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Civil Appeals Nos. 67 and 68 of 1978, decided on 22nd November, 1982.

(On appeal from the judgment and order of the Peshawar High Court, dated 11‑1‑1978, in R. 3. A. Nos. 61 and 68 of 1.971).

. P. Pro‑emption Act (XIV of 1950)‑‑

‑‑ S. 12 read with Constitution of Pakistan (1973), Art. 185(3)‑Pre‑emption in Leave to appeal‑Plea regarding participation in common amenities having not been pressed to its logical conclusion before any of courts below not permitted to be raised before Supreme Court Similarly plea as to plaintiff's land falling on thoroughfare not having been pressed earlier. not allowed to be raised‑Land purchased by appellant being not contiguous to respondents land on account of another intervening property, plaintiff's suit with regard to respondents' land, held, must fail.

Maulvi Sirajul Haq, Advocate Supreme Court and Bashir Ahmad Ansari, Advocate Supreme Court for Appellant.

Yaqub Hussain Zaidi, Advocate‑on‑Record for Respondents.

Date of hearing : 22nd November, 1982.

‑These two Appeals (C. A. 67,1 / 8 and 68/78) in which leave was granted arise out of the judgment of the Peshawar High Court dated 11‑1‑1978 ; whereby a regular second appeal, arising out of a pre‑emption matter, filed from the respondents' side, was allowed while a similar appeal filed by the appellant in the same case, was dismissed.

The appellant was purchaser of Khasra Nos. 164, 165, 166 and 168. A pre‑emption suit was filed by the respondents' side on the basis of contiguity of the land under sale with Khasra No. 163, belonging to the plaintiff. The learned trial Judge dismissed the suit on the ground that Khasra No. 168 was a totally different property; because it was separated from the remaining Khasra Numbers by an intervening Khasra No. 167, which belonged to the District Board as a thoroughfare ; and as the plaintiff could not succeed regarding Khasra No. 168, therefore, he could not succeed regarding Khasra Nos. 164, 165 and 166 because by his success regarding Khasra No. 168, the vendee had become co‑sharer in the land on the basis of which he would defeat the claim of pre‑emption. On first appeal filed by the plaintiff's side, the learned District Judge held that the plaintiff had superior right regarding Khasra Nos. 164, 165 and 166, on ground of contiguity with his Khasra No. 163 ; but Khasra No. 168 being a total separate property, he could not pre‑empt the sale regarding that Khasra Number. Accordingly the pre emptor's appeal was partly allowed regarding Khasra Nos. 164, 165 and 166 but was dismissed with regard to Khasra No. 168.

The plaintiff's side filed second appeal regarding Khasra No. 168 while the appellant/defendant challenged the first appellate judgment regarding Khasra Nos. 164, 165 and 166.

A learned Single Judge in the High Court did not differ with the learned lower courts that Khasra No. 168 was not contiguous to the plaintiff's Khasra No. 163 yet the suit was decreed in its entirety, even regarding Khasra No. 168 on the basis of the following observation :‑

"In another case reported in Saadullah Khan and 3 others v. Mohabat and 29 others P L D 1975 Pesh. 218, it was held that person purchasing land bearing more Khasra Numbers than one situated in the same Khata, pre‑emptor to such sale can get decree for such Khasra Numbers which are contiguous to' his land and the vendee cannot defeat pre emptor's claim to land contiguous to his land on the ground that he is to remain co‑sharer in the Khata after the decree. Such being the case. the appellant (pre‑emptor) can successfully, in my opinion, pre empt Khasra No. 168 which is in the same Khata as Khasra No. 166 and the finding of the learned District Judge that the plaintiff had a right to pre‑empt Khasra Nos. 164, 165 and 166 on the ground of contiguity and that he will lose Khasra No. 168 as he cannot claim the same on any ground, is not based on a correct interpretation of law. Therefore, I hold that the appellant is entitled to possession by pre‑emption to all the Khasra Numbers in the suit.

The underlined' part of the judgment quoted above, it seems did not represent, with respect it is pointed out, the correct reading of the judgment of the learned first appellate Court.

The vendee then sought leave to appeal which was granted to consider only the question whether on account of separate location of property, Khasra No. 168, the suit should not have been dismissed. The plea of the vendee/appellant that he had‑on account of failure of the plaintiff regarding Khasra Nos. 168 become a co‑sharer so as to defeat the claim of pre emption regarding Khasra Nos. 164, 165, 166, was repelled and leave was refused on this point.

Learned counsel for the appellant has raised only one point, namely, that there is consistent finding of facts by all the learned Courts below that Khasra No. 168 is not contiguous to the plaintiff's property in Khasra No. 163; and that there is an intervening property, namely, Khasra No. 167 which is not only a thoroughfare but also belonged to another party, namely, the District Board. That being so, the plaintiff/respondents could not succeed in the pre‑emption suit in so far as Khasra No. 168 is concerned. Learned counsel for the respondents without contesting the point that Khasra No. 168 is not contiguous to the plaintiff's property contended that the basis of the suit for pre‑emption, in addition to that of contiguity. was participation in common amenities and because the thoroughfare in question passed in front of the suit land in Khasra No. 168 as also the plaintiff's property in Khasra No. 163, therefore, the suit could validly be decreed in regard to Khasra No. 168 as well. And because, according to brim, a respondent decree‑holder is in law entitled to support the decree on basis of other than those mentioned in the impugned judgment, therefore, the learned counsel further contended, the appeals should be dismissed.

The plea regarding participation in common amenities was not pressed to its logical conclusion before any of the learned Courts below, therefore, we would not permit the same to tie raised now. Moreover, the site plan now relied upon by the learned counsel also does not clearly show that Khasra No. 163 belonging to the plaintiff falls on the thoroughfare (Khasra No. 1671. There seems to be another Khasra Number coming in between two Be that as it may, the plea not having been pressed earlier nor having been made the subject‑matter of trial, would not be permitted to be raised now. As Khasra No. 168 is not contiguous to Khasra No. 163, on account of another intervening property, there for, the plaintiff's suit with regard to this Khasra (No. 168) must fail. Accordingly these appeals. are partly allowed and while setting aside the High Court judgment and decree, the decree and the judgment of the learned first appellate Court are restored. There shall be no order as to costs.

Appeals partly allowed.

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