P L D 1954 Peshawar 11 (PLP)

MUHAMMAD SHAFI, J.‑The sale of 23 kanals 10 marlas 3 sarsais of land, out of 141 kanals, bearing Khasra Nos. 1937/1 to 744 and 746, situated in village Darrah, Tahsil Swabi, by its owner Sher Muhammad in favour of Umar Khan, by a sale‑deed dated 19th October 1951, gave rise to a pre‑emption suit by Muhammad Khan, son of Sherbaz, who claimed that he was entitled to have the first offer of the sale for the reason that he was a co‑sharer in the Khata, and the vendee was not. He wanted to pre‑empt the land on payment of Rs. 600, and stated that the consideration of Rs. 1,100 mentioned in the deed was fictitious and bogus. Umar Khan defendant‑vendee contested the claim. He inter alia raised an objection that he had purchased the property along with the Shamilat, and since the plaintiff had not included Shamilat in his suit, therefore, it was liable to be dismissed on account of its being for partial pre‑emption. The plaintiff, on the other hand, claimed that while he had a superior right on account of being a co‑sharer in the Khata in which the land in suit was situated and had as such a preferential right of pre‑emption, he had no such right with regard to the Shamilat, and it was on account of that fact that he did not include the Shamilat land in the suit. Mr. Abdur Rashid Khan Sub‑Judge 2nd Class Swabi, held that the plaintiff was liable to include the Shamilat land in his suit even if he had no superior right of pre‑emption qua it, because a co‑sharer in the land is presumed to be a co‑sharer in the Shamilat too, and as such has a preferential right of pre‑emption in respect of both. He dismissed the plaintiff's suit with costs. There was an appeal against this order which was accepted by the Senior Sub‑Judge, Mardan on 23rd February 1953. He held that the plaintiff was not a co‑sharer in the Shamilat, and, therefore he was right in not including it in his suit, and on account of that reason his suit could not be dismissed. He granted plaintiff a decree for possession by pre‑emption of the suit land. on payment of Rs. 1,100 He left the parties to bear their own costs through out. The defendant ‑vendee has come up in revision to this Court. The plaintiff originally was not an owner in this village. He purchased the land in the Khata in which the land in suit is situated by two sale deeds dated 28th March 1950, and 30th Dec ember 1950. The plaintiff ‑pre‑emptor was asked by me to bring both these deeds in original which he did, and on their perusal I find that although the plaintiff purchased the land in this Khata, he did not purchase the corresponding share in the Shamilat of the village. It is thus clear that the plaintiff only had the land in the Khata and not the Shamilat. He consequently had a superior right of pre‑emption so far as the land was concerned, but had no such right with regard to the Shamilat. He was, therefore, within his right not to include the Shamilat land in the suit in question. The learned counsel for the petitioner, however argued that the mere fact that the plaintiff has a superior right of pre‑emption qua the land in dispute, he is entitled to bring a suit for the corresponding share in the Shamilat too. I am afraid I am not prepared to accept this contention, because the land and the Shamilat are two distinct properties, and if one is sold, it does not necessarily follow that the other is also sold therewith. If a person has a superior right of pre‑emption with regard to one, he cannot be held for that reason to have a superior right of pre‑emp tion in respect of the other as well. In order to succeed to both the properties the plaintiff must have a superior right of pre‑emp tion for both. I consequently agree with the learned lower Appellate Court that the plaintiff by not including the Shamilat land in the suit, cannot be non‑suited for having brought the suit for partial pre‑emption. The revision petition is dismissed, but in view of the difficult question involved in the case, I leave the parties to bear their own costs in this Court. Orders announced. A. H. Petition dismissed.