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Civil Revision No. 24 of 1985, decided on 26th May, 1985.

---S. 12--Pre-emption suit--Superior right of--Contiguity--Respondent claiming superior right of pre-emption over petitioner (Vendee) onaccount of his land being contiguous to suit land--Patwari of Halqa examined in Court deposing that two Khasras in suit situated at a considerable distance from each other and not falling in one block so as to give any right of defence to vendee in respect of Khasra with which his land was not contiguous--Order of Additional District Judge holding that petitioner had no claim upheld.

Muhammad Yunas Tanoli for Petitioner.

Fida Muhammad Khan for Respondents.

Date of hearing: 26th May, 1985.

The land measuring 87 Kanals 16 Marlas, represented by Khasra Nos. 1806 and 1707, situated in village Salam-Khand, was purchased by Gul Dad through Mutation No. 1130, attested on 26-6-1979, for an ostensible amount of Rs. 25,000. The sale was pre-empted by Gul Din who claimed that he being participator in the immunities and appendages of the suit land and having land contiguous thereto had superior right of pre-emption over the vendee-defendant. It was further alleged in the plaint that the sale consideration paid was only Rs.5,000 and in the sale mutation an inflated amount was entered as sale consideration. 2. The suit was contested by the defendant on factual and legal grounds, which gave rise to the following issues:

(1) Whether the plaintiff has got a cause of action

(2) Whether the plaintiff has got superior right of pre-emption

(3) Whether a sum of Rs. 25,000 has been paid or fixed actually

(4) Whether the defendant has made improvements, if so to what effect and extent

(5) Whether the plaintiff is estopped to sue

(6) Whether the suit is time-barred .

(7) Relief. 3. The finding of the learned trial Judge on issue No. 3 was against the defendant. On the basis of 5 yearly average the price of the suit land was fixed at Rs.15,840.70. Issues Nos. 4, 5 and 6 were also not proved in the evidence brought on record and were, therefore, decided against the defendant. On issues Nos. 1 and 2, which were discussed together, the finding of the learned trial Judge was that since both the parties were having land contiguous to different Khasra numbers, therefore, the pre-emptor had failed to prove his superior right of pre-emption over the defendant. Both these issues were, therefore, decided against him. The learned trial Judge, consequently, vide his judgment and decree dated 12-6-1984, dismissed the pre-emption suit filed by the plaintiff, leaving the parties to bear their own costs. 4. The legal heirs of Gul Din pre-emptor were not satisfied with the result of the suit instituted by their ancestor and they filed two separate appeals, which were registered as Appeal No. 64/13 and Appeal No. 68/13 of the year 1984, in the Court of Additional District Judge, Haripur against the aforesaid decree of the learned Civil Judge. Both the appeals were taken up together by the learned Appellate Judge, who, vide his judgment and decree dated 11-12-1984, while partially accepting both the appeals, passed a decree for possession by pre-emption of the land represented by Khasra No. 1707 in favour of the legal heirs of the pre-emptor on payment of Rs. 8,174.54. This finding was recorded by the learned Appellate Judge on the basis of_ admission made before him by both the learned counsel for the parties that the pre-emptor was having land contiguous to Khasra No. 1707 alone but not to Khasra No. 1806 which was located at a considerable distance from Khasra No. 1707 and with which the vendee-defendant was also owning contiguous land. The learned Appellate Judge also found the two disputed Khasra numbers not situated is one block.

5. The vendee-defendant was not happy over the decision made by the learned Appellate Judge in partially decreeing the suit against him. He has, therefore, come up in revision to this Court and in the petition filed by him he has prayed for setting aside the decree passed by the learned Appellate Judge and for restoring the decree passed by the learned trial Judge.

6. Mr. Muhammad Younas Tanoli, Advocate appeared on behalf of the petitioner and Mr. Fida Muhammad Khan, Advocate appeared on behalf of respondents. Since from the evidence recorded at the trial it was not clear as to whether or not the two disputed Khasra numbers were situated in one block, Patwari Halqa was examined in this Court as a Court witness. His statement would clearly show that the two Khasra numbers in suit having been situated at a distance of about 2000 yards from each other were not situated in one block. The learned counsel for the petitioner argued that the learned Appellate Judge having found that the pre-emptor was not having land contiguous to Khasra No. 1806 has dismissed the suit with respect to it and. that since with Khasra No. 1806 in suit the vendee-petitioner was having contiguous land, comprising of Khasra No. 1810, he would, therefore, be deemed having land contiguous to Khasra No. 1707 in suit because both the disputed Khasra numbers being part of one Khata No. 164/134 would be deemed to be situated in one block. In support of his argument the learned counsel for the petitioner relied on Muhammad Yousaf's case P L D 1970 Pesh. 160. The learned counsel for the respondents, however, argued that from the statement of Patwari Halqa recorded today in this Court it is clear that the two disputed Khasras are situated at a distance of about 2000 yards from each other and for that reason, no matter they form part of one Khata, they cannot be regarded as situated in one block. That being so, the learned counsel urged, the finding of the learned lower Appellate Judge that the two Khasra numbers in suit did not form one block or one property was correct. He also argued that the authority relied upon by the learned counsel for the petitioner did not lay down the law as was understood by the learned counsel and that it did not advance the case of the petitioner.

7. I have considered the arguments of the learned counsel for the parties in the light of the evidence brought on record and the admission made by the learned counsel representing the parties before the learned lower Appellate Judge, which has been specifically mentioned in the impugned judgment. The two Khasras in suit are situated at a considerable distance (2000 yards) from each other and as such, do not fall in one block so as to give any right of defence to the vendee-petitioner in respect of the Khasra with which his land was not contiguous. The authority relied upon by the learned counsel for the petitioner, as rightly pointed out by the learned counsel for the respondents, was of no help to the petitioner's case because it was applicable in the circumstances where different Khasra numbers were situated adjacent to each other, thus forming one block. This is not sol here and no rational thinking would convert the two Khasra numbers in suit into one lot or one block. The finding of the learned lower Appellate Judge in this regard was, therefore, correct.

8. Finding no merit in this revision petition, it is hereby dismissed with costs.

M.Y.H. Petition dismissed.