P L D 1989 Lahore 307 (PLP)

This regular second appeal is by Misri Khan son of Nawaz against the judgment and decree passed by the learned District Judge, Jhelum, dated 5‑10‑1978 by virtue of which the learned District Judge accepted the appeal of Muhammad Ilyas and set aside the judgment and decree passed by the learned trial Court dated 13‑7‑1977.

2. The background of the case is that one Misri Khan herein appellant filed a suit for pre‑emption in respect of sale of agricultural land (detailed in the plaint) made through registered sale‑deed dated 26‑9‑1975 on the ground that he was co‑owner in the village. One Muhammad Ilyas herein respondent No. 1 also filed a suit for pre‑emption in respect of same sale‑deed on the ground that he was owner in the estate.

3. Both the suits were consolidated. The learned Civil Judge, Second Class, Chakwal, passed judgment and decree on 13‑9‑1977 by which land measuring 19 Kanals 1 Marla ‑:vas given to Muhammad Ilyas and remaining land was given to Misri Khan.

4. On appeal by Muhammad Ilyas the learned District Judge, Jhelum, set aside the judgment and decree passed by the trial Court and decreed the suit in favour of both the pre‑emptors in equal shares. Hence this second appeal by Misri Khan. The learned counsel for the appellant contended that the learned District Judge had committed error of law by dividing the pre‑empted land under clause (e) of section 17 of Punjab Pre‑emption Act. It was contended that none of the pre‑emptors was owner of land in Shamlat Deh. Therefore, their case was covered by sub‑clause (c) of section 17 of Punjab Pre‑emption Act. It was next contended that finding of the trial Court was reversed by the District Judge on the .basis of conjectures and surmises.

5. On the other hand the learned counsel for the respondent contended that clause (e) of section 17 of Punjab Pre‑emption Act was applicable and the judgment and decree of the District Judge was without any flaw. Reliance was placed on Fateh Muhammad and another v. Fateh Muhammad and others AIR 1948 Lah. 71 and Murid Hussain v. Muhammad Lal 1987 CLC 101.

6. I have heard the arguments of the parties with care and caution. The dispute in this appeal relates to the applicability of clause (c) and clause (e) of section 17 of Punjab Pre‑emption Act. The facts of the case are admitted between the parties. It is the case of both the parties that both pre‑emptors are not the owners ofl lend in Shamlat‑deh. They are owners in Mauza and have no entitlement whatsoever in Shamlat‑deh. They are recorded in Revenue record as owner in possession (qabza malkana) without any right in Shamlat‑deh.

7. The only question calling for determination is whether clause (c) or clause (e) of section 17 of Punjab Pre‑emption Act is applicable. The relevant clause (c) and clause (e) of the Punjab Pre‑emption Act are as follows:‑‑ "(c) if they claim as owner of the estate or recognized sub‑division thereof, in a proportion among themselves to the share which they would take if the land or property were common land in the estate or the sub‑division as the case may be; (e) in any other case, by such pre‑emptors in equal shares.

8. Section 17 deals with the division of pre‑empted property among equally entitled pre‑emptors. It has no relation to disputes between pre‑emptive claimant and a vendee with equal rights. The clause (a) relates to division of property among the co‑sharers. Clause (b) pertains to case of heirs while the clause (c) provides the formula of division in case of owners. While explaining the clause (c) of section 17 Sir Shadi Lal observed "in such cases, the property in suit will be divided among the successful pre‑emptors in the same way hs if it were common land of the patti or estate and the persons entitled to divide it were none but the successful pre‑emptors. In other words, suppose that the property in suit is the shamilat of the patti or estate and the only persons entitled to partition the shamilat are the successful pre‑emptors. The share which each pre‑emptor would get in the shamilat will be his share in the property in suit."

9. In short clause (c) shall be applicable to the case of equally entitled pre‑emptors when they are owners in the village and will be entitled to get the land in accordance with their respective entitlement in Shamlat deh. If they have no entitlement in Shamlat‑deh the clause (c) will not be applicable to their case.

10. Clause (e) is a residuary clause and applies where clauses (a), (b), (c) and (d) are not applicable. This clause provides the rule of division per capita. This principle was followed in Fatel Muhammad and another v. Fateh Muhammad and others A I R 1948 Lah. 71.

11. For whatever has been stated I have no difficulty in reaching the conclusion that the judgment and decree of the learned District Judge, Jhelum, dated 5‑10‑1978 is without any legal infirmity. The B second appeal, therefore, fails. I accordingly dismiss the appeal leaving the parties to bear their own costs in view of the complicated nature of legal questions raised in this R.S.A. H. B. T./M‑1214/L ‑‑‑ Appeal dismissed.