2002 PLP 1974 (CLC)

(ii) Whether the deficiency in court‑fee has not been made up within time, if so, its effect? OPD. (iii) Whether the plaintiff is estopped by his conduct from instituting the suit? OPD. (iv) Whether the suit is barred by time? OPD. (v) Whether the plaintiffs have got superior right of pre‑emption qua the vendee‑defendant, if so, what is their inter se superiority? OPD. (vi) Whether the sum of Rs.50,000 was fixed in good faith or actually paid as the sale price of the suit‑land? OPD (vii) If not, what was the market value of the suit land at the time of the impugned sale? OPD. (viii) Whether the vendee‑defendant has made any improvements on the suit‑land, if so, to what extent and what is its effect? OPD. (ix) Relief.

2. The learned trial Court vide judgment and decree, dated 7‑4‑1981 dismissed the suit of Muhammad Saleem Akhtar and decreed the suit of Allah Ditta and Dada by fixing the pre‑emption money at Rs.8,000 and declared that both these pre‑emptors will receive the equal share of suit‑land after depositing their respective decretal amounts. Four appeals were filed to assail the abovesaid consolidated judgment and decree passed by the learned trial Court. These appeals were accepted and the cases were remanded to the learned trial Court with a direction to record additional evidence and, decide the cases on merits. Further evidence was produced by the parties, documentary evidence Exhs.D‑4 to D‑11 and statements of D. W.3 to D. W.6 were recorded. Proceedings of these pre‑emption suits got adjourned sine die due to the statement of learned counsel for the parties that matter is pending before the Honourable Supreme Court. On an application by the pre‑emptors on 15‑12‑1991 the suits were restored and vide judgment and decree, dated 27‑7‑1992 suit of Muhammad Saleem Akhtar pre‑emptor decided by the then Civil Jude, Bhakkar was dismissed and Allah Ditta and Dada pre‑emptors were granted decrees of pre‑emption in actual shares on payment of Rs.14,000 directing each of them to deposit his share of the decretal amount to the tune of Rs.7,000 after deducting 1/5th pre7emption money deposited by them up to 16‑9‑1992. This consolidated judgment was assailed in appeal and the learned Appellate Court vide judgment and decree, dated 28‑9‑1995 accepted the appeal filed by Lakha against Allah Ditta, set aside the judgment and decree passed by the learned trial Court and also dismissed the appeal filed by the legal heirs of Muhammad Saleem Akhtar and also dismissed the three pre‑emption suits filed by Muhammad Saleem Akhtar, Allah Ditta and Dada. Against this consolidated judgment the instant civil revision has been filed.

3. Learned counsel for the petitioners submits that the learned Appellate Court has illegally set aside the judgment and decree of the learned trial Court, dated 27‑7‑1992, which was based on due appraisal of evidence available on record and was according to the facts and circumstances of the case. On reappraisal of the whole matter it is proved that the learned Appellate Court has misconceived the documents on record as well as provision of law applicable to the right of pre‑emption on the basis of co‑sherership. The petitioners were entitled to get the rights and obligations whatsoever were purchased by the respondent from the vendor and if the vendor was not the owner of the Khata in dispute, then what was transferred by him. As far as right of ore‑emotion is concerned when it is stated to be based on ownership of estate it is quite different from the right based on the co‑sharership and the learned Appellate Court has made a new case which was not pleaded at all by the respondent and other co‑sharers of the Khata nor it was in the pleadings of the parties, therefore, this judgment be set aside.

4. Learned counsel for the respondent submits that judgment of the learned Appellate Court is a well‑reasoned judgment and should not be interfered by this Court.

5. I have heard the learned counsel for the parties and perused the impugned judgment. The learned Appellate Court while deciding the two pre‑emptors' case Allah Ditta and Dada against Lakha observed that term `co‑sharer' as such does not appear to have been defined in the Punjab Pre‑emption Act, but it would obviously mean `a person who has a title in the Khata for which the sale is being made'. It is well‑settled law that in deciding that a person is owner of the estate for the purposes of pre emption, the determining factor is whether the area owned by him is or is not assessed to land revenue. The words "owner of the estate" are not synonymous with the words "owner in estate . It is thus crystal clear that if a person owns property which is assessed to land revenue, and for which, as a owner, he is responsible to pay the amount assessed, he is an owner within the meaning of the clause. The result of this discussion is that in order to claim superior right of pre‑emption under section 15 of old Pre‑emption Act, 1913, within the meaning of section 34(2) of the Punjab Pre‑emption Act, 1991 will have to prove that he is owner of such a piece of agricultural land in disputed village which is assessed to land revenue.

6. The above observation of the learned Appellate Court is legally infirm in its letter and spirit. In fact the definition of `co‑sharer' in its legal term is as follows:‑‑‑ "Word `co‑sharer' clearly denotes a person who holds an existing joint proprietary interest in undivided property‑‑‑Where record indicated the area purchased by vendee and that purchased by pre‑emptor stood separated with no joint characteristic." Ashiq Hussain v. Mst. Parveen Akhtar 1989 CLC 1557 (Pesh.). "The word `sharer', again, signifies to have or possess or retain share or title or right to share. Thus a person may be called a co sharer who enjoys or retains any fraction of share in property," Muhammad Alam Khan v. Muhammad Aslam Khan PLD 1984 (AJ&K)

51. In this way the word "co‑sharer" clearly signifies that there are other persons who have right in the property, Ghulam Begum v. Muhammad Khan PLD 1984 SC (AJ&K)

38. In Aiyar's Judicial Dictionary the interpretation of "co‑sharer" means "a person who has got an undivided share in the holding as well as a person who has become interested in a particular area of the holding is a co‑sharer, Mohini Mohan Saha .v. Meajan AIR 1926 Cal.

333. The word "co‑sharer" in the contest of pre emption law denotes a person who holds a share or shares in the whole of the property or properties of which another share or other shares were the subject‑matter of sale, Inder Singh v. Om Prakash 1989 Punj. LR 754 (P&H). The word "co‑sharer" signifies persons owning a share or shares in the whole of the property or properties of which another share or other shares were the subject of sale. In other words the word "co‑sharer" denotes a person who holds an existing joint proprietary interest whether absolute or limited in an undivided property, Sher Singh v. Nandlal AIR 1947 Lah. 184.

7. The learned Appellate Court has given his own' anomaly to the definition of co‑sharer. Under section 15, West Pakistan Land Revenue Act (XVII of 1967), sections 3, 4 and 56‑‑‑Right of pre‑emption ‑‑‑Claim of superior right on ground of being owner of agricultural land in the estate‑‑‑ "Agricultural land", the "estate" and "land revenue", meaning‑‑ Agricultural land though is subject to payment of land revenue, but non payment of the same shall not change the character of the agricultural land‑‑‑‑Owner of agricultural land or an owner in the estate where land is not assessed to land revenue shall not, therefore, lose the right of pre emption, Ghulam Hussain Arshad and others v. Allah Ditta and others 1993 SCMR 1486.'

8. I have perused the Jamabandi, undoubtedly both the pre‑emptors do appear in the joint Khata of the vendor. Although against their names in Jamabandi the assessment of land revenue is not mentioned and that does not mean that this can debar the petitioners.' claiming their right of ownership and co‑sharership in the Khata as even against vendor no mention of assessment of land revenue exists in the Revenue Record, then how did he transfer the land through sale, therefore, the learned Appellate Court while deciding the right of co‑sharership of pre‑emptor has erroneously applied its own anomaly of ownership in estate in agricultural land which neither supported by law nor by the provisions of Pre‑emption Act nor by the judgments of this Court and the Hon'ble Supreme Court.

9. Therefore, I accept the instant Civil Revision and set aside the judgment and decree passed by the learned Appellate Court and maintain the judgment and decree passed by the learned trial Court. No order as to costs. Q.M.H./M.A.K./A‑568/L