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Civil appeal No. 18 of 1982, decided on 29th October, 1985.

(On appeal from the judgment and order, dated 23‑5‑1979 of the Peshawar High Court at Peshawar in Regular First Appeal No. 275 of 1976).

‑‑‑Art. 185(3)‑‑Pre‑emption‑‑Co‑sharers' preferential right‑‑Leave to appeal granted to consider whether respondents were co‑sharers in a Khata so as to have a preferential right over appellant to pre‑empt side of Khasra number comprised in that Khata.‑‑[Pre‑emption].

‑‑‑Ss. 5 & 12‑‑Pre‑emption‑‑Co‑sharers in joint Khata‑‑Sale of land from joint Khata‑‑Suit by respondents for possession of land through pre‑emption and respondents and being co‑sharers and not having preferential right to pre‑empt sale, suit decreed ‑‑Appellant‑vendee claiming that predecessor‑in‑interest of vendor was an exclusive owner and, therefore, respondents could not be regarded as co‑sharers‑‑Sale of Hissadari rights having taken place before partition of land in joint Khata and Hissadari share involving proprietary interest to extent of their share in joint Khata, exclusive ownership could not be acquired as a result of Khangi partition‑‑Supreme Court dismissed appeal.

Muhammad Muzaffar Khan v. Muhammad Yusuf Khan P L D 1959 S C 9 rel.

Muhammad Yunus Shah, Advocate Supreme Court with M. Qasim Imam. Advocate‑on‑Record (absent) for Appellant.

Z. Mahfuz Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 29th October, 1985.

‑Leave to appeal was granted to consider whether the respondents were co‑sharers in Khata No. 295 so as to have a preferential right over the appellant to pre‑empt the sale of Khasra Nos. 69, 69/1 and 469 comprised in the aforesaid Khata No. 295.

Arbab Muhammad Ayub Khan sold 32 Kanals and 11 Marlas of land comprised in the aforesaid Khasra numbers for Rs.45,000 to Haji Said Khan, the appellant herein, through sale Mutation No. 1389, which was attested on 7‑9‑1972. The respondents claiming to be the co‑sharers in the above Khata sued for the possession of land through pre‑emption on 28th of. July, 1973, and succeeded as the suit was decreed on 3rd of November, 1976. Against this decree, both the appellant and the respondents appealed to the Peshawar High Court, Peshawar. The appel lant challenged the decree while the respondents confined their objection against the finding in regard to the market value of the land sold. The High Court dismissed the appeal of the appellant and so also that of the respondents. Before the High Court, 'the question as to which of the parties had the preferential right was agitated and the finding of the High Court was that the respondents being the co‑sharers had the preferential right to pre‑empt the sale of the land.

Here before us the learned counsel for the appellant laid emphasis on the fact that Ataullah, the predecessor‑in‑interest of Arbab Muhammad Ayub Khan was an exclusive owner as is reflected by the Khana‑e‑Malkiat of register Haqdaran for the year. 1964‑65. as a result of an earlier partition between him and Ibrahim Khan, and, therefore, the respondents could not be regarded as co‑sharers in the Khata. But while advancing this argument, the learned counsel omitted to notice that Ibrahim Khan had, before the partition. sold his share in the land and as the sale was of his Hissadari rights, accordingly, the entries were made in the cultivation column although the name of Ibrahim Khan was written in Khana‑e‑Malkiat as before. That the Hissadari share involves proprietary interest also cannot be denied and if there was Khangi partition between Ibrahim Khan and Attaullah Khan the former could not represent the vendees or their legal representatives of the Hissadari shares as, under the law, they have stepped into his shoes to the extent of their share in the joint Khata. Accordingly, it was a misconception to say that Attaullah had become the exclusive owner as a result of Khangi partition. The High Court, accordingly, relying on the judgment of this Court Muhammad Muzaffar Khan v. Muhammad Yusuf Khan, P L D 1959 S C 9 came to the conclusion that the respondents were co‑sharers in the Khata. The learned counsel for the appellant, in this view of the matter, half‑heartedly conceded that the respondents were co‑sharers in the Khata.

The appeal, accordingly, fails and is hereby dismissed.

M. I. Appeal dismissed.

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