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Regular Second Appeal No. 511 of 1972, decided on 17th May, 1986.
----S. 15--Civil Procedure Code (V of 1908), 5.100--Right of pre-emption--"Co-sharer". connotation of--Persons purchasing specific Khasra numbers though not fractional share of Khewat which was undivided, held, would be co-sharers and would be vested with right of pre-emption as envisaged in S.15(b) of Pre-emption Act, 1913.--[Words and phrases].
Mir Alam Khan v. Abdul Hamid Khan A I R 1944 Pesh. 40; Matu v. Hirde 44 Punjab Record 1894; Rajindra Singh v. Umrao Singh A I R 1925 Lah. 223; Jawala Shanker Sahai v. Bohra Sri Ram A I R 1930 All. 729 and Mahla Singh v. Harnam Singh 37 P L R 276 ref.
Muhammad Muzaffar Khan v. Muhammad Yusuf Khan P L D 1959 SC 9 rat.
Ch. Muhammad Anwar Bhinder for Appellants.
K.M. Virk for Respondents.
Date of hearing: 17th May, 1986.
The facts' relevant for the purpose of disposal -of this second appeal, wherein the limited pointed argued before this Court is whether the pre-emptors-respondents enjoyed right of pre-emption superior to that of the vendees-appellants, may be shortly stated. The appellants purchased the land in dispute measuring 46 Kanals 18 Marlas, entered in Khewat No. 32, Khatunis Nos. 123 to 126, Khasras Nos. 734-1254/738/ 1-1344/1312/748-1255/740-741-746-1342/1310/748-1346/1314/759, recorded in the Jamabandi for the year 1960-61 (copy Exh. P. 4), situate in the area of village Maddo Khalil, Tehsil and District Gujranwala, from one Waqar Ahmad, who had been joined as defendant 8 in the suit, for Rs.9,000, by means of registered sale-deed, whose copy is Exh. P.6, on the 11th August, 1965. Claiming themselves to be co-sharers of the land in question and owners of the Patti wherein the suit land lay, the respondents asserted superiority of their pre-emptive right as against the appellants who were said to lack these qualifications. The respondents instituted suit to pre-empt the sale on the 1st September, 1966. The appellants, inter alia, denied the preferential pre-emptive right of the respondents and resisted the suit. The learned Civil Judge, Gujranwala, accepted the respondents' plea that they had right of pre-emption superior to that of the appellants and decreed the suit on the 14th March, 1972. In appeal preferred by the appellants against the decision of the learned trial Court they did not dispute during arguments the finding touching the respondents' superiority of pre-emptive right. The learned Additional District Judge, Gujranwala, dismissed their appeal on the 29th June, 1972. In further appeal to this Court the appellants made an attempt to show that the respondents did not have a better right of pre-emption.
In order to appreciate the argument of the learned counsel for the appellants the factual position regarding the respondents' ownership needs to be kept in view. The respondents had purchased 32 Kanals of land bearing Khasra No. 742 of Khatuni No. 122 and Khasras Nos. 743, 744 and 745 of Khatuni No. 121 of Khewat No. 32 (which is the Khewat of the land in dispute) about a year before the sale of the disputed land took place. Mutation No. 591 (copy Exh. P.1) was entered on the 18th October, 1961, and sanctioned on the 12th December, 1961, in respect of the said sale. The learned counsel for the appellants maintained that since the respondents had purchased land bearing specific Khasra numbers and not fractional share of the land entered in Khewat No. 32 they could not be taken to be co-sharers of the land of the Khata. In support of his contentions he relied upon the decision of the Peshawar Judicial Commissioner's Court reported as Mir Alam Khan v. Abdul Hamid Khan A I R 1944 Pesh. 40 and the judgments referred to therein, namely, Matu v. Hirde 44 Punjab Record 1894, Rajindra Singh v. Umrao Singh A I R 1925 Lah. 223, Jawala Shanker Sahai v. Bohra Sri Ram I R 1930 All. 729 and Mahla Singh v. Harnam Singh 37 PLR 276. The learned counsel for the respondents cited the judgment of the Supreme Court of Pakistan, Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLO 1959 SC (Pak.) which, after distinguishing the precedent cases quoted by the learned counsel for the appellants, laid down the A rule which recognises the respondents to be co-sharers of the land in dispute as the Khewat admittedly was undivided and had not been partitioned. In that view of the matter the respondents' right of pre-emption is indisputably superior to that of the appellants. The judgment under appeal is unexceptionable and needs no interference.
The appeal is dismissed with costs.
A . A . Appeal dismissed
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