1992 PLP 278 (MLD)

Muhammad Iqbal Khan Kundi for Petitioner. Allah Nawaz Khan for Respondent. Date of hearing: 9th October, 1991. By this single order, I intend to dispose of two Civil Revisions Nos.46 and 47 of 1989 as the common questions of law and facts are involved in these two petitions.

2. The late Abdullah Khan alias Abdur Rehman now substituted by his legal representatives instituted two pre‑emption suits in the Court of Civil Judge Bannu against Sher Ghulam and others defendant‑respondents herein. In Suit No.89/1 of 1987, the sale of land measuring 3‑1/2 Marlas out of 2 Kanals 10 Marlas in Khasra Nos.356/316/98/99 and of 2‑1/2 Marlas out of 5 Kanals 1 Marla in Khasra No.92 vide Mutation No.2220 attested on 20‑5‑1982 in favour of Sher Ghulam, defendant‑respondent, was pre‑empted on the basis of right of co- sharership and participator of immunities and appendages. In Suit No.90/1, the sale of land measuring 1 Kanal 13 Marlas out of 2 Kanals 10 Marlas in Khasra No.358/316/98/99 was pre‑empted on the basis of same qualification as in Suit No.89/1 of course challenging the exchange Mutations Nos. 2214, 2216, 2218 attested on 21‑1‑1982 as fictitiously entered and attested to ward off his superior fight of pre‑emption. The two suits were contested by Sher Ghulam, defendant respondent herein. After framing the issues from the pleadings of the parties and recording their evidence pro and contra, the trial Court vide judgment dated 7‑3‑1984 granted a decree for possession by pre‑emption of the land measuring 3‑1/2 Marlas in Kbasra No.358/316/98/99 to the plaintiff Abdullah Khan alias Abdur Rehman in Suit No.89/1 against the defendant‑respondent on payment of Rs.2,683.31 while his suit for the remaining area was dismissed. The Court vide judgment dated 7‑3‑1984 in Suit No.90/1 also granted a decree for possession by pre‑emption of the entire land sold to the plaintiff against the defendant on payment of Rs.6,364.29 paisas. The defendant‑respondent's appeals against the aforesaid judgments and decrees of the lower Court before the learned District Judge Bannu failed. He preferred revisions before this Court and the appeals were remanded to the District Judge Bannu for decision on merits. After the remand, the learned District Judge accepted the appeals and dismissed the suits on 4‑7‑1987. This decision of the learned District Judge was again challenged in revision before this Court which was accepted and the cases were remanded to the learned District Judge for decision afresh on all the issues. On receipt of the case file, the learned District Judge entrusted the cases to the learned Additional District Judge Bannu for disposal who finally while accepting the appeals dismissed the suits of the plaintiff‑petitioner vide consolidated judgment dated 13‑2‑1989. Since the main point of controversy between the parties was the superior right of pre‑emption in respect of Khasra Nos.358/316/98/99, therefor, the learned Additional District Judge after hearing the arguments of the learned counsel for the parties on the issue and on the basis of evidence on the record held that since the plaintiff pre‑emptor had separated his share in the Khata by making `pulla' and planting trees, and was in exclusive possession of his share therefore that amounted tp partition of his share from other co‑owners of the suit property. 1n the Revenue Record also, the pre-emptor was shown in possession of his specific share to the extent of 10 Marlas, therefore, in his view the status of the land had been changed on the spot and in no way the same could be considered as the joint property of the co‑owners. Therefore, plaintiff pre‑emptor being not the co‑owner in the joint property had no right of pre‑emption as against the defendant‑vendee on the basis of co -sharership and also could not claim superior right of pre‑emption on the basis of contiguity because defendant‑vendee's land was also contiguous to the suit land. The appeals filed by the defendant‑vendee were therefore accepted and vide impugned judgment dated 13‑2‑1989 judgments and decrees of the lower Court in the two Suits No.89/1, 90/1 were set aside and suits were dismissed.

3. Feeling aggrieved from the judgment and decree dated 13‑2‑1989 of learned Additional District Judge Bannu, the legal representatives of the plaintiff‑pre‑emptor have filed these two revisions under section 115 of the Code of Civil Procedure in this Court assailing not only the judgment of appellate Court but also of the lower Court to the extent of land not decreed in Yhasra No.92.

4. Mr. Muhammad lqbal Khan Kundi, Advocate for the petitioners argued that the Appellate Court had erred in taking the view that on account of private partition right of co‑sharership was lost, inasmuch as the private partition between the co‑owners is no partition in the eye of law. Reliance was placed on PLD 1983 Pesh.

127. Additionally the judgment of the appellate Court was challenged on the plea that the grounds taken in the memo of appeals were not discussed.

5. Mr. Allah Nawaz Saddozai, Advocate on behalf of the defendant respondent contended that sufficient cogent evidence was available on the record to show that the plaintiff‑pre‑emptor is in exclusive possession of his share as a result of private partition and he having lost his qualification of co‑ownership was rightly held as not having superior right of pre‑emption. In support of his contention that a co‑owner in exclusive possession of his share in the land as a result of private partition is disentitled to claim superior right of pre‑emption, reliance was placed on an unreported judgment of the Supreme Court passed in Civil Appeal No.33‑P of 1986 titled Mst. Khanam. Jan. v. Muhammad Ali Shah decided on 18‑3‑1987.

6. Having given my careful consideration to the respective contentions of the learned counsel for the parties and after going through the record of the case, I am inclined to agree with the learned counsel for the defendant‑respondent that on account of private partition and being an exclusive possession of his share in the Khata, the plaintiff‑pre-emptor is no more a co‑sharer in the Khata and as far as contiguity of his land is concerned that qualification is possessed by the defendant‑vendee also. The unreported judgment of the Supreme Court in Mst. Khanam Jan's case supra supports the view. In the said case before the Supreme Court, leave to appeal was granted, inter alia, on the ground whether concurrent findings of fact by the two Courts below could be set aside by the High Court in its revisional jurisdiction. The facts of the case were that the land bearing Khasra No.406 purchased by Abdur Rahim Khan, the predecessor‑in‑interest of the appellant in that case was pre‑empted by the respondent amongst others, on the ground of contiguity. It was claimed by the plaintiff‑pre‑emptor that Khasra No.407 contiguous to Khasra No.406 was owned by him jointly with other co -owners. The trial Court appointed a Local Commissioner who reported that Khasra No.407 at the spot was divided between the co‑owners and each one of them was in separate possession of his own share. The plaintiff‑pre‑emptor's portion in his possession was not found contiguous to Khasra No.406, as the two co‑sharers of Khasra No.407 were in possession of their respective shares intervening Khasra No.406 and portion of Khasra No.407. The trial Court on accepting the report of the Commissioner that the land owned and possessed by the plaintiff‑pre‑emptor in Khasra No.407 was not contiguous to Khasra No.406 dismissed the suit. These findings were confirmed by the first Appellate Court. In revision before the High Court, the learned Judge observed that the report of local Commissioner should not have been accepted by the trial Court as it was contrary to the entries in the Jamabandi where Khasra No.407 was shown in joint ownership and possession of the co‑sharers including the plaintiff. It was further observed that assertion of Hissadari possession by the co‑sharers in Khasra No.407 was wrongly assumed to be the partition thereof and that there was no assertion of private partition in the written statement filed by the defendant- vendee, nor was any issue framed to that effect. On this view of the matter the High Court treated the case of misreading the evidence and the findings of the two Courts below were set aside and it was held that Khasra No.407 being in joint ownership and possession of the plaintiff‑pre‑emptor, he was entitled to a decree of pre‑emption on the ground of contiguity. The august Supreme Court did not agree with the findings of the High Court, for, it was found that besides the report of the Commissioner, there was other materials and also the statement of the pre‑emptor showing that Khasra No.407 had been actually partitioned between the co‑owners and each one of them was in Hissadari possession thereof. It was further held that there was no misreading of evidence by the Courts below on the disputed question of fact. The objection that the plea of private partition was not raised in the written statement was overruled as the objection though not specifically raised in the written statement was taken to have been raised as denial of right of pre‑emption included this objection. Accordingly, the appeal was allowed and the judgment of the High Court was set aside.

7. A similar controversy which arose in Mst. Khanam Jan's case has arisen in the instant case before us. Plaintiff‑pre‑emptor has been non‑suited on the view that since he is in possession of his share in the khata, therefore now he cannot claim superior right of pre‑emption on the basis of co‑sharership in the khata. The conclusion arrived at by the appellate Court is not whimsical but it is supported by the evidence on the record. Abdur Rehman, plaintiff‑pre‑emptor is shown in actual possession of his share of 10 Marlas of land bearing Khasra No358/316/98/99 in the Jamabandi for the year 1978‑79 (Exh.P.W.l/1). The patwari halqa, Sabir Khan (P.W.1) in his statement said that the plaintiff‑pre- emptor is in actual possession of his share measuring 10 Marlas on the south of aforesaid Khasra number and a partition through a `pulla' has been effected and that trees are also planted. About Khasra No.92 Patwari has stated that plaintiff pre‑emptor is neither co‑sharer nor contiguous owner. The attorney of the plaintiff, Qamar Ali Khan (P.W.2), admitted actual possession of land on the south, a demarcation through a "Band" and plantation of trees. This evidence would show that through a private partition the plaintiff‑pre‑emptor is in exclusive possession of his share and having nothing left in the Khata, he cannot claim superior right of pre‑emption on the basis of co‑sharership in the khata. The case of Mst. Gul Adam v. M. Talib Jan (PLD 1983 Pesh. 127) cited by the learned counsel for the petitioner laying down the rule that private partition between owners of estate cannot defeat preferential right of pre‑emption on basis of co‑sharership is distinguishable, for in that case the other area was jointly shown in the‑site plan by the Patwari and as such plea of private partition was not accepted. Again Patwari in that case had deposed that appellant was a co‑sharer in the estate. In the instant case the plaintiff‑pre‑emptor is proved to be in exclusive possession of his share in the Khata and nothing is left to be owned jointly, with other co‑owners. Therefore on the ratio of Supreme Court's decision in Mst. Khanam's case supra it is held that plaintiff‑pre‑emptor petitioner herein being no more a co‑sharer in the Khata cannot claim superior right of pre-emption. The findings 'of the appellate Court ale correct and call for no interference by this Court under section 115, C.P.C.

8. For the foregoing reasons the revisions being devoid of merit are therefore, dismissed. Parties are left to bear their own costs. A.A./1285/P Revisions dismissed.