P L D 1961 (W (PLP)

HABIBULLAH KHAN, J.‑This revision petition arises nut of a pre‑emption suit, which had been dismissed by the trial Court, but partially decreed by the Appellate Court. The brief facts of the case relevant for the purpose of the petition are that four separate field Nos. 1296, 1292, 1035 and 1056 were purchased by one Muhammad Ali. The transaction was pre‑empted by two persons, namely, Masha Jan and Janat Gul by separate suits, which were consolidate'. They claimed right of pre‑emption on ground of contiguity. The trial Court dismissed both the suits, holding that the vendee was also owner of property contiguous to the field numbers in dispute. Masha Jan alone preferred an appeal. The Appellate Court, disagree ing with the trial Court, came to the conclusion that the vendee owned no property contiguous to three of the field numbers, namely, 1292, 1293 and 1055, and consequently granted a decree to the pre‑emptor in respect of these three field numbers. As regards the fourth field No. 1056, his suit was dismissed. The learned Appellate Court followed a single Judge decision of this Court Muhammad Akbar Khan v. Zaidullah Khan (P L D 1954 Pesh. 99). In that case the learned Judge had held that "the mere fact that a certain water‑channel, which might run miles and miles, irrigates the two lands, the one belonging to the plaintiff and the other land sold, cannot possibly give the plaintiff a superior right of pre‑emption."

3. In so far as field No. 1055 is concerned, the matter presents little difficulty. The pre‑emptor's suit was thrown out in the trial Court in respect of all the four field numbers ins dispute, while in the Appellate Court his suit was dismissed in respect of field No. 1056 purchased by the vendee. The position at present is that while field No. 1054 belonging to the pre‑emptor is contiguous to field No. 1055 in dispute on one side field No. 1056, which is now admittedly the property of the vendee, is contiguous to the same field number on the other. In other words, the fields of the pre‑emptor and the vendee being both contiguous to field No. 1055, they have equal right of pre‑emption, and as such, the pre‑emptor cannot claim a superior right.

4. This leaves us with the other two field numbers in dis pute, namely, 1292 and 1293. The pre‑emptor undoubtedly owns plots contiguous to these two field numbers but the vendees case is that he is a co‑sharer in field No. 1115, which is shamilat‑i‑deh (thoroughfare) and is contiguous to field Nos. 1292 and 1293. That field No. 1115 is village shamilat, that it is contiguous to the two field numbers in dispute, and that the vendee is a co sharer in it while the pre‑emptor is not, are not matters for controversy. The learned counsel for the pre‑emptor, however, argues that if a co‑sharer in a water‑channel contiguous to the property in dispute cannot be said to have equal right of pre emption with the other person who has land contiguous to the property sold, as held in P L D 1954 Pesh. 99, a co‑sharer in village shamilat though it may be contiguous to the property in dispute, also cannot claim to have equal rights with the pre emptor on ground of contiguity, with the greatest respect, we are unable to agree with the principle laid down in P L D 1954 Pesh. 99, not only because the principle enunciated therein does not appeal to our mind, but also because later in another case (not reported), namely,* Allahdad v. Abdul Ghafur and others decided on the 20th October 1954, the same learned Judge, in the course of his judgment, observed as under:‑-- "Fateh Khan Patwari (P. W. 2) stated in his evidence that Allah Dad was the owner of Kahsra No. 2266, which was separated from the suit land by a Kassi bearing Khasra No. 2274. This Kassi, according to Fateh Khan, is a shamilat‑i‑deh of Seer Sharki. Allah Dad being, a co‑sharer in the shamilat‑i‑deh of Seer Sharki would naturally be an owner of the Kassi, even if this share in that. Kassi is negligible. The absurdity of the law of pre‑emption enacted by the Provincial Legislature, as pointed out by me in case K. S. Muhammad Akbar Khan v. Zaid Ullh Khan (P I, D 1954 Pesh. 99) is quite obvious in this case. Absurd or not the Courts have got to enforce the law as it stands, and Allah Dad being one of the owners of the Kassi shall be held to b‑, the owner of the property contiguous to the property sold, and as such, entitled to get the decree for pre‑emption."

5. It will be noticed that Allah Dad has been held to be the owner of property contiguous to the land sold simply by virtue of being a co‑sharer in a kassi (water channel). The decision in this case, which virtually overrules the earlier reported decision, supports the vendee's contention that he being a co‑sharer in village shamilat, which is admittedly contiguous to the two field numbers, in dispute, has an equal right of pre emption with the pre‑emptor, and we think his contention is perfectly correct.

6. Next, it was urged on behalf of the pre‑emptor that a Civil Revision No 196 of 1953 share in village shamilat does not vest ownership of property in a person, as contemplated by the N.‑W. F. P. Pre‑emption Act, 1950. The relevant provision of law is contained in section 12, which reads as follows : "

12. The right of pre‑emption in respect of agricultural land, village immovable property and urban immovable property shall vest : -- firstly, in the co‑sharers in such land or property, if any ; . secondly, in a participator in immunities and appendages such as a right of way or a right to discharge water ; thirdly, in owners of contiguous property, if any ; ". According to the learned counsel for the pre‑emptor, the word "property" occurring in clause thirdly means immovable pro perty, such as land, and not a share in village shamilat. We do not see any force in this argument. The word "property" is nowhere defined in the Pre‑emption Act, and in the absence of any definition, the word "property" will be given the ordinary dictionary meaning. Village shamilat is undoubtedly immovable property and a person having a share in it will be deemed to be " "an owner of property", as contemplated by section

12. The vendee is a co‑sharer in field No. 1115, which is shamilat, an since this field number is contiguous to field Nos. 1292 and 1293 in dispute, he would be deemed to be "an owner of contiguous property", as required by clause thirdly of section 12, and as such, the pre‑emptor cannot claim a superior right of pre‑emption.

7. The Appellate Court misunderstood the correct legal position and wrongly applied law which was not applicable in the case. The correct legal position, as already pointed out, is that a co‑sharer in village shamilat can rightly claim to be a co sharer in property for the purpose of resisting a pre‑emption suit. In failing to apply the correct law, the Appellate Court o has committed a material irregularity justifying interference by this Court in the exercise of its revisional jurisdiction.

8. In the result, we would allow the revision petition, set aside the judgment and decree of the Appellate Court, and dismiss the suit: Since the law point involved in the case was not free from difficulty, we would leave the parties to bear their own costs of this Court. A.H. Petition allowed.