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-- S. 14 - Equality of status - Right of pre-emption -Ownership of petitioner of land in village wherein suit land situated established by Jamabandi-Same Jamabandi' showing vendee as owner in village Both pre-emptor and vendee have equal status of ownership and equal rights of purchase of suit land-No superior right of prior purchase vests in party having equal rights with purchaser of village immovable property.

Malik Muhammad Yusuf for Petitioner.

Ch. Aleem-ud-Din for Respondent No. 1.

Date of institution: 16th January, 1982.

This is A second appeal against the judgments and decrees of the Courts below whereby the suit of pre-emption brought by Muhammad Akbar Khan plaintiff-respondent against the defendant-appellant was decreed on payment of Rs. 30,755 including the costs of sale-deed.

The land in suit measuring 13 kanals and 6 marlas from Survey No. 996 under Khewat' No. 52 and. Khata' No. 685 situate in village Sarsawa, Koth was purchased by the vendee-appellant for a consideration of Rs. 30,000 from one Sakhi Daler Khan vendee-respondent.

The right of prior purchase was claimed by the plaintiff-respondent on two qualifications viz., firstly, he is a co-sharer in the land sold and secondly being an owner in the village has the right of prior purchase as against Aaqil Hussain Khan who comes from a distinct district namely Poonch, and who has none of the qualifications for a superior right so as to defeat the claim of the pre-emptor of the land sold to him (vendee-defendant)..

The vendee-appellant controverted the claim of the plaintiff-pre-emptor.

The amount of consideration is no longer in dispute. The full amount of consideration in addition to costs of sale-deed was awarded to the vendee appellant by both the Courts below to which finding, the pre-emptor had to yield.

After hearing the learned counsel for the parties and going through the record with a critical eye, I find that both the Courts below have completely failed to read correctly evidence of the parties in relation to the right of prior purchase claimed.

It was enjoined upon the plaintiff=pre-emptor to prove in the first instance that he is a co-sharer in the land pre-empted. Orally to say so is not enough to prove co-sharership unless it is supported by a documentary evidence. According to him in order to substantiate his plea, in this way, a certified copy of record of rights pertaining to the year 2001-2002 Bk. of the land in dispute was brought on record by the plaintiff. pre-emptor thereto imagining in futility that this would be helpful to him in the matter in issue but its perusal nowhere indicates that Muhammad Akbar Khan pre-emptor is a co-sharer in the land in dispute. However, his being an owner of the land in the village concerned is admitted one and for proof of that be has also brought a certified copy of record of rights pertaining to the land inherited by A him from his father. This Jamabandi' Exh. P. A. A.' pertains to Survey No. 998, a distinct land.

The learned District Judge referred to this 'Jamabandi' which discloses the mutation of the immovable property left by the father of the pre-emptor, in his favour and so it was held by the District Judge that Muhammad Akbar Khan pre-emptor being an owner of the land in the village concerned had a right of prior purchase of the land in suit. This was the only qualification which was construed by the learned District Judge in agreement with the -trial Court, in appeal and nothing of his co-sharership claimed could even evidently be found by them.

It is true that pre-emptor is an owner of the land in the village from which the land in suit was purchased by the vendee-defendant but at the same time it is evident on examination of 'Jamabandi' Exh. P. A. A.' that the, B learned District Judge failed to make reference to an entry therein which palpably shows that Aaqil Hussain Khan is also one of the owners in the village concerned I.e. Sarsawa, who bad purchased a piece of land from the very Survey No. 998 in the year 1973 (as disclosed by him to which there is no contradiction or any rebuttal) and that is jointly owned with the pre-emptor by him. The entry reads as under :-

This entry even gets testified by some of the statements of the witnesses of the plaintiff-respondent himself that Aaqal Hussain Khan had also purchased some other land in the village concerned over which some construction was also raised by him. This aspect of the case was very lightly dealt with by both the Courts below and the documentary evidence was not wholly and properly read. To say the least that no appraisal of the contents of this document was made by the Sub-Judge at all in context of the evidence adduced by the parties.

Thus, both the persons namely, the pre-emptor and the vendee-appellant being owners of the lands in the same village concerned have had equal status of ownership thereby meaning that they possess equal rights in case of C purchase of the land in suit. And this being the position, no superior high for purchase of the land in suit could legally be claimed by the plaintiff-pre emptor who stands on the equal footing with the vendee in relation to the purchase of the land in suit. No superior right of prior purchase can vest in a party having equal rights with the other party purchasing a village D immovable property.

That being so, an interference in the impugned judgments and decrees of the Courts below is warrantedly called for, that is to say, that both the Courts below have miserably failed to appreciate and read the evidence in its true perspective with the result that the suit was decreed unwarrantedly and that being so, this appeal is accepted with costs for the reasons above. and the impugned judgments and decrees of the Courts below are set aside and the suit of the plaintiff pre-emptor is hereby dismissed with costs throughout.

K. M. A. Appeal accepted.

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