pre‑empt the sale. The authority is not apt as tae facts here are different. No doubt there is a general rule that in pre‑emption cases, the pre‑emptor, by his right of substitution, must take over the whole bargain. This principle, however, is subject‑to certain limitations. One obvious limitation is imposed by the extent of the pre‑emptor's right. The pre‑emptor can only sue in respect of that part of the bargain over which he can assert his superior right as against the vendee. Of course, he cannot omit to claim any of the property comprised in the bargain to which his right of pre‑emption extends. See inter alia Shahu v. Haku and others (44 P. R. 1900), Ram Rakha Mal v. Devi Das and others (89 P. R. 1905). We, therefore, hold that the decision of the learned Senior Sub‑.Judge was correct in this case. We allow the appeal, set aside the order passed by the learned Judge in Chambers, and restore that of the learned District Judge. In view of the nature of the question involved, we leave the parties to bear their own costs in this Court. A.H Appeal allowed.