2006 PLP 1001 (MLD)

JAWWAD S. KHAWAJA, J.

The petitioners/defendants impugn the concurrent decrees of the learned trial Court dated 22-9-2000 and of the learned appellate Court dated 27-4-2002, whereby a suit filed by Hazrat Mansha respondent/plaintiff seeking possession of the suit-land through pre-emption, has been decreed.

2. Although the record of this case is voluminous, the facts necessary for its disposal are relatively straightforward. The respondent/plaintiff claimed that as against the petitioners/defendants, he had a superior right of pre-emption being shafi khalit and shafi jar. The claim of a superior right on the basis of shafi khalit was not accepted by the learned Courts below. Even before me, learned counsel for the respondent/plaintiff stated that the controversy was confined to the plaintiff's superior right based on contiguity.

3. The learned Courts below have held that Killa No.25 of Square No.88, which is owned by the respondent/plaintiff, has one corner which touches the corner of Killa No.1 in Square No.102 which is part of the disputed land purchased by the petitioners/defendants. On this basis it has been held that the suit-land is contiguous to the property owned by the respondent/plaintiff and, therefore, the respondent has a superior right of pre-emption. In reaching this conclusion the learned appellate Court has relied on the judgment in the case titled Abdul Qayyum v. Muhammad Aslam (PLD 1979 SC 867). 1 have gone through this precedent and note that it proceeds on entirely different factual premises. The question before the Honourable Supreme Court was as to whether the suit-land proposed to be pre-empted could be considered as being contiguous to the land owned by the plaintiff even where the suit-land was comprised in different Khasra numbers and one of the Khasra numbers was not directly contiguous to the plaintiff's land. It was held that contiguity would extend even to those khasra numbers which though not directly contiguous to the plaintiff's land were connected, to the same through intervening Khasra numbers. This precedent relied upon by the learned appellate Court has no application in the circumstances of the present case noted above.

4. The entire concept of contiguity in matters of pre-emption is based upon the premise that the owner of land sharing a common boundary with land, which is subject-matter of a pre-emption suit, should have a right superior to that of a purchaser who does not own land having a common boundary with the suit-land. In the present case it is quite evident that the suit-land has no common boundary with the land owned by the respondent/plaintiff in Square No.88. The mere fact that Killa No.25 in Square No.88 has one corner touching the corner of Killa No.1 in Square No.102, which is part of the suit-land, does not result in any shared boundaries between the two and, as such, cannot be treated as being contiguous. It, therefore, follows that the ownership of the respondent/plaintiff in Killa No.25 of Square No.88 does not vest in him a superior right of pre-emption in respect of the suit-land.

5. In addition to the above, the learned appellate Court has failed to take note of the fact that the petitioners/defendants own land, inter alia, in Square No.4 and in Killa Nos.12, 13 and 20 of Square No.5 in Mauza Joda which land is contiguous to the suit-land. This fact is established from the aks shajra placed on record which shows that the northern boundary of Mouza Joda constitutes the southern boundary of Mauza Sunderke and that Square No.109 (which is part of the disputed land) in Mauza Sunderke is contiguous to the land owned by the petitioners/defendants in Mauza Joda. Jamabandi (Exh.P.21) and sale-deed in favour of the petitioner (Exh.D-4) show the title of the petitioners in Square Nos.4 and 5 of Mauza Joda.

6. It appears that error has crept into the impugned appellate judgment because the land owned by the petitioners, which is contiguous to the suit-land, is in Mauza Joda, while the suit-land and the land on the basis of which the respondent/plaintiff has asserted a superior right, is located in Mauza Sunderke. The fact that the land of the petitioners was in the adjacent Mauza, is wholly irrelevant because what needs to be seen is whether the land of the petitioners was contiguous to the suit-land.

7. Based on the documentary evidence available on record, the conclusion is inescapable that the petitioners/defendants owned land which though situated in the adjacent mauza, was contiguous to the suit-land. Their purchase of the suit-land, as such, could not be defeated by the respondent/plaintiff on the ground that he also owned land which was contiguous to the suit property.

8. In the foregoing circumstances, I find that there has been serious non-reading and misreading of the available evidence which has resulted in legal error vitiating the judgments and decrees of the learned Courts below. The said decrees are, therefore, set aside. As a result, the suit filed by the respondent/plaintiff is dismissed. M.H./M-1201/L Revision allowed.