P L D 1975 Peshawar 218 (PLP)

ABDUL HAKEEM KHAN, J.

One of us, namely Qaisar Khan, J. taking into consideration the principles embodied in section 29 of the N.-W. F. P. Pre-emption Act (hereinafter called the Act) was not satisfied with the view taken by him in a Division Bench in Muhammad Sharif Khan v. Peer Bakhsh Khan (Civil Revision No. 2 of 1963, decided on 15-5-70) that where a pre-emp tor has contiguity with two Khasra Numbers in the Khata, but the vendee could retain two other Khasra Numbers in the Khata on the same ground, the latter would be a co-sharer in the Khata and for that reason defeat the former formulated the following question:- "If a person purchases land bearing more Khasra Numbers than one situated in the same Khata, then can a pre-emptor of the said sale got a decree for one of the Khasra Numbers on the ground of con tiguity, or, can the vendee defeat the claim of pre-emption even to that one Khasra Number on the basis of contiguity on the ground that he is to remain a co-sharer in the khata after the decree" for reference to a larger Bench. His Lordship, the Chief Justice, has agreed and the reference is now being disposed of by a Full Bench.

2. It will certainly help in appreciation of the matter if we were to add that though six Khasra Nos. viz. 1287, 1288, 1161, 1214/ 1, 1215/1 and 989/1, in one Khata, have been sold, the land bearing Khasra Nos. 1214/2 belonging to the pre-emptor is contiguous to only two Khasra Nos. viz. 1214/1 and 1215/L of the said Khata.

3. There can be no dispute with the proposition that as a result of the impugned sale the defendant-vendee became a co-sharer in the Khata and that he will retain that status as respects the property which cannot be successfully preempted from him but this in our view is not going to solve the point in issue. We have to give our opinion as to whether a pre-emptor who can succeed to a part of the joint property on the basis of contiguity shall stand defeated for the reason that the part retained by the vendee being in the joint Khata will make the vendee a co-sharer in that property and as such a person holding a superior right.

4. An answer to the question will not be possible without a recourse to the provisions of the Pre-emption Act and precisely speaking without an endeavour on our part to discover what the expression "right of preemption" connotes and the circumstances in which it can be frustrated or defeated.

5. A reference to section 4 of the Act will show that the right of pre-emption shall mean the right of a person to acquire in preference to other persons; section 12 the persons who were entitled to pre-emption; section 22 that a person entitled to pre-emption may, when the sale is completed, bring a suit to enforce his right; section 16 that a decree shall not be passed unless a pre-emptor has a subsisting right of pre-emption at the time of the decree ; section 17 (2) that any improvement otherwise than through in heritance or succession, made in the status of a vendee after the institution of a pre-emption suit shall not affect the pre-emptor's right ; section 20 when the right becomes extinct; section 21 when the right stands forfeited; and section 29 that a decree shall not be passed until the pre-emptor's basic right is upheld.

6. It does not stand to reason that even though the pre-emption is a right of a person to acquire in preference to other in respect of a sale, that right will be lost in a manner not indicated by the Act itself. We fail to appreciate how can the fragile right of the vendee be used as stick to beat the person whom the law has given preference and who can get himself sub stituted for the vendee. That which is sub judice will not per se create right in this or that party. It is true that right of preference has got to be determined by attempting to answer three questions. First, whether the person claiming the right is or has become a co-sharer in the property in question. Second, whether the person is or has become a participator in immunities and appendages. Third, is or has become owner of contiguous property. As regards the last two, there can be no doubt that these rights cannot be conferred by the property sold itself. The first at first sight gives an impression that the right might be there in that person who has acquired 4 share by the impugned sale. But this interpretation will be absurd. Everybody who purchases a joint property will be a co-sharer and will be able to put a successful challenge to a person who is already a co-sharer. As a matter of fact if this is to be the case, nobody will be able to succeed on the basis of a co-sharer-ship which is the premier most qualification. The law will be set at naught. It, therefore, appears to us that the correct view will be not to allow any status whatsoever to any of the parties on account of the impugned sale.

7. Mr. Peer Bakhsh Khan was frank enough to concede that he will not say that in the circumstances the person retaining the property and for that reason becoming a co-sharer in the property improves his status after the sale. His difficulty is understandable, for, any improvement otherwise than through inheritance or succession by the vendee will not adversely affect the right of a plaintiff pre-emptor, vide section 17 (2) ibid. But if there can be no improvement, there cannot be loss of the pre-emptor's rights either. In this view of the matter, the right which a pre-emptor possessed on the basis of contiguity to a particular Khasra Number or Numbers con tinues to subsist. He will be still possessing the right of preference to acquire the contiguous piece which he had to start with at the time of the sale.

8. Again there is abundant case-law under section 21 of the Punjab Pre-emption Act which corresponds to section 22 of the Act that a pre-emptor is not bound to claim the whole of the property sold when he is entitled only to a portion. In this connection a reference to 107, P. E., 1882 which is a Full Bench authority should be conclusive. So to speak even though a vendee has an equal or superior right or pre-emptor's right does not extend to a part that would not per se affect the right of the pre-emptor to the part to which he is otherwise entitled. A fortiori how can a person who is only entitled to pre-empt a part of the property be adversely affected by the im provement (if at all this can be so-called) in the status by the vendee in that part to which his right does not extend.

9. It is indeed quaint logic that though the pre-emptor is entitled to a part on account of his right and in the result the vendee is entitled to retain the rest, the former will not have that to which he was entitled, for, the latter has acquired title to the rest. This reasoning in a circle will also frustrate the very objectives of the law. For instance, where the pre-emptors, to whom second and third grounds of section 12 ibid are available with respect only to a part of the property sold.

10. The hollowness of the argument will also stand thoroughly exposed by the fact that no sooner a person succeeds in his right of pre-emption to a part of joint property, that property ceases to be joint. In this view of the matter even if the defendant-vendee becomes a co-sharer in the rest of the land, it cannot be possible for him to lay his hands on a property which would be no longer joint. It is true that now Khata is not entered in the revenue papers immediately and the matter has to wait till next Jamabandi but notionally separation is complete and effective no sooner the pre-emptor succeeds to a part only.

11. Our answer to the question referred is that if a person purchase land bearing more Khasra Numbers than one situated in the same Khata, a pre-emptor to the said sale can get a decree for such Khasra Numbers as are contiguous to his land, that is to say, vendee cannot defeat the claim of the pre-emptor to the land which is contiguous to his land on the ground that he is to remain 4 co-sharer in Khata after the decree. QAISAR KHAN, J.

I perfectly agree with the views expressed by my learned brother Abdul Hakeem, J. on the question referred to the Full Bench, but would like to add a few words. The vendee in such a case cannot be allowed to prejudge the findings of the Court by asserting that after the decree he would be left with such and such Khasra Numbers on the basis of which he can defeat the right of the pre-emptor. In- the circumstances the question of his asserting superior right on the basis of land to be left with him after the decision of the case, therefore, does not arise. After the decision of the case the making of such an assertion becomes useless because there is no case pending in which the assertion can be made. ABDUL GHANI KHAN KHATTAK, J.

I agree. S. A. H. Answered accordingly.