P L D 1990 Supreme Court 465 (PLP)

Z.Mahfooz Khan, Advocate‑on‑Record for Respondents. Date of hearing: 20th December, 1989. MUHAMMAD AFZAL ZULLAH, J.‑‑‑This appeal, through leave of the Court, by a vendee/defendant in a pre‑emption matter is directed; against, the judgment, dated 18th June, 1976 of the Peshawar High Court, whereby Regular Second Appeal of respondents/plaintiff/preemptor's side was allowed. The facts briefly stated for the present stage of litigation in this case are that the appellant purchased, through a registered sale‑deed, 2 kanals 4 marlas out of 9 kanals 2 marlas of land comprised in Khata No.151. Muhammad Usman the plaintiff/pre‑emptor (now deceased) filed a suit for pre‑emption on the basis of superior right of contiguity. The learned trial Judge dismissed it on the ground that a part only of the suit land (Khasra Nos.1015, 1973, 2014 and 2475) could be brought under claim of pre‑emption on the basis of contiguity while with regard to the remaining land (Khasra No.3433) the plaintiff's suit had to be dismissed as the ground of contiguity of this part of suit land was not established. But the matter did not end here. It was further held that as the vendee would remain owner of this excluded Khasra number, he would also by virtue thereof become a co‑sharer in the same Khata. And by acquiring this status of co‑sharership in the same Khata he would defeat the pre‑emptor with regard to the other 4 Khasra numbers, already made subject to plaintiff's claim of contiguity; because the ground of co‑sharership is superior to that of contiguity. Even the partial success of the pre‑emptor thus would be lost. Accordingly, the plaintiffs suit was dismissed in its entirety. The respondent/plaintiff's side having failed in the first appeal before the District Court on the same ground, as noted above, filed Second Appeal in the High Court. It has been allowed regarding four Khasra numbers; namely, 1015, 1973, 2014 and 2475 on the ground of the same being contiguous to the plaintiff/pre‑emptor land. The suit, however, was dismissed regarding Khasra No.3433 only as the said qualification lacked in respect of that land. Reliance was placed on Saadullah Khan and 3 others v. Mohabat and 29 others (PLD 1975 Peshawar 218). On appellant/vendee' petition leave to appeal was granted to examine the correctness of the view held by the Peshawar High Court in the said case of Saadullah Khan; as ex facie, contrary view had been held by the Lahore A High Court in Phul Chand v. Mchta Sundar Das AIR 1940 Lahore

345. During the pendency of this appeal the view taken by the Peshawar High Court has been approved by this Court in several judgments. Two of them are:‑‑ (1) Ahmad Khan v. Saltar Din (PLD 1981 Supreme Court 148). In this case both the above noticed Peshawar and Lahore cases were duly considered, and (2) Bashir Hussain Shah v. Maskin (1988 SCMR 1251). It may be noticed here that even the appeal arising out of Peshawar case of Saadullah Khan has since been decided by this Court in Mohabat v. Asadullah Khan and others (PLD 1989 S.C. 112). The view expressed in the said case on the afore noticed law point was not disturbed though there is no discussion on the point and the appeal has been decided on other points. However, it has to be further observed that the fact regarding the plaintiff in that case having based his right of pre‑emption on contiguity was dealt with. When questioned; as to whether there is any judgment of this Court expressing contrary view to that in the cases of Ahmed Khan and Bashir Hussain Shah which might be helpful to the appellant the learned counsel for the appellant answered in the negative; but, vehemently contended that question involved in this appeal having since been referred for consideration by a larger Bench on 23rd October, 1989 in Mir Alam Gul v. Ismail and others (Civil Appeal No.95 of 1980), the present case also merits same treatment. To be fair to him the learned counsel admitted that in case the judgment of this Court in the case of Bashir Hussain Shah decided by four Judges, would have been cited before the learned Judges who made this reference, the result might have been different. Nevertheless he further argued that the learned Judges in this latest case of Basbir Hussain Shah did not discuss the relevant question in detail, therefore, this Bench should re‑open and re‑examine the entire question. We do not agree with him. The point in issue was dealt with and decided in the case of Bashir Hussain Shah as follows:‑‑ "We have considered the submission of the learned counsel for the appellant 'but we do not rind any force in it. In Saadullah Khan v. Mohabat (supra), the question referred to the Full Bench was that '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 get a decree for one of the khasra numbers on the ground of contiguity, 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. The answer to the question was that: 'if a person purchases land bearing more khasra numbers than. one situated in the same khata, a pre‑emptor to the said sale canget 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 a co‑sharer in khata after the decree.' The above view of the Full Bench was referred to and accepted in Ahmad Khan v. Sattar Din PLD 1981 Supreme Court

148. In the light of the above we agree with the conclusion arrived at by the Courts below." Here it has to be remarked that this Court had discussed the relative reasoning in both the High Court cases‑ ‑one from Peshawar and the other from Lahore and had approved the former, in the case of Ahmad Khan. Learned counsel for the appellant also tried to argue that the case of Ahmad Khan having been decided by two Judges of this Court only, the afore noted reference of the point to a larger Bench still holds good. We do not agree with him. As already admitted by him the case of Bashir Hussain Shah decided in 1988 by a Bench of four Judges, was not brought to the notice of the Bench which made the reference. The argument of the learned counsel is of no avail to the appellant. Learned counsel then contended that the reasoning by two learned Judges of this Court in the case of Ahmad Khan could and should be re‑examined in depth by the present Bench which consists of four Judges; even though, the view expressed in the case of Ahmad Khan stands affirmed and reiterated by four Judges of this Court in the case of Bashir Hussain Shah. We regret, this prayer of the learned counsel also, cannot be granted. He forgets that this Court in a different Bench cannot sit in appeal on the decision of another Bench even if the second is larger than the other one. The decisions in both situations are that of the Supreme Court. His reference to the order, dated 23rd October, 1989 of this Court in the case of Mir Alam Gul above referred; wherein, an "observation" was made that difference of opinion existing between two Full Benches of different High Courts on the question involved in this appeal "should" be considered by a larger Bench, also is of no help to him. Admittedly the learned Judges making the reference did not declare it as a law that such a decision by a Bench of two learned Judges of this Court, would in any manner be less efficacious; vis‑a‑vis, the decision on the law point involved. The conditions and limitations for re examination of law declared by this Court are not satisfied here. Accordingly, the law laid down in the case of Ahmad Khan would hold the field and the reference made on 23rd October, 1989 in the case of Mir Alam Gul to a larger Bench also, stands satisfied by the decision in the meanwhile in the case of Bashir Hussain Shah by the larger Bench of four Judges. In the light of the foregoing discussion looked at from whatever angle the contention noted in the leave granting order for examination and the arguments addressed by the learned counsel for the appellant, having failed on examination of the case‑law, this appeal is dismissed with no order as to costs. M.B.A./G‑261/S Appeal dismissed.