1988 PLP 976 (SCMR)

USMAN ALI SHAH, J.‑‑This appeal by leave of the Court has arisen from the judgment and order, dated 2‑6‑1976 of the Peshawar High Court, Peshawar, whereby a learned Single Judge accepted the appeal of the respondent and set aside the decrees of the Counts below. Briefly, the facts of the case are that Hazrat Ali respondent herein had purchased the equity of redemption of the suit land measuring 34 kanals 5 marlas for an ostensible consideration of Rs.5,000 vide mutation No.10737 attested on 27‑6‑1967 from one Nur Muhammad. Awal Khan and Janson Khan, appellants hereib had filed a suit on 24‑6‑1968, in the Court of Civil Judge, Lukki Marwat, for pre‑emption, claiming preferential rights against the respondent and also alleged that the price shown in the mutation is excessive. The suit was resisted by the respondent (Vendee) denying superiority of the appellants' pre‑emptive rights and maintained to have purchased the suit land for Rs.5,

000. He also contended that the suit was time barred and is liable to be dismissed under the principle of Sinker and that the suit was incompetent in the form laid down and was bad as well for partial pre‑emption. The learned trial Court on pleadings of the parties framed various issues and after recording the evidence adduced by both the parties, accepted the superior rights of pre‑emption of the plaintiffs (the present appellants) and decreed the suit on payment of Rs.5095 in their favour, vide his judgment dated 15‑5‑1969. Aggrieved by the said judgment, the respondent (Vendee) filed an appeal in the Court of the Senior Civil Judge, exercising appellate powers, who by his judgment, dated 4‑9‑1969 partially accepted the appeal and held that the plaintiffs had no superior right with respect to Khasra No.3724. The learned Senior Civil Judge modified the decree of the lower Court and dismissed the suit with respect to the aforesaid Khasra No.3724. Hazrat Ali (Vendee) went up in 2nd appeal to the High Court and a learned Single Judge by his judgment dated 6‑2‑1976 accepted the appeal and dismissed the suit of the appellants (Pre‑emptors) with respect to both the Khasra numbers i.e. No.3724 and 4030/3690. Leave was granted to the appellants to determine the question that whether under these circumstances the suit could be dismissed as a whole or as to whether it could be decreed as a whole or as to whether a decree for one of the Khasra number could be passed in view of section 4 read with section 18 of the Pre‑emption Act. We have heard the learned counsel for the parties and gone through the evidence on record. The learned counsel for the appellants urged that the principle of Sinker as contained in section 18, of the N.‑W.F.P. Tenancy Act is not attracted to the instant case. As both the appellants have a superior right than that of the respondent, and the appellants had a right of pre‑emption with regard to Khasra No.4030/3690 as held by the 1st appellate Court and this right could not be lost because they did not jointly have a superior right with regard to other khasra number sold. We have come to the conclusion that Awal Khan and Janson Khan both the pre‑emptors have proved their right of pre‑emption with regard to Khasra No.40330/3690 while in respect of Khasra No.3734 only Janson Khan pre‑emptor alone being a co‑sharer has got a superior right of pre‑emption but Awal Khan pre‑emptor has no such right. Thus Janson Khan being a co‑sharer has sued jointly with Awal Khan not having such right, lost his right of pre‑emption under section 18 of the N.‑W.F.P. Pre‑emption Act and therefore, the suit regarding Khasra No.3724 stands rightly dismissed. We also find that the plaintiffs (pre‑emptors) after the decision of the 1st appellate Court with regard to the decree of Khasra No.4030/3690 were satisfied with the decree in their favour so far as Khasra No. 4030/3690 is concerned and they had not challenged the dismissal of their suit with regard to Khasra No‑3724. But they had the right about Khasra No.4030/3690. The High Court was not justified to reverse the finding of the 1st appellate Court, on Khasra No.4030/3690 (wrongly stated as 3724). Therefore, we partially allow this appeal and while setting aside the judgment of the High Court, restore the judgment and decree of the Senior Civil Judge; with no order as to costs. M.Y.H./A‑205/S Appeal partly allowed.