1994 PLP 641 (CLC)

Sh. Naveed Shehryar for Appellant. Nemo for Respondent. Date of hearing: 13th November, 1993. Unsuccessful pre‑emptor is in second appeal before this Court from the judgment and decree of learned District Judge, Jhang, dated 17‑10‑1972 by which pre‑emption decree passed by the learned trial Court in his favour on 10‑1‑1972, was reversed for want of superior right of pre‑emption in him. Facts giving rise to this second appeal briefly set out are:‑ Zahid Ali was owner of 46 Kanals, 13 Marlas of land, in Khasra Nos.1969, 2038/Alif, 2038/Min of Khata No.72/Min in revenue estate of Sheikhan in Tehsil Chiniot. By Mutation No.408, attested on 23‑8‑1969, he sold above piece of land to Fazal Haq, Abdul Haq, Khurshid Ahmad sons of Allah Ditta for a sum of Rs.6,

000. Appellant claimed pre‑emption in respect of this sale. He asserted his superior right of pre‑emption on account of being a co‑sharer in the joint Khata, out of which the land in dispute was sold. Pre‑emption suit was instituted on 2‑9‑1970, in the Court of Civil Judge at Chiniot. Upon being served, vendees entered defence and submitted a joint written statement. Superior right of pre‑emption claimed by the appellant on the ground of co‑ownership was controverted. It was asserted that Salam Khasra numbers were purchased and the appellant had no share in them. The trial Court settled appropriate issues on 19‑12‑1970. Issue No.l pertained to superior right of pre‑emption. Other two issues related to fixation of the sale‑price and its market value. After settlement of issues, parties gave evidence. Upon its review, learned trial Court found for the appellant and decreed his suit, subject to payment of Rs.3,400 as sale price of the land to be paid by him on or. before 12‑2‑1972, failing which the pre‑emption suit was deemed to have been dismissed with costs. It was held that the appellant was a Sharik Khata, and, as such was possessed of better right of pre‑emption qua the vendees. As for ownership of the land in the revenue estate, both were found at par. Vendees preferred an appeal to learned District Judge, Jhang and succeeded in having the judgment and decree of the trial court reversed in their favour. It was held in appeal that the appellant was not a co‑sharer in the land purchased by the respondents. On this score, the decree passed by the trial Court was reversed and pre‑emption suit instituted by the appellant was dismissed. From the judgment and decree given in appeal, appellant came up in further appeal to this Court. It was admitted to hearing on 6‑7‑1973. Sole point surviving for decision in the appeal was, whether the appellant was a co‑sharer in the land purchased by respondents. Entries in Revenue Records and the oral evidence adduced at the trial clearly belied the appellant's assertion of co‑ownership of the land in dispute with the vendor. Exh.P.l‑copy of Jamabandi for the years 1967‑68 revealed that that Khasra Nos.1969 (8 Kanals 18 Marlas), 2038/Alif (9 Kanals), 2038/Min (28 Kanals, 15 Marlas) measuring 46 Kanals, 13 Marlas were owned by Nihal Singh and others and were in possession of Rehabilitation Commissioner through non occupancy tenants. Kafiyat column of the Jamabandi showed that by Mutation No.384, sanctioned on 21‑7‑1968, non‑Muslims' evacuee rights in the land were transferred to Central Government ‑of Pakistan. It further showed that by Mutation No.407, attested on 18‑6‑1969 on the strength of a registered deed, ownership rights in the aforesaid three Khasra numbers were transferred in favour of Zahid Ali son of Captain Abid Ali vendor. Further, by mutation No.408, attested on 23‑8‑1969, this piece of land was sold by Zahid Ali to the aforementioned vendees. Above three mutations were noticed in red ink in the Kafiyat column of Exh.P.l. These Khasra numbers were part of Khata No.72/Min and were comprised in Khautuni Nos.543/Min, 581 and

582. The Jamabandi further showed that 71 Kanals, 15 Marlas of land of Khata No.72/Min in Khatuni Nos.588, 589 and 590 were also owned by Nihal Singh etc. and was in possession of Rehabilitation Commissioner through non company tenants. Exh.D.5‑copy of Mutation Ne.407 indicated sale of Khasra No.1969(8 Kanals, 18 Marlas), 2038 (37 Kanals, 15 Marlas) alongwith number of other Khasra numbers by Central Government in favour of Zahid Ali. The mutation was based on registered deed dated 21‑5‑1969. Appellant was allotted specific Khasra numbers from the evacuee land from Khata No.72/Min comprised in different Khautunis. He himself conceded in his statement as P.W.1 that he was not a co‑owner in Khasra Nos.1969, 2038/Alif and 2038/Min but he still claimed to be a joint Khata‑Dar, because the land sold and the land allotted to him fell in a single Khata. On record, there was no doubt that the land in Khata No.72 belonged to non‑Muslim evacuees. In course of time, it was acquired and vested in Central Government free from all the encumbrances. Two Khasra Nos., namely 1969 and 2038 alongwith number of other Khasra numbers were sold by Central Government to Zahid Ali, who in turn made sale of the land in dispute. Co‑ownership was a bilateral legal relationship. Appellant was not co‑owner with Zahid Ali in the land purchased by him from the Central Government and sold to the vendees. Nor was Zahid Ali a co‑owner with appellant in specific Khasra numbers of the evacuee land allotted to and settled upon him. Each was exclusive owner of specific Khasra, numbers of the land. Judgment of their Lordships of the Supreme Court m ,q Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9 proceeded on distinguishable facts and was not helpful to the appellant. In this case, the sale was from Khana‑Kasht which was not the case in the instant case. In my opinion, learned District Judge rightly read the entries of the Revenue Records and correctly applied the law to them for holding that the appellant was not a co‑owner either with the vendor or the vendees of the land in dispute. Upon this view, second appeal has little merit in it. In result, it is dismissed. Since the respondents were not represented at the hearing, I shall make no order as to costs of this appeal. Records be returned, AA./N‑192/L Appeal dismissed.