P L D 1976 Peshawar 19 (PLP)

QAISAR KHAN, J.-The facts of this case are given in detail in the order of the Division Bench dated 16-6-1972, which should be read as part of this order. The Division Bench has referred the fallowing question for decision by a Full Bench: "Whether a person having a share in the shamilat of the village which is a thoroughfare could claim superior right of pre-emption with respect to sales of land situated anywhere contiguous to the thorough fare, or conversely whether such a person could defeat the superior right of pre-emption of another claimed on the basis of contiguity"? Mr. D. M. Kamil, Advocate for the appellant and S. Usman Ali Shah, Advocate for the respondent heard at length. No other authority than the one referred to in the order of reference, that is to say P L D 1961 Pesh. 29, could be referred to by counsel for the parties. In the authority mentioned above the point has been dealt with but not exhaustively and we, therefore, proceed to go into the question very thoroughly.

2. The decision of the point referred to rests on the meaning and interpretation of section 12, thirdly, of the N. W. F. P. Pre-emption Act of 1950, which runs as follows: "Thirdly, in owners of contiguous property, if any". Now neither owner nor property has been defined in the Pre-emption Act. Section 3, subsection (5) of the Pre-emption Act lays down that any expression which is defined by section 3 of the Punjab Land Revenue Act, 1887 shall subject to the provisions of this Act have the meaning assigned to it in that section. But neither section 3 of the Land Revenue Act of 1887 nor section 4 of the Land Revenue Act of 1967 has defined these words. These words have also not been defined in the General Clauses Act; both Central and Provincial, and we have, therefore, to fall back on the definition of these words given in the Law Lexicon.

3. The meaning of the words "owner" "ownership of property" and "property" in Law Lexicon of the British India by P. Ramanatha Aiyar 1940 Edition is as follows: "Owner".

One who has dominion of a thing, real or personal, corporeal or incorporeal, which he has the right to enjoy and to do with it as he pleases-either to spoil or destroy it as far as the law permits --unless he be prevented by some law, agreement or covenant which restrains his right.' "Ownership of property" is the dominion or right over a thing, real or personal, corporeal or incorporeal, which the owner "to enjoy and to do with it as be pleases-either to spoil or destroy it as far as the law permits-unless he be prevented by some agreement or covenant which restrains his right". "Property".

Property has been defined as the right and interest which a man has in lands and chattels to the exclusion of others. The term `property' is a generic term of extensive application, and while strictly speaking it means only the right which a person has in relation to something, or that dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or objects, it is frequently used to denote the subject of the property, or thing itself which is owned or in relation to which the right of property exists. In the former sense it extends to every species of valuable right or interest, in either real or personal property, or in easements, franchises, and incorporeal hereditaments, and in the latter to everything which is the subject of ownership, or to which the right of property may legally attach, or in other words every class of acquisitions which a man can own or have an interest in."

4. Now there can be no dispute regarding the fact that a thoroughfare is property because it is a piece of land used for specific purposes. The question, however, is as to whether a person who is a co-sharer in the shamilat of the village and on that account treated as a co-sharer in a thoroughfare of the village situated in the shamilat of the village, could be considered as an owner of property of the type referred to in section 12 of the N.-W. F. P. Pre-emption Act? Our answer to this question is in the negative. We are of the opinion that such a person cannot be treated as owner of property for the purposes of pre-emption under the N.-W. F. P. Pre-emption Act. Our reasons for coming to this conclusion are as follows: The dictionary meaning of a thoroughfare is a road or street, especially one through which much traffic passes. The common meaning of it is a path which everybody has a right to use and whom nobody could obstruct in the said user. Now taking the meaning of the owner mentioned above, it is abundantly clear that a person who is a co-sharer in a thoroughfare cannot claim himself as owner of property. Such a man can have no more right in the thoroughfare than any other person, even if that other person be not an owner in the shamilat of the village or the thoroughfare. Such, a man cannot stop any person from using the thoroughfare and he cannot even transfer his right in tile said thoroughfare to anybody because every body, whether a co-sharer or not, has the same right in the thoroughfare as he has. He has, therefore, no disposing power over the thoroughfare either individually or collectively with the other co-sharers. Furthermore, such a man cannot even sue for the partition of the thoroughfare for separating his share of the thoroughfare. The ownership of such a man, therefore, means nothing and such an ownership is therefore, evidently not contemplate by section 12.

5. Besides, if such a person is considered as owner of property and allowed to pre-empt or resist pre-emption on such basis, then it will be against the spirit of the pre-emption law and will lead to absurd consequences The object of the pre-emption is to exclude strangers from acquiring land in a homogeneous society and if such a man is considered an owner of property, then the aforesaid object would be defeated. This can best be illustrated by examples. Supposing a person sells his land situated in a particular tai or kandi of the village lying by the side of a thoroughfare to the owner of another kandi, then a person of the said tai or kandi whose land is situated adjacent to the land sold would not be able to pre-empt the land because the person purchasing the land would be able to defeat his right by claiming co-ownership in the thoroughfare and thus a stranger would be introduced into the said tai or kandi. Similarly, if two brothers who own a piece of land situated by a thoroughfare partition it among themselves officially, that is to say, through the Revenue Officers, and the one who gets the share situated by the thoroughfare sells it to a person who is not an owner of any land in the village, except his ownership in the thoroughfare, then the brother of the vendor owning the adjoining land would not be able to pre-empt the sale. Again similarly if an owner in the village sells the whole of his property, including his right in the shamilat, excepting his right in the shamilat thoroughfare which he can neither sell nor will anybody purchase it from him, then still he will be able to pre-empt land sold in the village situated by the thoroughfare on the ground of being a co-sharer in the thoroughfare. This does not stand to reason and could never be the object of the Pre-emption Act. On the other hand if the thoroughfare passes through the whole length or breadth of the village lands, then every owner of the village, even if the villagers are in thousands, will have a right of pre-emption with respect to any piece of land sold by the side of the thoroughfare and heaven knows what will happen if a thousand of them separately pre-empt a marla of land sold.

6. Neil B. E. Baillie, M. R. A. S. in the Digest of Muhammadan Law 1957 Edition at page 482 states that a thoroughfare which does not give the right of pre-emption is a street that the people residing in it have no right to shut. Now this principle has been enunciated with respect to clause secondly of section 12 of the Pre-emption Act, but the principle equally applies to clause thirdly, and unless a cc-sharer in a thoroughfare has a right to shut the thoroughfare or impose any conditions on its use by others, he cannot be said to have any ownership right in the thorough fare of the type mentioned in clause thirdly of section

12. In view of all the above we are, therefore of the opinion that a co-sharer in a thorough fare can neither claim a right of pre-emption on the said basis with respect to land sold by the thoroughfare nor can he defeat the superior right of pre-emption of another claimed on the basis of contiguity. The question is, therefore, answered accordingly. S. Q. Question answered