P L D 2004 Supreme Court 493 (PLP)

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondent. Date of hearing: 26th February, 2004. SARDAR MUHAMMAD RAZA KHAN, J.‑‑‑Muhammad Nawaz and 9 others of village Machora, Tehsil, Paharpur, District D.I. Khan, vendees in a pre‑emption suit seek leave to appeal against the judgment, dated 28‑2‑2003 rendered by a learned Single Judge of Peshawar High Court whereby the revision filed by them was dismissed.

2. Gul Sher had filed a pre‑emption suit against the present petitioners for land measuring 16 Kanals, 10 Marlas purchased vide Mutation No.1318 of 16‑9‑1996. After a contest by the vendees the learned trial Judge vide judgment, dated 16‑12‑1999 dismissed the suit, though accepting the superior right of pre‑emption yet on the ground that the pre‑emptor had not personally appeared in the witness‑box to prove the factum of `Talbs'.

3. On appeal the learned District Judge vide judgment, dated 27‑6‑2000 set aside the finding of the trial Court and granted pre‑emptor, the decree prayed for on payment of Rs.33,000, holding that the appearance of the pre‑emptor through attorney was a valid appearance. The same is upheld by the High Court in revision aforesaid and hence this petition. We agree with the conclusion.

4. After having heard the learned counsel for the petitioners as well as learned counsel for the respondents/caveators and having minutely gone through the record, we are constrained to observe that the real matter in controversy has not been attended to by all the three, Courts.

5. Admittedly, the property in dispute is located in village Teergerh while the pre‑emptor belongs to a contiguous village named Machora. A perusal of plaint would indicate that right of pre‑emption is based on contiguity as well as participation in the amenities and appendages to the effect that disputed property as well as that of the pre‑emptor are irrigated through a common source.

6. Taking the question of contiguity first, we would refer to the sketch of the spot Exh.P1/D

3. It shows that though in different villages yet the pre‑emptor apparently owns property contiguous to the one in dispute. But, all the Courts have omitted to observe that in between the two properties there runs a 'ghair mumkan kassi 'AD the width whereof one karam. This 'kassi' is located in village 'Teergerh' and hence cannot be claimed to be the joint property of the pre‑emptor. The patwari has tried to suppress the Khasra number of this 'kassi' but it cannot be presumed that a 'ghair mumkan kassi' of a width of one karam would be without any Khasra number. Be that as it may, the 'kassi' being located in village 'Teergerh', is not jointly owned by the pre‑emptor. We have no doubt in our mind that the property of pre‑emptor and the one in dispute are separated by the 'kassi' aforesaid that completely breaks the contiguity. The pre‑emptor cannot claim superior right through contiguity.

7. Coming to the question of common source of irrigation, it is claimed that both properties are irrigated through a common source. Though not alleged in the plaint specifically yet it is asserted in evidence that such source of irrigation common to the parties is the same 'kassi', AD given in Exh.P1/D

3. Word 'kassi' used in the area is defined in case of Mubarak Khan (PLD 1989 Peshawar 12) by Peshawar High Court and is said to be carrying rain water only and for most of the period it remains dry. In this view of the matter, we have come to the conclusion that the 'kassi' as such is not a permanent source of irrigation and there is some thing which is suppressed by the pre‑emptor.

8. The classifications of lands in the Revenue/Irrigation Record based on the source of irrigation are numerous. The properties irrigated only by rainfall are known as 'barani'. Those irrigated by hill‑torrents and other spring waters are known as 'aabi'. When the source of irrigation is a persian‑wheel or tube‑well, the lands are described as 'chahi' and 'nal chahi' respectively and, lastly, when the source of irrigation is through Government canal, the properties are described as 'nehri'. In the instant case, one does not have to make any effort to comprehend the correctness thereof because both the lands in question are immediately abutted to the Government canal known as 'paharpur' canal. It does not make any sense that the properties abutted to a Government owned canal would be irrigated through a 'kassi' which is likely to be dry most of the time in a year. Even if the minor tributary for the purpose of irrigation is presumed to be the 'kassi' aforesaid, it must certainly receive water from 'paharpur' canal which is why the properties are described as 'nehri'.

9. From the above discussion we safely conclude that both the properties in question are 'nehri'. Khasra Girdawari Exh.P.W.2/4 is indicative of the fact that the crops yielded include wheat, paddy (rice) and sugarcane. We also hold that the properties in question are irrigated through Government canal (paharpur canal) abutting both in dispute. The pre‑emptor has claimed superiority of right of pre‑emption on the ground of his being a `shafi‑i‑khalit'. Far back in the year 1946 this question was taken up by a Division Bench of Sindh High Court in Haji Imam Bakhsh's case (AIR (33) 1946 Sind 55) where Davis C.J. had categorically held that where the water course belongs to the Government, persons drawing water from it cannot claim pre‑emption as `shaft‑i‑khalit' over lands of one another. A person can claim to be a `shaft‑i‑khalit' in the flow of water only when he is a partner or participator in the right aforesaid but," because a person owns a land which draws water from a Government watercourse, the bed of the watercourse being the property of Government, he cannot in any way claim the right to pre‑emption as a sharer in an appendage (shaft‑i‑khalit) with the land of the neighbours who draw water for their lands from the same Government watercourse and over whose lands he does not in any way exercise the rights of dominant tenement, nor is he even the owner of the servant tenement".

10. To the above, we would like to add one thing that in a Government watercourse not only the bed of the watercourse but also water, belongs to the Government. The wisdom involved in he principle is quite evident because when one party is a participator jointly in the flow of water or of the watercourse, it has the authority to, stop such water or to interfere with the flow thereof. In order to avoid, future complications in the exercise of that right, the superior right of being a `shafi‑i‑khalit' is given to a pre‑emptor. In the instant case, the Government canal water and the course thereof do not belong, either to the pre‑emptor or to the vendee. Both receive water from the Government canal as of right exercised independently and hence none can claim superior right against the other. The ruling aforesaid was followed by this Court in case of Pir Ghulam (1979 SCMR 360) where it was categorically held that the right of pre‑emption under the doctrine of 'shaft‑i‑halit' is not extended pt all if both the lands in question are irrigated from a common channel. "Right to discharge water" from one land over another land was‑ determined, to be altogether different and distinct from receiving water from a common channel. In the instant case the pre‑emptor claims to be receiving water from a common channel and cannot claim that he has a "right to discharge" water from his land to the land sold or vice versa.

11. We have already determined that the `kassi' in dispute receives water from `paharpur' canal and hence it cannot be exclusively claimed by the pre‑emptor. Even if it is presumed for the sake of argument that both the properties are irrigated from the `kassi', still, the pre‑emptor has no superior right because on the one hand it breaks the contiguity through and through and on the other hand, pre‑emptor is not a participator in the right of irrigation, for, it is exercised by both the lands independent of each other. The case of pre‑emptor is rather worst because he is not an owner of `kassi' which is located altogether in a different village.

12. Let us examine this aspect in the light of section 6 of N.W.F.P. Pre‑emption Act, 1987 which defines a `shafi‑i‑khalit' as follows:‑‑ "Explanation: (II) "Shah‑i‑Khalit means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation." The very section to unambiguous terms indicates that a `shafi‑i‑khalit', in the right of irrigation attached to the property sold as a special right, must be a participator in that right. In simple words one can say that the right of irrigation possessed by the pre‑emptor should be joint with the right attached to the property sold. In the instant case, the pre‑emptor has not at all been able to prove that the bed of the watercourse or the water itself are jointly owned by the pre‑emptor. He could not have proved it either because the bed of the watercourse even if `kassi' was not the one participated or jointly owned by him for, it belonged to the Government including the canal water running therein.

13. The aforesaid discussion brings us to an inescapable conclusion that the pre‑emptor respondent in the instant case was neither contiguous owner nor a `shafi‑i‑khalit' and, therefore, was wrongly held so by the Courts below. The instant petition after conversion into appeal is hereby allowed, the impugned judgment, dated 28‑2‑2003 of the learned High Curt is set aside and the pre‑emption suit brought by the respondents is hereby dismissed. Parties to bear their own costs. S.A.K./M‑61/S Appeal accepted.