P L D 1981 Supreme Court 148 (PLP)

ANWARUL HAQ, C. J.-This appeal, by the leave of Court, is directed against the judgment of the Peshawar High Court dated the 3rd of December, 1973, by which the second appeal filed by the appellant Ahmad Khan against a pre-emption decree obtained by respondent Sattar Din, was allowed only to the extent of Khasra No. 110, but dismissed regarding Khasra No. III. The land in dispute, comprising a part of Kasra No. 22, a part of Khasra No. 89, and Khasras Nos. 84, 85, 110, 111 and 151, situate in Mauza Mulakhel in Tehsil and District Bannu, was sold by one Hakimullah in favour of respondent. Sardar Khan on the 20th June,- 1961. Sardar Khan in turn sold Khasra No. 22 to Muhammad Sarwar and Nabi Sarwar respondents; Khasra No. 151 to Amir Shahzada; and Khasrgs Nos. 84, 110 and 111 to the appellant Ahmad Khan. Two suits were filed to pre-empt the sale, one by Sattar Din and the other by one Karim Dad, the latter seeking to pre-empt only Khasra No.

89. Both these suits were consolidated by the trial Court, which decreed the suit of Karim Dad in full, but decreed the suit of Sattar Din only with regard to Khasras Nos. 110 and

111. His suit regarding Khasra No. 84, was dismissed. Two appeals were preferred against this judgment, one by the original vendee Sardar Khan in respect of the decree in favour of Karim Dad, and the other by the present appellant Ahmad Khan with respect to the decree in favour of Sattar Din in respect of Khasras Nos. 110 and

111. The learned District Judge, Peshawar upheld the findings of the trial Court on all the issues, except on the question of actual payment of the sale price, a point with which we are not concerned in the present appeal. Two appeals and a revision were filed against the judgment of the District Judge in the High Court of Peshawar. One appeal was filed by the present appellant questioning the decree in favour of Sattar Din in respect of Khasras Nos. 110 and 111; and the other by Sardar Khan questioning the decree in favour of Karim Dad in respect of Khasra No. 89; while the revision petition was filed by Sattar Din to challenge the findings of the learned District Judge regarding the sale price. All these matters were disposed of by a learned Judge of the Peshawar High Court by his order dated the 3rd of December, 1973. Sardar Khan's appeal and the revision petition of Sattar Din were dismissed, but the appeal filed by Ahmad was allowed to the extent that the decree in favour ;of the pre-emptor Sattar Din was maintained only in respect of Khasra No. 111, and his suit in respect of Khasra No. 110, was dismissed. Leave to appeal was granted by this Court on the 24th of April, 1974, to examine the contention that since the decree obtained by Sattar Din had been set aside in respect of Khasra No. 110, and as this Khasra number was contiguous to Khasr? No. 111, the appellant had become the owner of land contiguous to Khasra No. 111, and thus possessed a right equal to that of the pre-emptor Sattar Din, who, accordingly, was not entitled to pre-empt Khasra No.

111. While granting leave to appeal it was observed that as this point had not been raised in the High Court on behalf of the appellant, the appellant shall have to bear the costs of the respondent in this appeal irrespective of its result. Mian Younus Shah, learned counsel for the appellant contends that the effect of the decree of the High Court is that the vendee is to be deemed to be the owner of Khasra No. 110 from the date of the sale, with the necessary consequence that his right to retain Khasra No. 111 would be equal to that of the pre-emptor, who has succeeded in getting the aforesaid Khasra number on the basis of his ownership of the adjoining Khasra No.

107. The learned counsel points out that the law permits the vendee to improve his status upto the date of institution of the suit, and, accordingly, if he could improve his status by purchasing another property before the institution of the suit, he could certainly benefit from the improvement conferred on him by the decision of the High Court, which must be deemed to confer on him this status from the date of the original sale. In support of his submissions, the learned counsel has placed reliance on Phal Chand v. Mehta Sundar Das (AIR 1946 Lah. 345). On behalf of the pre-emptor, it is submitted by Mr. Fazal Elabi that although the civil petition for special leave to appeal filed by the respondent against the judgment of the High Court was dismissed by the Supreme Court on 5-2-1974, as being time barred, yet he is entitled in the present proceedings, to canvass that the decree of the High Court is not sus­tainable even in regard to Khasm No. 110, as the High Court has erred in taking the view that it was necessary for the pre-emptor to have contiguous land with both the Khasra numbers in dispute, a view opposed to the decision of this Court in Said Karim Shah v. Tai Muhammad (PLD 1974 SC 383). He next contends that even otherwise the learned Judge in the High Court was in error in thinking that even though the plaintiff was a co-sharer in the water channel bearing Khasra No. 108, he could not be deemed to be owner of land contiguous to Khasra No. 110 as the extent of his ownership was confined to the Muhaz, ie. the frontage of his Khasra No. 107, as such a view ignores the fact that irrespective of the extent of his ownership the plaintiff was a co-owner of the water channel, which is admittedly contiguous to Khasra No.

110. Finally, the learned counsel for the respondent contends that the improvement accruing to the vender as a result of the judgment of the High Court could not have retrospective effect, and could operate only prospectively as held by a Full Bench of the Peshawar High Court in Saaduliah Khan and 3 others v. Mohabat and 29 others (PLD 1975 Pesh. 218) and it could not, therefore, benefit the vendee as it would be subsequent to the institution of the suit. In these circumstances, Mr. Fazal Elahi prays that not only should the present appeal be dismissed, but under the powers of the appellate Court in terms of rule 33. ,of Order LI of the Civil Procedure Code, the plaintiff's suit should be decreed even in respect of Khasra No. 110, as the High Court's judgment is clearly erroneous in this behalf. After hearing the learned counsel for the parties at some length, we are of the view that there is merit in the submissions made on behalf of the plaintiff-respondent. In the first place, it seems to us that the learned Judge in the High Court was clearly in error in holding that the co-ownership of the plaintiff in the water channel bearing Khasra No. 108 did not make him the owner of land contiguous to Khasra No.

110. It is an admitted position that the water channel adjoins Khasra No. 107 as well as Khasr No. 110, and it belongs to "Muhazi Malikan"; in other words, owners o all the Khasra numbers abutting on this water channel would be co-share in the same. Their shares might correspond to the frontage of their? land abutting on the channel, but this does not mean that they are not to be regarded as co-owners of the water channel as a whole. The. learned Judge in the High Court seems to have fallen in error in thinking that the right of each owner of adjacent land in the water channel would specifically limited to the frontage of his own land, as such a proposition is contrary to the concept of co-ownership in land or watercourses. A co-owner is to be deemed to be the owner of every part of the watercourse, although the extent of his ownership, vis-a-vis the other owners, would be regulated by, or correspond to, the size of the frontage of his own land, butt not physically confined to that portion only. On this view of the matter, it seems to us that the trial Court as well as the District Court were right in thinking that on account of his being a co-owner in the water channel bearing Khasra No. 108, the plaintiff as entitled to pre-empt Khasra No. 110 on the ground of contiguity. In other words, the question now raised on behalf of the appellant does not really arise on a correct appreciation of the right of the plaintiff, which extends to both the Khasra numbers in dispute. There is still another aspect of the matter, namely that the High Court was also in error in taking the view that the plaintiff had to prove contiguity in respect of each Khasra number comprised in the sale, as Khasra Nos. 110 and 111 clearly form part of a compact block of land sold by the vendor. In such a case contiguity with even one of the Khasra numbers would entitle the plaintiff to claim the entire holding comprised in the sale, as held by this Court in Said Karim Shah's case. The matter was considered at great length and it was held that the different Khasra numbers comprised in one holding do not become different properties in themselves, and the sale of a parcel and land comprised in more than one Khasra numbers did not constitute sale of as many properties as field numbers; it remained sale of one property, and if the plaintiff was owner of one Khasra numbe adjoining only one of the Khasra numbers sold, he could seek pre-emption on the ground of vicinage in respect of all the Khasra numbers. In this regard the view expressed by the Peshawar High Court in Muhammad Yousuf v. Sikandar (PLD 1970 Pesh 160), was approved, and the view earlier expressed in several judgments of the Peshawar High Court including Qalandar Khan v. Qazi Pir Muhammad Khan (PLD 1956 Pesh 1), was overruled. It will be seen, therefore, that this being the admitted position that the two Khasra numbers with which we are dealing, form one compact block, the plaintiff pre-emptor could succeed in respect of both on the ground of vicinage with one of this fields. On this ground also the High Court was in 'error in thinking that the right of pre-emption of the respondent did not extend to Khasra No.

110. On the question whether the decree of the High Court in favour of the vendee in respect of one of the Khasra numbers could put him on an equal footing with the pre-emptor, the view taken by a Full Bench of the High Court in the case reported as Saadullah Khan and 3 others v. Mohabat and 29 others, goes against the appellant. It was observed in that case that ; "it is indeed quaint logic that though the pre-emptor is entitled to a part on account of the 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." It was also stated by the learned Judges that :- "The vendee in such a case cannot be allowed to prejudge the findings of the Courts 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." We are inclined to agree with the view expressed by the learned Judges of the Full Bench. It is clear that the right vesting in the pre-emptor to claim a certain portion of the property in the ground of vicinage cannot be defeated restrospectively by the judgment of the Court to the effect that the right did not extend to certain other portion of the property, which could thus be allowed to remain with the vendee. The High Court seem L to be right in taking the view that the decision of the Court in such a case leaving a part of the property with the vendee on the ground that the pre-emptor's right did not extend to it, should not be allowed to operate retrospectively so as to defeat the right of pre-emption existing on the date of the institution of the suit as well as at the time of the sale. The learned counsel for the appellant has referred us to Phul Chand v. Mehta Sundar Das, but the facts of the cases are clearly distinguishable, as in that case two properties, namely, houses, had been sold under the same sale deed, and the suit for pre-emption had been brought only in respect of one of them on the ground of vicinage. It was held by a Full Bench of the High Court that the vendee could successfully resist the suit on the ground of his ownership of the adjoining property, which had been conveyed to him by means of the same sale deed, as it related to the sale of two distinct properties; and there was obviously, no reason why the vendee should not be able to take benefit from his ownership of the property, which was not made the subject-matter of the suit. Such a position does not obtain in the matter of several Khasra numbers comprised in one block of agricultural holding, sold in one transaction. This position has been made amply clear by this Court in the case already mentioned by us, namely, Said Karim Shah v. Taj Muhammad. For the foregoing reasons, we are of the view that the appeal has no merit and is hereby dismissed with costs. The question, however, is whether we should give any relief to the respondent in the exercise of our power under Order XLI, rule 33 of the Civil Procedure Code, or under Article 187 of the Constitution, which enjoins the Court to pass any appropriate orders for the purpose of doing complete justice between the parties according to law. Although the civil petition for leave to appeal filed by the respondent against the judgment of the High Court was dismissed as being barred by time, the fact remains that he has been illegally deprived of his right to obtain possession of I Khasra No. 110 as well by way of pre-emption. In the circumstances wet are of the view that this is a fit case in which we should set aside the decree of the High Court and restore that of the District Court in respect of both the Khasra numbers in dispute: We order accordingly. s.A.Hx. Appeal dismissed.