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Civil Petition for Special Leave to Appeal No. 75-P of 1978, decided on 23rd October 1979.

(On appeal from the judgment and order of the Peshawar High Court, Peshawar, dated 23rd May 1978, passed on C. R. No. 130 of 1977).

---S. 12-Pre-emption-Co-owner of property-Owner in every inch of estate so long as property not partitioned-No known principle of law lays down that unless he owned so much share in land, he could not claim to be a co-sharer.

-- S. 100--Respondent admittedly being a co-owner in unparti tioned Lakhti, his ownership rights, held, extended to every inch of Lakhti and as such High Court rightly non-suited petitioner Petition dismissed.

Mughal Baz Khan v. Sher Afzal Khan P L D 1976 Pesh. 19 and Mardan Shah v. Shah Nazar Khan P L D 1970 S C 245 ref.

Sibtul Hassan, Advocate and M. Qasim Imam, Advocate-on-Record for Petitioner.

M. Yunas Shah, Advocate and S. Safdar Hussain, Advocate-on-Record for Respondent.

Date of hearing : 23rd October 1979.

The petitioner herein filed suit against respondent Rahim Gul for the pre-emption of the suit land measuring 2 kanals, 12 marlas, situate in village Shaikhan, Tehsil Kohat, on the ground that his own land was contiguous thereto, and further that he was participator in the amenities and appendages. The trial Court dismissed the suit of the petitioner on the ground that he had no superior right of pre-emption against the respondent, as the respondent had not only his own land contiguous to the suit Khasra number but also that he was equally a parti cipator in immunities and appendages being a co-sharer in Lakhti bearing Khasra No. 110/289 to 1030, which irrigated the land in dispute alongwith many other Khasra numbers. Against the judgment of the trial Court, the petitioner went in appeal to the Court of the District Judge, who vide his judgment, dated 12-4-1977 relying on Mughal Baz Khan v. Sher Afzal Khan (P L D 1976 Pesh. 19) allowed the appeal, set aside the judgment of the trial Court and decreed his suit. Being aggrieved of the said judgment, the respondent went to the High Court in revision and the same was allowed by a learned Single Judge, vide his judgment dated 23-5-1978.

We have heard Mr. Sibtul Hassan, the learned counsel for the petitioner, and Mr. Yunus Shah, the learned counsel for the caveator. The learned counsel contended before us that the respondent was no doubt a co sharer in the above Lakhti, but this would not mean that he had a superior right as against the right of the petitioner. He argued that according to the statement of Patwari (Exh. D.A.), the Lakhti in question measured 2 kanals and 18 marlas, out of which the share of the respondent was only 2/480 shares. He, therefore, contended that by this calculation, the share of the respondent would come to about few feet, and so the High Court should have rejected his revision application on that ground. In support of his contention he relied on the above Full Bench judgment Mughal Baz Khan v. Sher Afzal Khan.

We are afraid, there is no force in this contention. It is an elementary' principle of law that a co-owner of the property, so long as the property is not partitioned, is owner in every inch of the estate, and there is no known principle of law which lays it down. that unless he owned so much share therein, he could not claim to be a co-owner. Moreover, the Full Bench judgment relied upon by the learned counsel is distinguishable. Unlike the present case in which the respondent is a co-owner in the above said Lakhti, which only irrigates his land, as well as the land of other specified owners, in the Peshawar judgment, the plaintiff had based his superior right of pre-emption on the ground that he was a co owner in a public thoroughfare. Upon these facts, therefore, the High Court rightly rejected his claim with these observations----

"a person who is a co-sharer to 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 the said thoroughfare to anybody because everybody, whether a co-sharer or not, has the same right in the thoroughfare as he has."

The learned counsel lastly relied on Mardan Shah v. Shah Nazar Khan (P L D 1970 S C 245). But this also does not help him. In that case the plaintiff claimed to be a co-owner in the house (under pre-emption) only because he jointly owned a common wall, and the site underneath it, with the vendor of the house. Upon these facts, therefore, it was held : "The appellant's claim that by reason of his being a co-owner in a common wall of the disputed house, he should be deemed to be a co-sharer in the house in dispute to give effect to his pre-emptive right to that house, is too wild to need any further comment."

In this case, the respondent is admittedly a co-owner in the abovesaid Lakhti, which is unpartitioned. Obviously, therefore, his ownership right therein extend to every inch of the Lakhti, and so the High Court was right (we say so with respect) to non-suit the petitioner.'

This petition, therefore, fails and is dismissed.

Petition dismissed.

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